CLASSICAL LIBERALISM
By Noah Nissani
Copyright 1998 -- Authorized free distribution of
non-modified copies for non-commercial purposes.
Chapter IV
POLITICS -- Part I
Contents:
1. Introduction
2. Equality
3. Liberal Equality
4. Liberty
5. Restriction of Government Functions
6. Separation of Powers
7. Legislature
8. Executive Branch
9. Judiciary
10. Their Mutual Control
1. Introduction
In his introduction to a radio-broadcasted course on Fascism,
a known Israeli political writer and lecturer classified the
20th-century ideologies under two categories, which he
referred to as "constructive" and "non-constructive",
respectively. Under the "constructive" category, he included
those ideologies, such as Marxism, Fascism, and Nazism, which
are characterized by their commitment to building a new model
of society, while in the second category he placed only
Liberalism, which in his opinion lacks an innovative model of
society.
Nothing could be further from the truth. Modern Liberalism
emerged in the 18th century against the background of a
society divided into classes -- noblesse, bourgeoisie,
peasants, Jews, serfs and slaves, ruled by absolute monarchs,
and characterized by religious intolerance. Its aim was to
create a totally different society, based on the freedom and
equality of all human beings, who would be responsible for
themselves and their families, and share the collective
responsibility for the public affairs and dictates of the
brotherhood of men. A society ruled not by men but by law,
and characterized by free thought and religious tolerance.
The error of the above-mentioned lecturer may be explained by
the fact that, in contrast with the frustrated and disastrous
totalitarian (1a) attempts to change society, the successful
liberal revolution was achieved more by the abstention, than
the active intervention of the authorities. It was the result
of the liberal belief in society's capacity for self-
transformation, together with the liberal resistance to any
attempt to transform the society by decree (1b).
What is worth noting with regard to the above classification
is the grouping together of the totalitarian ideologies --
Marxism, Fascism, and Nazism -- in contrast with the usual
Marxist tendency of putting all anti-Marxist ideologies under
the common label of the "right". From the Marxist point of
view, Nazism, Fascism, and Liberalism were "reactionary
ideologies", viz, opposed to Marxism (1c), and since Marxism
the was the "left", they were the "right".
Historically, the political denotation of the terms "right"
and "left" originated in the French Revolution, when the
liberal and moderate Girondins sat on the right side and the
extremist Jacobins on the left of the National Assembly. The
rightist Girondins were those who carried out the liberal
revolution, abolished noblesse privileges, and established
the equality under the law (1d), while it was the ascension
to power of the leftist Jacobins that ended the "liberal
period" of the French Revolution (1791-93), and launched the
"Reign of Terror".
The modern totalitarian ideologies share with the leftist
Jacobins all their essential characteristics, such as
extremism (1e), Manicheism (1f), totalitarianism, as well as
the fact that all them led to terror and tyranny.
Furthermore, their central leaders, Mussolini and Hitler,
were both originally Marxists, who nearly at the same time
arrived at the conclusion that something was going wrong with
Marxist-Leninist ideology (1g). Both built their respective
new ideologies, Fascism and Nazism, by introducing changes to
their common Marxist base. Hence, any logical classification
of the 20th century ideologies, must put the totalitarian
ones -- Marxism and its derivatives Fascism, and Nazism -- on
the left, together with their Jacobins precursors, and
Liberalism in the right as Girondins' legacy.
Benito Mussolini (Amilcare Andrea (1883-1945)) was before
World War I an eminent Marxist ideologist, whose prominence
earned him the nickname of "Duce", namely, leader or Fuhrer.
He was expelled from the Italian Socialist Party in 1915 for
supporting Italy participation in World War I. it was in this
period that Mussolini switched his support from the Marxist
axiom of "class' war" to "social harmony", i.e., from the
elimination of the bourgeoisie to the legitimization of all
society's sectors. The latter, according to his new ideology
must organize into corporations or unions, fasci in Italian,
which would represent them in the government. Shoemakers
would be represented by shoemakers and engineers by
engineers. This, in Mussolini opinion, would be a genuine
democracy based on "the authentic representation of the
people" (1h), and hence better than the distorted liberal
democracy. In the latter, was sustained by the supporters of
Corporativism, all the people's representatives belong to an
elite of politicians of bourgeois origin. Social justice
would be achieved in the corporative regime by negotiation
between the representatives of employees and employers, under
the supervision of the state (1i).
Nazism also evolved from Marxism by substituting for the
universal war against the bourgeoisie the national war
against the Jews. According to Hitler's new conception, not
all the capitalists were responsible for the suffering of the
German people, but only the foreign ones -- especially those
who were strangers in every land, the landless, the Jews. It
was in accordance with this switch from international to
national Manicheism, that the German Worker's Party (parallel
to the Russian Worker's Party of Lenin and other contemporary
worker's parties through the world) changed its name in 1920
to the National-Socialist Party (Nazi). Hitler also
transferred from the capitalists to the Jews the Marxist
accusation of being the promoters of World War I and warned
that they would be eliminated if and when they again
inflicted a second world war on Germany
Another common characteristic of Marxism and its derivatives,
Fascism and Nazism, was their frequent changing of names and
ideology. The Russian Social Democratic Workers' Party
changed its name to the Communist Party in 1918, when
switching from evolutionary to revolutionary ideology. Its
Israeli counterpart, the Israeli Worker's Party (Mapai),
changed its name to Labor Party (Avoda), when it replaced its
Marxist ideology with a "syndical socialism" very close to
Mussolini's Corporativism (1j). Today the Israeli Labor
Party, like other former Marxist Parties through the world,
supports a free-market economy and has wiped out its historic
connection with the workers' unions. Currently, it is looking
for a new name that would help to forget its Marxist past.
The cause of this instability seems to rest in the fact that
all these totalitarian ideologies are the fruit of one-man
improvisation, be he Marx, Mussolini or Hitler, and therefore
lacking the millenary roots and stability of Liberalism.
Furthermore, whereas all totalitarian ideologies see the
citizen as a ward in need of protection and the government as
responsible for his welfare, the liberal ideal of man is the
independent and self-sufficient one -- the Robinson Crusoe or
the far-west colonizer. Certainly, liberty has a price: risk,
while the quest for security leads to submission (1k).
Aristotle divides men into those who are free by nature, and
those who are satisfied with the security of slavery (1l). It
was the desire for security what guided the ancients of
Israel when they asked Samuel a king, or the European
peasants when they voluntarily submitted themselves to feudal
lords. It was also the protective intervention of the
Egyptian government, when saving the people from the risk of
starvation during the seven years of famine foreseen by
Joseph, that ended with the people being enslaved by Pharaoh
(Genesis, 47:13). Universal experience has taught that those
who prefer security over freedom, lose both of them.
-------------------
(1a) The term "totalitarian" refers only to the division of
functions between government and citizens, stripped of all
other usual connotations. The more functions assigned to the
government, the more totalitarian the regime is.
(1b) "Fatal is the illusion which legislators fall into when
they pretend their talent and desire can change the nature of
things or supplant nature by sanctioning and decreeing
creations" (Bernardino Rivadavia, first president of
Argentina, 1826 -- Quoted by Juan Bautista Alberdi in "The
Bases and Starting Points for the Political Organization of
the Argentine Republic" 1852). Notice that these prophetic
words were uttered more of twenty years before the appearance
of Karl Marx's "Communist Manifesto" (1848).
(1c) Marx foresaw that the workers' "action" would provoke
the bourgeoisie's "reaction", and coined the epithet
"reactionary" for all opponents to Marxism. Thereafter, the
term "reactionary" acquired, under persistent Marxist
propaganda, the negative connotation of opposition to all
social advance.
(1d) Many Girondins were aristocrats, one of the more
distinguished among them being the Marquis de Lafayette,
commander of the revolutionary National Guard and hero of the
American Revolution. The presence of aristocrats fighting for
the suppression of noblesse privileges, as well as of
bourgeois supporters of Marx's ideology, shows the fallacy of
the Marxist picture of politics as class struggle.
(1e) Extremism is closely related to haughtiness, i.e., the
total self-assurance of being right. If what one is doing is
beyond all shadow of a doubt for the benefit of humankind
goodness, then "the end justifies the means". "Those who
think that all virtue is to be found in their own party
principles push matters to extremes" (Arist. Politics V, IX)
(1f) Mani or Manicheo was the founder of a Persian sect with
Zoroastrian and Christian elements in the 3th century, which
spread throughout Asia and Europe and was characterized by
the dualistic belief in the existence of two opposing
principles, one good and the other evil. Used in a political
sense Manicheism applies to ideologies focused on combating
evil enemies. The French Revolution, for example, involved
two clearly differentiated ideologies, represented by
Girondins and Jacobins, respectively -- the former
non-Manicheist, and the second strongly Manicheist. The two
ideologies are faithfully represented by the free-of-hate
liberal motto "Liberty, Equality, Fraternity", and by the
blood-thirsty Marseilles' (1892) words "with impure blood we
will irrigate our furrows", respectively. In the 20th
century, Marxism, Nazism, and to a lesser degree Fascism, are
characterized by their Manicheism -- in the first case
against the bourgeoisie, and in the last two against the
Jews.
(1g) It may be that it was the murder of millions of citizens
carried out by Lenin and Trotsky, while imposing the Marxist
regime on the subjugated peoples of the Russian Empire, that
motivated numerous Marxists to change their minds in these
years.
(1h) The principle of the "authentic representation of the
people" was also present in Lenin's concept of democracy. It
marked the difference between the Workers' Soviet and the
Russian Parliament or Duma. In practice, the Marxist
Workers'Soviet and the fascist Representation of the
Corporations resulted a much more controllable body than the
liberal parliaments composed of politicians. It was their
easy submission that allowed the running of the Marxist and
the fascist tyrannies under the guise of apparent democracy.
(1i) When it witnesses the salary negotiations between
representatives of workers, employers, and government, the
Israeli people is not aware that it is attending a genuine
fascist spectacle.
(1j) I know that this will sound very strange for the Israeli
reader and in total contradiction to all that he has been
taught on Fascism. But he must remember that he has heard the
Marxist version, while the only way to really know what an
ideology is, is to hear the version proffered by its
supporters.
(1k) "The secret of Happiness is Freedom, and the secret of
Freedom is Courage" (Thucydides, Pericles' Funeral Oration).
Woefully the courage needed to be free, is not part of the
universal human inheritance.
(1l) "For that which can foresee by the exercise of mind is
by nature intended to be lord and master, and that which can
with its body give effect to such foresight is a subject, and
by nature a slave;" (Arist., ib., I, II)
Idea that the Bible accepts: "And if it happens that he [the
slave] says to you, 'I will not go away from you', because he
loves you and your house.." (Deuteronomy, 15:16).
And Charles Louis de Secondat Baron de Montesquieu (1689-
1755) rejects: "Aristotle endeavors to prove that there are
natural slaves; but what he says is far from proving it" (The
Spirit of the Laws i, XV, 7)
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2. Equality
Human equality and fraternity are fundamentals of the Bible
as well as of the Greek classics. In Biblical mythology men
were twice descendants of a common father, first Adam and
Eve, and then Noah, father of all races. Love and equality
under the law for citizens and strangers, is one of the more
times repeated Biblical commandments (2a). Socrates (469-399
BC) proposed an egalitarian society based on common property
of assets, women, and children. Aristotle (384-322 BC), for
his part, identified justice with equality: "Now what is just
or right is to be interpreted in the sense of 'what is
equal'" (Aristotle, Politics III, XIII), and defined,
"constitutional rule", as "a government of freemen and
equals." (ib. I, VII).
The ideal of men's equality is, therefore, deeply-rooted in
both ancient sources of Liberalism. Equality, however, is not
so simple a question. Men are not equal by nature. Not all
are born with the same health, wisdom, valor and natural
inclinations. As already noted, Aristotle accepted the
existence of men who are slaves by nature: "It is clear,
then, that some men are by nature free, and others slaves,
and that for these latter slavery is both expedient and
right." (ib. I, V). The Bible also deals with slaves that
resist freedom: "Then you shall take an awl and thrust it
through his year to the door, and he shall be your servant
for ever." (Deuteronomy 15:17). And Charles Louis de Secondat
Baron de Montesquieu (1689- 1755) though he rejected the idea
of "slaves by nature", accepts the impossibility and
inconvenience of a strict equality: "Though real equality be
the very soul of a democracy, it is so difficult to
establish, that an extreme exactness in this respect but not
be always convenient." (The Spirit of the Laws, , i, V, 5.)
Wealth is perhaps the most problematic aspect of inequality.
The laws of many ancient societies whose economy was based on
agriculture included measures to preserve the egalitarian
distribution of land. The Bible establishes the return of the
land every 50 years to its original owner: "In this Year of
Jubilee each of you shall return to his possession."
(Leviticus 25:13). Aristotle tells us that similar measures
were taken in some Greek states: "Formerly in many states
there was a law forbidding any one to sell his original
allotment of land." (Ib. VI, IV). And Montesquieu for his
part affirms: "The law which prohibited people having two
[land] inheritances was extremely well adapted for a
democracy." (ib., i, V, 5.)
Rules preventing the forced selling of the means of
subsistence and housing are present in the liberal
legislations of all ages. Aristotle tell us: "There is a
similar law attributed to Oxylus, which is to the effect that
there should be a certain portion of every man's land on
which he could not borrow money." (ib. VI, IV). And similar
dispositions appear in many modern liberal constitutions and
legislations, such as in the Constitution of the State of
California (1849): "The legislature will save by law certain
portions of the domestic and other goods of every family head
in order to avoid its forced selling" (2b).
Nevertheless, there are forms of accumulated wealth which
contribute to the creation of means of production and hence
to an elevated standard of living of the population. They
constitute, therefore, a form of inequality favorable to "the
common good of the citizens." Aristotle, conscious of this
fact, added a prudent qualifying comment to his assimilation
of justice to equality: "and that which is right in the sense
of being equal is to be considered with reference to the
advantage of the state, and the common good of the citizens."
(Ib. III, XIII).
In primitive societies there were three main forms of wealth
-- land, livestock, and valuable metals. While land
accumulation was seen as an antisocial action, and therefore
condemned by Biblical (2c) and Greek classics, wealth in the
form livestock and metals were accepted and considered one of
God's ways of blessing the just and hardworking. This
different attitude to wealth in terms of land as opposed to
in livestock and metals is justified by the fact that the
latter create new means of production, rather than merely
gathering existing ones.
Etymologically "capital" derives from the Latin word caput =
head, and capital originally meant wealth in terms of numbers
of animals' heads. Capitalism began, therefore, when mankind
succeeded in replacing hunting by domesticating the animals
needed for nutrition and clothing, viz. when production
replaced gathering. Also in the ancient societies valuable
metals were a form of wealth necessary to the development of
commerce, which was then, as it is now, a constituent of the
wealth of the nations (2d).
Following the Bible and the Greek classics, concern for just
land distribution was present in the thinking of many modern
liberals. Also the Agrarian Reform, based on the principle
that land must be owned by the one who works it, has enjoyed
widespread liberal support. The Industrial Revolution,
however, has changed the situation. On the one hand,
agriculture has lost its significance as the main means of
subsistence, being replaced by many other, and partially new,
occupations. On the other hand, the improvement of tools and
systems of production has rendered inefficient the "economic
unities", which served as the basis for the Agrarian Reform
(See Note 6 in Chapter II.) Presently, land and agriculture
must be considered similar to any other asset and branch of
economy, and must be stripped of their ancestral mystic aura.
The Industrial Revolution developed a form of wealth, which
had previously existed only at an embryonic stage: Capital
invested in the continuous creation and improvement of
products and means of production. New and constantly improved
agricultural tools freed the majority of the population from
the need to produce food. The production of new commodities
made demands on the manpower formerly occupied in agrarian
activities. Industry, commerce, education, health, welfare,
arts, research and development become the main occupations.
New commodities which appear almost daily, are seen as basic
needs for an increasing part of the population. Nutrition,
which is the main agricultural production, remains a central
preoccupation only in undeveloped countries that have not
succeeded in establishing a liberal economy and carrying out
the Industrial Revolution.
Thanks to the capital invested in investigation and
development in all areas of human life from health to
entertainments, the living standard of the masses has been
rising at a dizzying pace over the last 250 years. The
unequal distribution of wealth, similar to the potential
difference of potential in electrical circuits, is required
in order to maintain alive this process. The resulting rise
in the standard of living, however, has increased the
workers' savings capacity, which through investment in bank
deposits and stocks, has led to a steady increase in the
workers' participation in the ownership of factories. We are,
therefore, not so far from the day when workers will be the
main owners of the means of production. This would be the
liberal realization of the Marxist dream. However, it would
happen through a free social process, without government
intervention, dictatorship, enslavement, murder, and final
collapse.
-------------------
(2a) "One law shall be for the native-born and for the
stranger who dwells among you." (Exodus 12:49) "Therefore
love the stranger, for you were strangers in the land of
Egypt." (Deuteronomy 10:19), and in many other sites.
(2b) Translated from the Spanish version in "Bases" of Juan
B. Alberdi (1852).
(2c) "Woe to those who join house to house; They add field to
field" (Isaiah 5:8)
(2d) "True is that when a democracy is founded on commerce ,
private people may acquire vast riches without a corruption
of morals" (Mont., ib., i, V, 6.)
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3. Liberal Equality
Since the concentration of wealth is required for the
development of an industrial-commercial society, wealth
equality does not fulfill Aristotle's condition of being for
"the common good of the citizens". Therefore, what remains of
the liberal principle of equality is "equality under the
law", which formally gives to everybody the possibility of
access to every social position and wealth.
This formal possibility, however, is not and cannot actually
be the same for all. Everyone does not inherit the same
wealth, health, and mental capacity, nor does everyone grow
up in the same kind of home and receive the same initial
education. Furthermore, children who are poorly-fed or
unhealthy will not achieve, satisfactory development either
in physical or intellectual terms. Certainly, no liberal
would like to live in a society where children would be born
by means of artificially selected ovules and spermatozoa and
raised away from their parents, in state egalitarian
educational establishments.
Therefore, there is no complete solution for this initial
inequality. Yet what a modern liberal society can and must
do, is to assure for every child adequate food, medical
attention and instruction. This was a main aspiration of
Liberalism throughout the ages (3a), which, however, was not
possible when, before the Industrial Revolution, nearly all
the population working in food production scarcely succeeded
in providing the needed food for humankind survival. But
today, when in the developed nations only a small proportion
of the available workforce is involved in providing all the
food needed and the great majority works in the production of
secondary commodities, society can and must do it.
But it is clear, that "society" must not be interpreted in
the sense of "state" or "government." Fortunately, there are
a multitude of men and women, who, regardless of whether they
are motivated by pure altruism or by the universal seeking
for self-appraisal, are eager to offer from their time,
energy, and money to every worthwhile cause. There is not
doubt that private initiative, be it voluntary or commercial,
can deal with children's needs more efficiently than
government. (See the last paragraph in Chap. I Sec. 4)
-------------
(3a) ""And indeed in a well-regulated democracy, where
people's expenses should extend only to what is necessary,
every one ought to have it." (Montes.,ib.,i, V, 6.)
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4. Liberty
Echoes of continuing struggle for liberty are perceived
throughout the history of humankind. This struggle is the
leitmotif of the Bible, whose political philosophy, religious
conception, and moral teachings are presented through the
saga of an enslaved people, which, after being liberated from
human domination, surrenders itself voluntarily to the rule
of the law. This conflict between the rule of law -- source
of liberty, and the rule of men -- source of oppression, is
also found in the liberal Greek and modern political
philosophers. These philosophies share the principle that
coincide in that individual liberty can exist only under the
rule of law, which they do not hesitate to denote, following
the Bible and Aristotle, as the "rule of God and Reason"
(Aristotle, Politics, III, XVI).
The struggle for liberty was never a "war of classes".
Liberty lovers as well as those who, in contrast, prefer the
real or imaginary security associated with dependence
relations, have been always present in all social classes.
Moses, the adoptive son of Pharaoh, biologically related to
the slaves yet personally a member of the ruling family, was
the one who freed his enslaved brethren. And the latter were
those who rebelled against Moses when, confronting the
difficulties of freedom, longed for the "pots of meat" in
Egypt (Exodus 16:3). Aristocrats such as the Baron de
Montesquieu and the Marquis of Lafayette headed the liberal
revolutions in Europe and America, and white abolitionists
fought for abolition of slavery throughout the world. While
they were European peasants who, seeking protection,
voluntarily submitted their freedom and lands to feudal
lords.
Over a period of nearly two centuries, from the death of
Joshua to the enthronement of Saul as first king of Israel,
the tribes of Israel were ruled by judges and a deliberating
body -- the "Elders of Israel". The main function of the
Judges was to administer justice by applying the law dictated
by Moses during the forty years of peregrination through the
desert. The Bible describes this period by repeating the
phrase: "In those days there was no king in Israel; everyone
did what was right in his own eyes" (Judges 21:25). It was
not a state of anarchy, because ordinary men are able to
discern between right and wrong; and because they were guided
by a stable, concise, and easily-understandable law, which
was voluntarily accepted by their fathers over two centuries
ago. It was, on the contrary, a faithful realization of the
liberal dream described in the Bible as the reign of God:
"..they have not rejected you, but they have rejected Me,
that I should not reign over them." (I Samuel 8:7), was the
answer of God to Samuel, when the Elders of Israel asked a
king.
The connection between liberty and political regime is
already evident in the admonition of Samuel to the Elders of
Israel in the 11th century BCE (1 Samuel 8. Quoted in Chap. I
Sect. 4.) The issue was also investigated by Aristotle in the
4th century BCE, and by Montesquieu two millennia afterwards.
Their investigation of hundreds of political regimes have
yielded a common conclusion. that whatever the regime --
monarchy, aristocracy, or democracy -- liberty will exist
only under the rule of law, and never under the rule of men
(4a).
Rule of law, as opposed to rule of men, means that the powers
established by law but necessarily exerted by men must be
restricted to what the law defines as their responsibilities
and duties (4b). On the contrary, the law must not specify
citizens' activities, but only limited them when it is
necessary to preserve the rights and the liberty of others.
This is the case, because men are free and responsible
beings by nature, and are conscious of their obligations and
moral restrictions, whose liberty is required more for the
purpose of fulfilling obligations than for doing what they
want. owed, Citizens are therefore
subject to the law in a much more limited sense than are the
authorities. While the rule of law implies that the
authorities are restricted to the specific functions
determined therein, it gives citizens the right to do
anything that is not specifically forbidden (4c).
(4a) "The law ought to be supreme over all" (Arist. ib., IV,
IV)
"Therefore he who bids the law rule may be deemed to bid God
and Reason alone rule, but he who bids man rule adds an
element of the beast; for desire is a wild beast, and passion
perverts the minds of rulers, even when they are the best of
men. The law is reason unaffected by desire." (Arist. ib.,
III, XVI)
Compare with the answer of God to Samuel in 1 Samuel 8:7,
when the elders of Israel asked a king: "And the Lord said to
Samuel... they have not rejected you, but they have rejected
Me, that I should not reign over them." and with Pirkei Avot
III, 5, (2th century CE): "Who submit himself to the Tora, is
liberated from submission to the King."
(4b) "And the rule of the law, it is argued, is preferable to
that of any individual. On the same principle, even if it be
better for certain individuals to govern, they should be made
only guardians and ministers of the law" (Arist. ib., III,
XVI)
(4c) "Liberty is a right of doing whatever the laws permit...
In societies directed by law, liberty can consist only in the
power of doing what we ought to will, and in not be
constrained to do what we ought not to will." (Montes., ib.,
i, XI, 3.)
5. Limitation of Government Functions
The preceding section suggests that a basic law or
constitution is necessary to restrictively delineate the
government's functions and duties, and non-restrictively the
citizens' rights (5a). The government must be restricted to
fulfill functions that exceed citizens' capability (5b).
Specific functions may vary with the geographic conditions
and the country's state of economic and technological
development. It is possible, therefore, that in undeveloped
and open countries paving roads and children instruction
should be implemented partially or totally by the government,
while in other countries they can and must be implemented by
private initiative. However, there are spheres which in
principle must never be subject to government intervention,
such as: religion, education (5c), press, science, and
anything concerning thinking, belief, and private life.
Control of education and press was always the main tool of
totalitarian regimes for instituting "collective thinking"
and molding the citizens according to their ideological
patterns. In liberal regimes, where the mere notion of
"collective thinking" is inconceivable, education must be the
exclusive concern of parents, and the government must stay
far away from the press, and the electronic media (5d).
Instruction and education must be clearly distinguished from
one another (5e). They are not only different, but
fundamentally contradict one another. Instruction aims to
provide young individuals with facts and technical knowledge
that enable them to make independent judgments and
participate in the production and enjoying of national
wealth. Therefore, instruction must be objective and unbiased
by nature. In contrast, education aims to mold young
individuals according to a given pattern, and therefore is
not and cannot be objective. As established in an earlier
section, the liberal principle of "Equality" establishes that
all individuals should have access to adequate instruction in
order to develop their potential capacity. Therefore,
although instruction should preferably be provided by private
initiative, government intervention is tolerable as a
complimentary action intended to guarantee every child their
deserved opportunity. As a rule, however, government should
completely abstain from participating in any educational
activity.
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(5a) The United Kingdom presents an exceptional case of a
liberal regimen which lacks a written constitution. The
British Liberalism began on the down of British history, in
the times of William the Conqueror (1027-87), or even before
it. It had a notable expression in the Magna Carta imposed by
English barons and churchmen to John of England in 1215,
which limited king's power and established the basic
subject's rights. Thereafter, in the middle of the 17th
century, the parliament rebellion against Charles I headed by
Oliver Cromwell reinforced the British liberty. And it was
one century before the American and French revolutions, when
in 1688 the "Glorious Revolution" replaced James II by the
royal couple Mary II and William III, who accepted the "Bill
of Rights", and agreed to rule in accordance with the law and
the consent of the parliament. It was its long history, and
the balanced forces of the monarchy, aristocracy, and commons
what allowed the development of a liberal regime based more
in tradition than in a written constitution.
(5b) "The people, in whom the supreme power resides, ought to
have the management of everything within their reach; that
which exceeds their abilities must be conducted by their
ministers." (Montes., ib., i, II, 2)
(5c) "..I think it is clear, that education must be ranked in
the latter class, or among those things in which the civil
magistrate has no right to interfere" "An Essay on the First
Principles of Government and of the nature of Political,
Civil, and Religious Liberty" (1771). Priestley Joseph
(1733-1804). British scientific, political philosopher,
priest, oxygen discoverer, and one of the founders of modern
Liberalism.
"It is in a republican government that the whole power of
education is required"..."but the surest way of instilling it
into children is for parents to set them an example."
(Montes., ib., i, II, 5)
(5d) In Israel, there are only three streams of education
permitted for Jewish children -- the state-secular, the
state-religious and the "independent". The first two are
governmental, while the third is controlled by certain
religious factions. In the 1950s, when an influx of Jewish
immigrants from Arab nations arrived to Israel, the
totalitarian regime headed by Ben Gurion saw them as
primitive- religious people who must be reeducated and molded
to the western-secular civilization. The education of these
children by teachers who despised their parents' culture, had
a destructive impact on the immigrant families.
The situation today is not much better. The police has
recently opened 76 criminal files against parents who dared
establish a private school for their children. ("Haaretz" May
11, 1997.) Radio and television are controlled by a
government monopoly, which has been somewhat moderated by
governmental concessions, under strong limiting conditions,
to monopolist cable-television companies. The newspapers,
which were dependent on an economy dominated until recently
by the government and the Histadrut (the central labor
union), express only the leftist point of view.
(5e) "But they confused education with instruction...You can
educate (cultivate) trees; but only rational beings can be
instructed." (Juan Bautista Alberdi, (1810-84) "Bases and
starting points for the political organization of the
Argentine Republic", Chap. 13 (1852).)
-------------
6. Separation of Powers.
In order to preserve civil liberties, separation and autonomy
of powers is even more important than whether the regime is
monarchic, aristocratic, or democratic (6a). This principle
already reached a high degree of development in the Greek
democracies, whose basic institutions have continued to serve
as a model for modern liberal constitutions. At least three
separate and independent bodies -- legislative, judiciary,
and executive -- must be in charge of enacting, interpreting,
and applying the law, respectively. In addition, in most
cases a fourth body, the constituent assembly, is in charge
of establishing and amending the constitution.
The constitution fulfills two fundamental aims: First it
establishes the respective structures, functions and limits
of the powers. Second, it enumerates the essential rights of
the subjects non-restrictively. Sanction or amendment of the
constitution by one of the three classic powers, gives that
power the right to determine and change its own functions and
limits, as well as those of the other two branches, and
enables it to dominate them. Furthermore, the criteria for
the election of members of a constituent assembly differ from
those for election of ordinary legislators, and their
election must be preceded by public discussion of the
proposed constitution or amendments.
In liberal regimes citizens and commercial or voluntary
organizations carry out many of the functions fulfilled by
the government in the totalitarian regimes. Hence, in
addition to the above mentioned government powers, there are
numerous civic powers which influence civil liberties no less
than the governmental ones. Civic powers include: employers,
industry, commerce, press, electronic media, clergy, trade
unions, political parties, instructional and educational
institutions, etc. These powers must also be independent,
limited, and separate in order to preserve civil liberties.
For instance: The employer-employee relations must be limited
to completion of the work for which the employee was
contracted. Any integration of political, religious, moral,
or other elements that are irrelevant to employer-employee
relations, will detract from the employee's liberties. Strict
separation of trade unions and political parties is also
essential for workers' political freedom. Separation of
industry and commerce favors free competition. Education and
instruction must be separated in order to ensure the
objective character of the latter, as well as avoid
presenting the parents with the choice of accepting desired
instruction together with undesired education or giving up
both.And so on.
Separation of powers is violated in regimes that accept
Lenin's principle of "party obedience" (6b). This principle,
which caused the Russian Workers Party to split into the
Bolshevik and Menshevik factions, establishes that party
members elected to fulfill government functions must act
according to the directives of the Party's Central
Committee. They would not act as representatives of the
people, loyal to their constituents, but as party delegates.
loyal to their party. Therefore, the Central Committee of a
major party would assume absolute power, by controlling the
members of the theoretically separate powers, rendering
their apparent separations meaningless.
--------------
(6a) "In the republics of Italy, where this three powers are
united, there is less liberty than in our monarchies." ...
"When the legislative power and the executive powers are
united in the same person, or in the same body of
magistrates, there can be no liberty"... "Again, there is no
liberty, if the judiciary power be not separated from the
legislative and executive .... the life and the liberty of
the subjects would be exposed to arbitrary control; for the
judged would be then the legislator" (Montes., i, XI , 6)
(6b) "What Is to Be Done?" (1902) Vladimir Ilich Lenin
(1870-1924)
---------------
7. Legislature
Compliance with the law must be based more on habit and
conviction than on enforcement. A law must be, therefore,
more the result of good will, mutual understanding, and
compromise than a decision imposed by the majority. All
sectors of the society must participate in its elaboration,
and their specific needs must be taken into account, namely,
the legitimate rights and needs of the minorities must
prevail over the strict rule of the majority, which may be no
less oppressive than the tyranny of a monarch (7a).
Therefore, in order to allow for ample participation of all
sectors in formulation of the laws, the legislature must be
composed of numerous representatives.
Since every law entails limitation of individual liberty, the
number of laws must be minimized, and the absence of a law
that can be deferred is always preferable to sanctioning
unnecessary laws. Furthermore, a voluminous and/or frequently
changing body of laws exceeds the scope of knowledge of the
ordinary citizen and can lead to unwitting offenses, which
cannot be justifiably punished. Therefore, enacting new laws
or changing existing ones must be approved for more than one
independent instance (7b).
Liberal constitutions frequently provide that every law would
be considered by two independent houses of parliament and by
the executive branch before being promulgated. Once a law is
approved by the house that initiated the legislative process,
it must be passed to the other house, which can approve it,
or reject and return it to the initiating house for its
reconsideration. After the law has passed the bicameral
approbation, it must still be promulgated or vetoed by the
executive branch. In the latter case, the law is returned to
the legislature for reconsideration, which can overrule the
executive's veto by means of a special majority (7c). After
promulgated, the law can be annulled by the Supreme Court if
it is found to contradict a constitutional disposition. In
contrast with this four-steps process of consideration by
separate and independent government powers, the all-powerful,
monocameral Israeli parliament, is only apparently limited by
basic laws, which were recently established and can be
abolished or amended by the parliament itself.
In a heterogeneous society, the need for a bicameral
parliament conforms with another liberal principle --
preventing domination of differentiated minorities by the
majority. This is the case of the House of Lords in the
United Kingdom and the Senate in the United States of
America, as well as in many other federated nations, in which
the second or high house is intended to give extra weight to
minorities.
In the United Kingdom, the bicameral system originated with
splitting of the society into aristocracy and commons, which
characterized the society when the liberalization process
began. Acceptance of this splitting as an established fact
generated a gradual transition in which the House of Lords
lost prerogatives as social differences declined.
In many federated nations, the bicameral system was
established in order to compensate the less populated states
for the potential threat of being overpowered by larger ones
in a strict "one man on vote" system. Whereas every state
sends a proportional number of representatives to the lower
house according to the size of its population, all states
have an equal number of members in the senate regardless of
population size. For instance, in the senate elections, every
Arkansan has the same weight as nearly thirteen Californians.
Although this may seem to be a flagrant violation of
democratic principles, it conforms with three fundamentals of
liberal philosophy: First, a man is not a simple number or
undifferentiated item. Therefore, the issue must be
considered in its complexity, which includes membership in a
social, national, or religious group. Second, the rule of the
majority is not necessarily less oppressive than that of a
single dictator (7d). Third, the law must be adapted to
reality and not to purport to be capable of creating a new
reality. Therefore, it can not ignore the heterogeneous
structure of the society which it is intended to rule (See
note (1b) in Section I of this chapter.)
In the Euro-continental parliamentary democracy of Israel,
which follows a one-man-one-vote system and lacks a
constitution, the situation of minorities is paradoxical. On
the one hand, non-Jewish minorities are severely
discriminated against by the Jewish majority; on the other
hand, the Arab minority has a decisive influence on matters
concerning the security of the Jewish majority, which is in
state of conflict with surrounding Arab nations. The highly
diverse nature of Israeli society will necessarily lead to
the replacement of its actual quantitative democracy with a
more liberal system that assures the genuine rights and needs
of all its sectors (See "Democracy in a Heterogeneous
Society" in )
Measures must be adopted to guarantee rights of minorities,
together with sectoral abstention from participating in
decisions that may lead to conflict of interests. This
apparent violation of democratic norms is perhaps the secret
of the most stable liberal regimes, such as British and
American (7e).
In a liberal regime, the specific function of the parliament
is to discuss and sanction laws, whereas in parliamentary
democracies the parliament also appoints the executive
branch. In the Euro-continental
parliamentary regimes, the tight control by the legislature makes
the executive branch more an arm of the legislature than a
separate and independent power. The principle of separation
of powers, which constitutes the cornerstone of liberty in
liberal philosophy, is thus violated (7f). In practice, it
has disastrous consequences, especially when combined with
coalition regimes, served as democratic gateway for the
ascension of Marxism, Nazism and Fascism. Furthermore, the
continuous involvement of the parliament in non-legislative
affairs, exacerbates antagonism between representatives
contrary to the spirit of thoughtful serenity and dialogue
needed for the legislative function.
----------------
(7a) "Now they agree in saying that whatever is decided by
the majority of the citizens is to be deemed law. Granted:
but not without some reserve" (Arist. Politics VI, III)
(7b) "For the habit of lightly changing the laws is an evil,
and, when the advantage is small, some errors both of
lawgivers and rulers had better be left; the citizen will not
gain so much by making the change as he will lose by the
habit of disobedience. The analogy of the arts is false; a
change in a law is a very different thing from a change in an
art. For the law has no power to command obedience except
that of habit, which can only be given by time, so that a
readiness to change from old to new laws enfeebles the power
of the law." (Arist. Politics II, VIII)
(7c) "The legislative body being composed of two parts, they
check one another by the mutual privilege of rejecting."...
"The executive power,..., ought to have a share in the
legislature by the power of rejecting" (Montes., ib., i, XI,
6)
(7d) "The decrees of the demos correspond to the edicts of
the tyrant;" (Arist. ib., IV, IV)
(7e) "For many practices which appear to be democratical are
the ruin of democracies" ... "Therefore the legislator and
the statesman ought to know what democratic measures save and
what destroy a democracy" (Arist. Politics V, IX)
(7f) "But it is not proper , on the other hand, that the
legislative power should have a right to stay the executive.
" (Montes. ib., i, XI, 6)
"Two powers that generate one the other in this manner cannot
be too independent". (Alberdi ib., Chap. 9)
----------------
8. Executive Branch
The executive branch is entrusted with carrying out the
specific functions needed to implement the law. In contrast
to the legislature it is not a forum for philosophical
discussions, in which all streams of thought must be
represent, but the responsible for practical and sometimes
urgent decisions, which must be taken under rapidly changing
circumstances. In a collective body the sense of
responsibility declines with the increase in membership,
since nobody feels personally responsible for collective
decisions. This is the cause for acts of violence and cruelty
perpetrated by groups, which would never be committed by
individual members alone. This is true at all the levels,
from gangs of adolescents to ministerial cabinets. Therefore,
the executive is best administered by one man assisted by
expert advisers (8a).
The separation and independence of the legislative and
executive powers requires separate election, and that no
member of the executive would serve as a member of parliament
(8b). These basic requisites are clearly violated in
coalitional parliamentary regimes: Ministers share collective
responsibility for decisions, and are members of both powers.
Moreover, they are selected on the basis of electoral
ascendancy rather than on their ability and knowledge.
----------------
(8a) "The executive power ought to be in the hands of a
monarch [one ruler], because this branch of government ,
having need of despatch, is better administered by one than
by many." (Montes. ib., i, XI, 6)
"Neither ought the representative body to be chosen for the
executive part of government, for which it is not so fit, but
for the enacting of laws .." (Montes. ib., i, XI, 6)
(8b) "But if there were not monarch [one ruler], and the
executive power should be committed to a certain number of
persons selected from the legislative body, there would be an
end of liberty; by reason the two powers would be united, as
the same persons would sometimes possess, and would be always
able to possess, a share in both." (Montes. ib., i, XI, 6)
----------------
9. Judiciary
The laws enacted by the legislature are implemented by the
executive and interpreted by the judiciary. The latter,
therefore, has the power to decide when the law has been
violated by citizens as well as by rulers. As are all subject
to the law, they are in effect subordinate to judicial power,
which has in its hands citizens' liberty, lives, and
property, and the last word with respect to the legality of
every decision made by the legislature legislature or the
executive branch. Such far-reaching prerogatives must be
balanced by the most severe limitations:
a) Judges can only act when they are asked to interpret the
law with respect to a particular situation, and not by their
own initiative (9a).
b) They must interpret the law as it was intended by the
legislators and previous jurisprudence. Otherwise, citizens
cannot know what is allowed and what forbidden by the law,
and liable to commit unwitting offense. It is a principle of
justice that no one can be judged on any ground other than a
law existing at the time the allegedly illegal act was
committed. Since judgment always takes place after the fact
it is dealing with, every innovative interpretation of the
law is in flagrant violation of this fundamental citizen's
right (9b).
The tendency to achieve increasing power is part of human
nature, and judges are human beings. The claim that the
changes in social norms and customs require modified
interpretation of the law, is espoused by judges everywhere,
including the United States and Israel. However, in order for
the changes to be justly implemented, they must be sanctioned
before the judged deed was committed, i.e., at the time of
legislation, and not at the time of judgment. Furthermore,
there is no essential difference between changes in the
letter of the law, or in its interpretation. Therefore, if
changes in society require changes in the law, they must be
effected by the legislature elected to this purpose by the
people, and not by the judges.
c) Judges must refrain from allowing their personal
convictions and beliefs to influence their decisions.
Certainly, nobody is capable of totally preventing
subconscious factors from influencing his thoughts and
actions, and the above condition will never be fully
satisfied.
Nevertheless, judges can and must adopt norms of behavior
that promote objective practice and exclusion of his personal
inclinations. Like gynecologists who must behave with their
patients as if they totally lack sexual instinct, judges'
feelings and personal opinions must never appear in their
sentences.
d) To consolidate citizen's confidence in their impartiality,
they must abstain from political, religious, or other public
controversies.
In order to keep judges removed from political activity, they
are, in contrast to the other two branches, generally
nominated rather than being elected by the people.
Furthermore, in order to ensure their independence, judges
are nominated for life and they can only be removed from
office if they were found guilty of violating the law. These
two flagrant deviations from the democratic principles of
popular election and periodic replacement of rulers are
intended to safeguard citizen's liberty. Nonetheless, judges
must never participate in the nomination and promotion of
their own colleagues, which would be a form of
self-nomination that would constitute an unjustified
additional violation of democratic norms.
(9a) "The law ought to be supreme over all, and the
magistracies should judge of particulars, and only this
should be considered a constitution. (Arist. ib., IV, IV)
(9b) "But though the tribunals ought not to be fixed, the
judgments ought; and to such a degree as to be ever
conformable to the letter of the law. Were they to be the
private opinion of the judge, people would then live in
society, without exactly knowing the nature of their
obligations."
"But as we have already observed, the national judges are no
more than the mouth that pronounces the words of the law,
mere passive beings, incapable of moderating either its force
or rigor." (Montes. ib., i, XI, 6)
"And he shall not judge by the sight of his eyes. Nor decide
by the hearing of his hears. But with righteousness he shall
judge the poor.And decide with equity for the meek of the
earth." (Isaiah, XI, 3-4)
---------------
10. Their mutual control.
Government powers, though separate and independent, must
monitor each other in order to assure that they remain within
the limits of their respective functions and prerogatives
established by the law.
The legislative branch controls the executive and judicial
powers by enacting the laws that bind them, and by the
prerogative of impeachment, which enables the executive head
and the Supreme Court judges to be deposed if they violate
the law (Ca).
The executive branch controls the legislature by the right to
veto the laws and return them for its reconsideration. This
executive's right to rejecting legislation can be overruled
by a special majority in the legislature.(Cb)
The Supreme Court can totally or partially abolish a law if
it conflicts with constitutional prescriptions. Moreover, all
inhabitants are entitled to appeal to the Supreme Court if
they feel they have been unjustly affected by a measure of
the executive.
------------------
(Ca) "They are both [legislative houses] restrained by the
executive power as the executive is by the legislative."
(Montes., ib., XI, 6)
"But if the legislative power in a free state has no right to
stay the executive, it has a right and ought to have the
means of examining in what manner its laws have been
executed;" (Montes. ib., i, XI, 6)
(Cb)"Every Bill which shall have passed the House of
Representatives and the Senate, shall, before it become a
Law, be presented to the President of the United States; If
he approve he shall sign it, but if not he shall return it,
with his Objections to that House in which it shall have
originated, who shall enter the Objections at large on their
Journal, and proceed to reconsider it. If after such
Reconsideration two thirds of that House shall agree to pass
the Bill, it shall be sent, together with the Objections, to
the other House, by which it shall likewise be reconsidered,
and if approved by two thirds of that House, it shall become
a Law" (Constitution of the United States of America Article
I Section 7)