Thursday, August 20, 2009

The Monarch as Supreme Judge

"There is a great difference between the 'form' and the 'content' -- or purpose -- of the State. The latter is its essential raison d'etre, its very soul. The former corresponds to the bodily form of a living being. The one can certainly not exist without the other; but in any sane hierarchy of values the soul occupies a higher place than the body.

"The essential purpose of the State, its 'content,' is rooted in natural law. The State is not an end in itself; it exists for the sake of its citizens. It is therefore not the source of all law (a claim that is still far too widely accepted), nor is it all-powerful. Its authority is circumscribed by the rights of its citizens. It is only free to act in those fields that are outside their free initiative. The State is therefore at all times the servant of natural law. Its task is to give practical effect to this law; nothing more.

"If the mission of the State is the practical realization of natural law, the form of government is a means by which the community attempts to achieve this aim. It is not an end in itself...

"There is one more point we must consider before we can answer the question of which form of government will best serve the community in the future. Generally speaking, democratic republics represent a regime dominated by the legislature, while authoritarian regimes are dominated by the executive. The judicial power has not had the primacy for a long time, as we have shown above. It found its earlier expression in the Christian monarchies. It is frequently forgotten that the true ruler has always been the guardian of law and justice. The most ancient monarchs -- the kings of the Bible -- came from the ranks of the judges. St. Louis of France regarded the administration of justice as his noblest task. The same principle can be seen in the many German "Palatinates," since the Count Palatine (Palatinus) was the guardian of law and justice delegated by the King- Emperor. The history of the great medieval monarchies shows that the legislative power of the king -- even of a king as powerful as Charles V -- was severely limited by local autonomies. The same is true of the ruler's executive function. He was not, in the first place, a law-giver or head of the executive; he was a judge. All other functions were subordinate, and were only exercised to the extent necessary to make his judicial function effective.

"The reason for this institutional arrangement is clear. The judge must interpret the meaning of law and justice, and to do this he must be independent. It is essential that he should not owe his position, his function, to any man. The highest judge, at least, must be in this position. This is only possible under a monarchy. For in a republic, even the highest guardian of the law derives his position from some other source, to which he is responsible and on which he remains dependent to some extent. This is not a satisfactory state of affairs. His most important task is not to pass judgment in actual legal disputes, but to stand guard over the purpose of the State and natural law. Above all, it is the task of the supreme judge to see that all legislation is in accordance with the State's fundamental principles, that is, with natural law. The monarch's right to veto legislation passed by parliament is a remnant of this ancient function...

"The hereditary character of the monarchial function finds... [i]ts deepest justification... in the fact that the hereditary ruler owes his position not to one or another social group, but to the will of God alone. That is the true meaning of the frequently misunderstood words, 'by the grace of God,' which always signify a duty and a task. It would be wrong for the ruler by the grace of God to regard himself as an exceptional being. On the contrary, the words, 'by the grace of God,' should remind him that he does not owe his position to his own merits, but must prove his fitness by ceaseless efforts in the cause of justice."

-Archduke Otto von Habsburg, The Social Order of Tomorrow (London: Oswald Wolff, 1958)

Justice and judgment are the habitation of Thy throne: mercy and truth shall go before Thy face.
Psalm 89:14