The Supreme Law

posted originally on AlterNet

Among the crucial issues raised by the prosecution of Bradley Manning and the persecution of Edward Snowden is the question concerning what law should serve. Is law's basic purpose order or justice - the maintenance of the way things are, or the instantiation of what ought to be? What is primary, the letter or the spirit of the law?

Over the course of history, the spirit of the law has generally been regarded as law's more important dimension. Indeed, without serving a higher spirit or ideal - such as justice, fairness, or the common good - the mere letter of the law tends to be conceived of as nothing more than brute force. It is just this notion that provides the rationale for acts of civil disobedience; as Martin Luther King put it, citing Saint Augustine, an unjust law is no law at all. Consequently it has no authority, moral or otherwise. And while it may sound counter-intuitive, it is no exaggeration to remark that what is known as the Right of Resistance has to some degree been a feature of law since biblical times - for even the bible allows for the breaking of the sabbath, and other laws, if a person's health, or welfare, is in jeopardy. Axiomatic of justice, this notion of the spirit of the law prevailing over its mere letter underpins the US Constitution itself; for in its preamble the Constitution clearly states that its purpose is, among other things, to "establish justice," and "to promote the General Welfare." That is, implicit in the Constitution is the idea that law, the order of things, must yield to the demands of justice - and that the law that does not prioritize the general welfare, that is not animated by the spirit of the law, is no true law at all.

What is of especial relevance in interpreting the meaning of the General Welfare is the ancient legal maxim salus populi suprema lex esto. Ingrained in US Constitutional law, the maxim is attributed to the Roman philosopher and statesman Cicero (106-43 BC). Once a feature of Roman law, the maxim spread throughout the Roman Empire. And by the time the empire dissolved, centuries later, the maxim had become embedded in legal systems across the former Roman world. Indeed, within early English common law the maxim carried the force of law itself. Usually translated as the health of the people is the supreme law, in his Table Talk, the 17th century English jurist John Selden (referred to by John Milton as "the chief of learned men reputed in this land") pointed out that since the term esto is in the imperative mode, its proper translation ought to be 'the health of the people should be the supreme law.' In other words, the maxim is not a statement about how things are, but a command as to how things ought to be. And that is how the maxim has functioned. It has been used to nullify laws that conflict with this higher principle. When faced with the question of how things should be, of what the supreme law should be, the maxim holds that the deciding factor is the health (or welfare) of the people. Cited in dozens of US state, federal, and Supreme Court decisions, this maxim continues to exert persuasive power in US law. However, because the maxim suffers from the same ambiguity that law itself suffers from, over the centuries the maxim has been construed to mean either order or justice – the welfare of the people, or the welfare of the rulers.

For example, while Machiavelli (in his Discourses on Livy) interpreted the maxim in a manner that emphasized order, during the 17th century - while common lands were being converted into salable things, enclosed, and sold off, rendering the people that had historically lived on those lands into homeless refugees - the so-called Levellers cited the maxim to justify their efforts to fight off these enclosures. The health of the people should be the supreme law, they argued. And because the health of the people requires land on which to live, its alienation is contrary to the supreme law and must therefore be halted. Reacting to the Levellers, among other things, Thomas Hobbes invoked the maxim in his Leviathan, emphasizing the order of Absolutism. A generation after Hobbes, John Locke famously employed the maxim as the epitaph to his Second Treatise on Government. Referring to the maxim, Locke wrote that it "is certainly so just and fundamental a rule, that he, who sincerely follows it, cannot dangerously err." By way of Locke, the maxim influenced the Founders of the US who, like Locke, emphasized the emancipatory dimension of the maxim in their efforts to free themselves from the domination of the British Crown.

While the maxim has been instrumental in justifying the shift from Monarchy to Democracy, it is not limited to such a use. Incorporated into US law, the maxim has been cited as an authority from before the ratification of the US Constitution to the present day - though with varying interpretations. After the Revolutionary War, for instance, while former soldiers were besieged by war debts - leading to Shays' Rebellion, among other uprisings - in South Carolina southern debtors argued that their war debts should be expunged altogether. The health of the people should be the supreme law, they argued. And because such debts were sapping the peoples' strength, thereby harming their health, these debts should be against the law. The South Carolina courts agreed with this argument, and debtors' debts were forgiven. While the above example is problematic, not least because of the proliferation of brutal slavery (which apparently did not violate the Health of the People), it is nevertheless an important event in the history of the maxim - a precedent that contemporary debtors could invoke today to nullify consumer, student loan, and other debts.

After the ratification of the US Constitution, and throughout the 19th century, courts across the United States employed the maxim to justify the power of municipalities to pursue ambitious public health programs. Not only were the people empowered to build things - such as sanitation systems - the maxim empowered people to tear things down as well. If, for example, a slaughterhouse, or tannery, or any other noxious activity were found to impair the public health, polluting waterways and other things, the courts found again and again that the people had the power and authority to eliminate the offensive operation.

Although the maxim would be invoked by courts during the early 20th century, and even by FDR, with the rise of the power of the industrial business classes the courts employed the maxim less and less frequently. And when the courts did employ it, they began to emphasize its dominating aspect. To be sure, this (mis)interpretation has held for much of the 20th century and into the 21st. Recently, for example, the maxim has been cited by John Yoo, among others, to support the power of the state to perpetrate torture. Torture, which is directly contrary to the health of people and justice, does support order and the "health," or strength, of the state. And, because the notion of the general welfare suffers from the same ambiguity that law itself suffers from, John Yoo would very likely argue that torture is itself necessary to achieve the general welfare. What, however, does the general welfare really require? What do people require to fare well?

Because threats to our physical, ecological, and psychological health are threats to our general welfare (consider, for example, the adverse effects that global warming, pollution, and war, not to mention poverty, unemployment, an overblown prison system, and our crumbling infrastructure have on our collective health), the general welfare requires that we re-interpret the maxim that the health of the people should be the supreme law and employ it to direct our collective resources into creating a genuinely healthy world. To be sure, in many respects, the creation of the actual conditions of health is no different from the implementation of concrete conditions of justice. And, though aspects of this may run counter to the letter of the law, this is precisely what the spirit of the law demands.

According to a critical reading of the maxim, if the health of the people should be the supreme law, then that which is contrary to the health of the people ought to be against the law too. As such, not only would social, economic, and other conditions that cause occupational, industrial, and other diseases be against the law, those institutions and practices that create - or recreate - obstacles to the conditions of health (not just obvious practices, like fracking, but deeply exploitative institutions, like rent) should be against the law as well. Moreover, if unhealthy conditions such as air pollution, malnutrition, poverty, war, etc., are illegal - against the supreme law - then this implies that there is a duty to correct unhealthy conditions; for if the mere existence of such unhealthy conditions is against the law, a society would be under a duty to get rid of such conditions of disease in order to comply with the supreme law. This interpretation of the maxim leads to the conclusion that where they are absent society has an obligation to create actual conditions of health - an interpretation of the maxim that gives rise to positive rights to housing, nutrition, education, recreation, rest, and other conditions of physical, psychological, and ecological health. One should not, however, infer that such an interpretation would allow for intrusions on people's autonomy. Because autonomy is a constitutive aspect of a critical notion of health, people must be free to partake in activities that could be seen as harmful to their personal health - such as using recreational drugs - so long as such personal activities are consensual and do not interfere with the health of the people in general.

Some will no doubt argue that, though conditions of health may not exist, a market economy provides the most efficient means of achieving these conditions of health. Among its other deficiencies, however, this argument overlooks the fact that a fundamental conflict of interest arises whenever a condition of health - such as health care, nutrition, housing, etc. - is subordinated to market forces. Because production and service delivery in a market economy is under a compulsion to derive a profit (it is, after all, a business) a conflict of interest of necessity arises between securing profits and securing "health-value." Because profit is primary in such a system, it is the decisive, determining factor and as such prevails in conflicts of interest, exposing people to conditions of disease (sleep deprivation, toxins, etc.) contrary to the supreme law. Properly creating the conditions of health (which, according to the maxim, a society has a duty to provide) therefore requires that these conditions be free from the pressures of the market. As such, conditions of health (nutritious food, housing, health care, etc.) must be produced and distributed in a democratic manner outside of market relations altogether.

This issue of profit, health, and value brings us back to the question concerning the purpose of the law. What, in the end, is the law (and the economy) for in the first place? Is it to merely reproduce what is? Or is it, rather, to produce what should be? And what should be? Should "the health of the people" be subordinated to the economy (as it presently is, resulting in epidemics of cancer, not to mention ecocide, among other harms)? or should the economy, and other institutions, be subordinated to the "health of the people"? As already noted, the maxim maintains that "the health of the people" should be the deciding factor, the ultimate value, the supreme law. That the word value itself is derived from the Latin term valetudo, which means health, only further attests to the deep complementarity of these two notions.

As we hurtle toward ecological calamities of ever greater magnitudes - among other harms to our collective health - it is crucial to recognize that a critical interpretation and application of the maxim that the health of the people should be the supreme law would not only allow us to prioritize our collective health and mitigate these actual - and intensifying - harms, it would also, in many respects, allow for the concrete realization of conditions of actual justice (housing, nutritious food, health care, the elimination of war and poverty, the creation of a healthy environment, the securing of civil liberties, etc.) throughout the world. While many will no doubt resist such a radical transformation of the status quo, the reasonable person will recognize that one must have priorities. And who can reasonably maintain that our collective health - broadly defined - should not take precedence over the narrowly construed notions of wealth and order presently ravaging the planet?

When one considers the fact that the US Constitution's stated purpose is to further "the general welfare," and that "the general welfare" is entirely congruent with a critical, comprehensive, supranational health (not a superficial, instrumental notion of health, but health as an end in itself), it is hard to reject the argument that the instantiation of such a radical, critical health would be nothing less than the realization of the spirit of the law - the notion that provides the basis for the legitimacy of law in the first place.