Rule of Law or Rule of Lawyers?

Previously published as the LTN Column by John Kane in the September 18, 2013 Two Row Times 

We often hear from the righteous voices of the U.S. and Canada when looking at countries and peoples they view as inferior, that “rule of law” must prevail in these “developing” nations. “Developing”…? Excuse me! Forget the fact the U.S. and Canada have no culture or even a language of their own and barely a history, for that matter, compared to other peoples of the world.

But what does “rule of law” even mean?

When the upstart British colonists became dissatisfied with their “mother country,” they set about trying to create something new and distinct from European monarchies — new to them anyway. There is much talk of democracy these days but male dominant aristocracies is a habit hard to break especially when it is all you've known for several centuries. In the view of the “founding fathers,” democracy would empower the ignorant and the uninformed. They believed everyone should have rights. However, there was an important caveat: that “power” needed to be in the hands of the “capable.”

The U.S. did not form a democracy. It was a republic. The distinction between the two comes down to two concepts. The first is where sovereignty is vested. In a republic sovereignty is a birthright. It is vested in the individual; and the sovereignty of a nation comes from the people collectively. In a democracy it is the state that is the sovereign although it is an authority held by the collective of the people. The second thing that separates a democracy from a republic is the notion that the foundation of law or a constitution for a republic is natural law. That is to say that certain rights are inherent and unalienable. In a true democracy all laws are subject to majority (mob) rule. Both these ideas incorporated in the concept of a republic came from the Haudenosaunee. Sovereignty as a birthright, the understanding that creation is the ultimate power, and that any and all constructs of man are bound to that power, is the essence of our opening address, the Ohentonkariwatehkwa.

So when the words, “rule of law” are uttered, I say: hell yeah, agreed, no problem — as long as we are talking laws of nature and not the laws of men imposed on others without consent.

Seemingly, the entire world has forgotten the distinction of natural law from man’s law. Laws do not solve conflict. Even nature’s laws don’t do this — ask the next dinosaur you see how that worked out for them. Law, by court or certainly by lawyers, cannot resolve conflict. No one has ever successfully challenged nature in court. They have used courts to defy it but nature, like us, does not recognize that jurisdiction. Man’s law, on the other hand, is supposed to be based on the establishment of legitimate authority at the foundation of every piece of legislation and should lay out everything from jurisdiction to the legislative intent to constitutionality and basic rightness. It fails on much of this.

Now the biggest problem with this concept of “rule of (man’s) law” is that, unlike nature, we abandon diplomacy and negotiation and basic harmony for court rulings — i.e. winners and losers. And again, unlike in nature, there are flaws in much of the foundation of man’s law.

As I sit here today striking these computer keys and pondering all of this, I insist that there still does not exist any proper legal foundation for the subjugation of Native people to U.S. or Canadian law. And I would imagine the same could be said for many other peoples oppressed by colonial powers. The reality is there was no transfer of our sovereignty, no surrender agreement, no “treaty” asking to join the “club,” no referendum, and certainly no consent to genocide or assimilation. The U.S. and Canada cannot legislate our sovereignty away and their courts and judges cannot just rule it away. By definition the sovereignty of one people is outside the jurisdiction of another.

While I do believe the United Nations should do more than approve a “Declaration on the Rights of Indigenous Peoples,” I don’t believe the U.N. should be the final arbitrator of any justice. No individual or no organization should have this role — or this right.

We must return to an era of diplomacy and statesmanship. A civilized society needs to have honest and meaningful dialogue to resolve conflicts. It should not be based on might makes right but, rather, on right makes right. Statesmanship and compromise need to be held higher than court precedents and religious dogma. Lawyers and lobbyists playing word games with man-made laws to screw the less fortunate, the environment and future generations need to be thrown off the table and conflicts need to be looked at as things to resolve — not as contests to win.

http://tworowtimes.com/opinions/columns/lets-talk-native/rule-law-rule-lawyers/