The Rule of Law (and lawyers) according to populist Machiavellian logic and Shakespearean prose

By Jose Mari BFU Tirol

It is said that societies create laws to keep chaos at bay; where there is no law, there is only whim and force (Robbins, Law: A Treasury of Art and Literature [1990]). This complements an integral theme – justice – in the political theology of St. Augustine: “Remove justice, and what are kingdoms but gangs of criminals on a large scale?  What are criminal gangs but petty kingdoms?”

Law and justice can only be achieved if we have a government under the Rule of Law; not one that rules by law thru populist rhetoric, the Big Lie, and the unconstitutional argument that law-abiding citizens have nothing to fear and nothing to hide.

“… Rights in a democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the majority is not and should never be the definition of the rule of law. If democracy has proved to be the best form of government, it is because it has respected the right of the minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to man’s progress from the cave to civilization. Let us not throw away that key just to pander to some people’s prejudice.” (Estrada v. Desierto [2001])

“Over time and by constant repetition, a lie may gain some semblance of truth if it is allowed to go uncontradicted. Such falsehood must be unmasked and exposed for what it really is, specially if it distorts the rule of law and beclouds the precepts of truth and justice that this Court stands for.” (GC Dalton Industries, Inc. v. Equitable PCI Bank [2010])

“To merit respect and obedience, a government must be just. Justice cannot exist where the good is not distinguished from the wicked. To be just, the government must be good. to be good it must stick to the principles of decency and fair play as they are understood by a common man’s sense, by universal conscience. Good ends do not justify foul means. No one should profit from crime. Principles are not to be sacrificed by any purpose. What is bad per se cannot be good because it is done to attain a good object. No wrong is atoned by good intention. These are some of the maxims through which the common sense of decency and fair play is manifested.” (Justice Perfecto’s Dissent in Moncada v. People’s Court [1948])

“… In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If the government becomes the law breaker, it breeds contempt for the law, it invites every man to become a law unto himself, it invites anarchy. To declare that in the administration of criminal law the end justifies the means …. would bring terrible retribution.” (Chief Justice Teehankee [quoting Brandeis], Concurring Opinion in Aberca v. Ver [1988])

Indeed, to sacrifice individual liberties because of a perceived good is disastrous to democracy (Genuino v. de Lima [2018]); considerations of expediency cannot justify a resort to procedural shortcuts (Orpiano v. Spouses Tomas [2013]). “… In simple terms, the Constitution does not allow the end to justify the means. Otherwise, in eradicating one societal disease, a deadlier and more sinister one is cultivated – the trampling of the people’s fundamental, inalienable rights…” (People v. Sapla [2020]).

While the ends and the means bring Machiavelli to mind, it would be very simplistic to conclude that this is all that he can offer.

“… But he also says – in a passage most scholars pass over – that ‘victories are never secure without some respect, especially for justice.’ For every cynical Machiavellian precept, I found two or three others that clashed with it.

…

So what can citizens can do to preserve their freedoms? For one thing, they can train themselves to see through the various ruses in the would-be tyrant’s handbook. Machiavelli’s The Prince describes most of them, in ways that mimic their disorienting ambiguity…

And you might wonder: can distraction tactics like these ever bring states lasting security? Machiavelli’s answer is, no, they can’t. True political success needs completely different methods: low-key diplomacy, long-range solutions to complicated problems….

Today, yet again, old and new democracies are fighting for their lives. Between his double-edged lines, Machiavelli makes it clear why law-governed popular government is always better than authoritarian rule: ‘A people who can do whatever it wants is unwise, but a prince who can do whatever he wants is crazy.’ His life and words inspire us to become sharper readers of political danger signs, and ruthless warriors for our freedoms.” (Benner – Have we got Machiavelli all wrong? [2017])

“Niccolò Machiavelli’s view of emergency powers, as one element in the whole scheme of limited government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this chasm in democratic political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra-constitutional measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if the practice is once established for good objects, they will in a little while be disregarded under that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for everything, having a remedy for every emergency and fixed rules for applying it.

Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into the constitution a regularized system of standby emergency powers to be invoked with suitable checks and controls in time of national danger. He attempted forthrightly to meet the problem of combining a capacious reserve of power and speed and vigor in its application in time of emergency, with effective constitutional restraints.” (David v. Macapagal-Arroyo [2006])

Wrongs are never corrected by committing other wrongs (Republic v. Sandiganbayan [1996]); there can be no justice if the means employed are unjust, because law and justice are not just about “the end”, but also about “the means” towards such end. The journey as well as the destination is the essence of fairness and due process: to encourage, even enforce “what should be” in a society and as well as in a government contented with “what is”.

Everyone’s active involvement in the propagation of law and justice becomes more crucial if some sectors of society appear to fail to understand the necessity of the Rule of Law, and the role of lawyers therein. Aside from invoking the meme-worthy Machiavelli, they also mindlessly quote Dick the Butcher in Shakespeare’s Henry VI, “The first thing we do, let’s kill all the lawyers”, but disregard its meaning and importance.

The essence of Dick the Butcher’s statement can only be understood and appreciated by determining its context and spirit. The statement … was spoken by a rebel, not a friend to liberty, emphasized US Supreme Court Justice John Paul Stevens in a footnote to his dissent in a 1985 case (Walters v. Nat’l Ass’n of Radiation Survivors) involving the value of lawyers to a court system and society, “… As a careful reading of that text will reveal, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.”

While lawyers are indispensable instruments of justice and peace who,  upon taking their professional oath, become guardians of truth and the Rule of Law (Heirs of Romero v. Reyes Jr. [2005]), they do not have a monopoly of the necessary qualifications, skills, and responsibility to protect and uphold the Rule of Law; it is everyone’s obligation to do so. Nevertheless, common sense dictates that one who has a problem should seek a trained and competent professional who can provide him with the assistance he needs and deserves. After all, a little learning is a dangerous thing and he who acts as his own lawyer has a fool for a client; while a non-lawyer has all the right to represent himself, one who goes to court after ostensibly coming to possess some superficial awareness of a few substantial legal principles and procedural rules, does so with all the valor of ignorance (In re Joaquin T. Borromeo [1995]).  

As the comic Jerry Seinfeld observed: “To me a lawyer is basically the person that knows the rules of the country. We’re all throwing the dice, playing the game, moving our pieces around the board, but if there’s a problem, the lawyer is the only person that has actually read the inside of the top of the box.”

This is not to say however, that all lawyers are cut from the same cloth. “Legal mercenaries and judicial saboteurs who peddle lies, distort principles of law and masquerade as crusading advocates demean not only the judicial system but also justice itself.” (GC Dalton Industries, Inc. v. Equitable PCI Bank [2010]). And so we must take to heart Robert Kennedy Jr.’s admonition:  “Lawyers have their duties as citizens, but they also have special duties as lawyers. Their obligations go far deeper than earning a living as specialists in corporation or tax law. They have a continuing responsibility to uphold the fundamental principles of justice from which the law cannot depart.”

Those of us who have “actually read the inside of the top of the box” must propagate the Rule of Law, even in these times of the Covid-19 pandemic, by educating our fellowmen about their rights and more importantly, their obligations to each other and to society. We cannot limit ourselves to our fellowmen who have limited access to the law, but must also reach out to those who do not understand or belittle it. We must capacitate them and empower them with the necessary common sense, discernment, and knowledge and wean them away from their blind faith on and unthinking trust in ungodly leaders and idols.