Courtesy Reuters

Government by Law

THE one great issue that overshadows all others in the distracted world today is the issue between constitutionalism and arbitrary government. The most fundamental difference is not between monarchy and democracy, nor even between capitalism and socialism or communism, tremendous as these differences are. For even in any socialistic or communistic régime, as now in every bourgeois democracy, there will be rights to be preserved and protected. Deeper than the problem whether we shall have a capitalistic system or some other enshrined in our law lies the question whether we shall be ruled by law at all, or only by arbitrary will.

The prevailing system of private ownership is so old and has in the course of centuries become so entwined in most existing systems of positive law that it is a natural mistake to identify private property with law itself, and opposition to it with lawlessness. The agitator for a communist revolution, like the capitalist, is in danger of forgetting that law does something more than merely protect vested rights of property: in capitalistic states it is law alone that leaves the agitator free to preach capital's overthrow. If, then, we give an economic definition to conservatism and to radicalism, as is commonly done, it is not legitimate to identify constitutionalism with either. Under an arbitrary government, the radical agitator is as likely to find himself in a concentration camp as the capitalist, and under those arbitrary governments which are now fascist it is he oftener than anyone else who feels the brunt of government by arbitrary will.

The problem of constitutionalism, then, is everybody's problem, whatever economic or social system he may prefer. It is law alone that gives protection to rights of any kind in any individual, personal as well as proprietary, whatever form the state may take and whatever the nature of social control. In this world struggle between arbitrary will and settled law, it is true that liberalism and democracy are deeply involved. The triumph

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