Russ begins his post by citing Instar Adood, an Iraqi citizen, who contrasted the situation in his country between Sadaam's regime and the rule of law established by the U.S. In Iraq, law really didn't exist under Sadaam, the operative principle in the dictatorship was Sadaam's arbitrary will.
Here Russ has set up the problematic that is common to all Enlightenment thinking: either rule by a person or rule by law. Either dictatorship or democracy. But I do not accept these alternatives.
Russ writes, "The default political philosophy throughout much of human history has been that the will of the king is the law. The biblical view that the king should be subject to a higher law would have been seen as controversial if not insane."
As a Christian I could never object to the proposition that kings should be constrained by the dictates of God's Law. But let's be perfectly clear, the true import of this thinking is that there should be no king. The uncontroversial truism that human government is accountable to divine rule has been used as a pretext to overturn all human authority. The thought runs: authority is too dangerous to be entrusted to mere mortals, because "power corrupts", etc.
To verify my basic point, in the same article Russ also cites the illustrious biblical scholar Tommy Paine himself! Here is the full quotation:
But where, says some, is the King of America? I'll tell you. Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law OUGHT to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony, be demolished, and scattered among the people whose right it is.There is much that can be said in response to this rebel's rant, but I shall restrict my comments to address the possibility of rule by law alone. When we examine the substance of what Tommy Boy has actually said, we find there is nothing there. Rule by naked law does not, cannot, exist. The bottom line is that someone has to function as a final authority in human government since Jesus Christ has seen fit to reign from Heaven. In any situation, there are a number of laws that come to bear. In order to determine which law has priority in any particular case, judgment must be exercised, hence the need for judges.
As illustrated in the Schiavo debacle, judges are very powerful in this country. One county circuit judge can singlehandedly hold off the executive and legislative branches of his state, as well as the U.S. Congress acting in emergency session. Of course, backing this judge is the weight of the entire legal establishment.
Tommy Paine's ideal that law replace the king has been actualized in the real world as government run by lawyers, with all the attendant limitations of legalistic judgment, i.e., too much weight placed on the letter of the law, appeal to human law as ultimately authoritative, etc.
It may be reasonably asked then, are we not faced with choosing between either arbitrary judges or arbitrary kings? Isn't government a necessary evil, and shouldn't we opt for the system that disperses power among more rather than among few? Isn't decentralization preferable to concentration of power?
Not necessarily. A judge in our day is a lawyer and nothing else. But a king is more than a judge. He is also a father, and a father has more care for the well being of his own children than he does for someone else's. I would more readily trust my case to one who viewed me in some sense as a son than I would to someone who regarded me a stranger.