Government can do anything – if they dare
The first thing to consider is the power of governments.
Governments can pass any law they can get enough votes for. (I don’t except governments under the control of single dictator. It’s just that only one vote is needed in such cases.)
Governments can pass any law, but they won’t if they don’t believe they will have the backing of their supporters, and they’re unlikely to do so if they don’t believe that their supporters are more powerful than their detractors.
This applies whatever the culture, whatever the social structure, and whatever the political system. In a electoral democracy, governments need to be aware of the ballot box, but even a despot has to be keep his or her power base on side. Many a military dictator has fallen because the military changed sides, and countless monarchic dynasties have ended in palace revolutions.
So one check on the power of government is the power of public opinion.
In our own type of political system we have both Government and Opposition – one provides governing oversight of the country, and the other acts as a check on Government by telling it how its oversight is wrong, evil, and idiotic. Together, these two sides make up the working group we call Parliament.
In constitutional monarchies, we have three balancing powers: Parliament, the Courts, and the Monarch (through her appointed representative, in the case of the Commonwealth). Parliament makes the law; the Monarch/Governor General signs the law, and the Courts interpret the law. Parliament is not meant to make laws that ignore the constitution, the Monarch/Governor General is not meant to sign them, and the Courts are expected to crack down on them.
In the US, things are much the same, except that the President takes the place of the Governor General – and is also a political party member instead of a non-political titular head, so has a vested interest in seeing the law pass – but then the US also has an Upper House, so it probably works out.
In the US, they have a codified constitution. Ours is non-codified – enshrined in statute, treaties, case law, and unwritten conventions.
The Opposition, the Governor General, the Courts, and the constitution don’t stop the Government from passing utterly stupid laws, but they keep them from totally trashing the country, and the electoral system eventually brings in another Government that rescinds a few of the stupid laws and replaces them with some of its own.
That sounds more cynical than I really am. The checks and balances are there to ensure that those without power are protected, and those with power don’t get too carried away. On the whole, it works (more or less).
Governments exist to maintain order
Here’s a nice succint statement of the purpose of governments: “to provide a system in which individuals give a portion of their freedom in order to pursue needs and wants without the fears that are inherent in a state of anarchy”.
Again, this applies no matter the political system. All that changes is the nature and number of individuals whose needs and wants are being met. In a military dictatorship, it might well be just the military and their families. In the Roman republic (and later the empire), it was male Roman citizens, and particularly the male Roman aristocracy. In a Celtic Tuath, it was every free man, woman, and child, but not their slaves.
The point of an electoral democracy such as ours is that it serves (or should serve) all of the people all of the time. The role of Government, then, is to even the playing field; to give the weak what they need to stand up to the strong.
So what is the purpose of democracy? As Saeed al-Mutafiq says: “a world-class healthcare system, a world-class education system, a job for everyone willing and able, the rule of law, civil rights, and liberties”. But it is more. It is a feeling that your voice can be heard; that it is worth taking part in the political life of the country; that the economic system is fair; that there is a just balance between the needs of business and the individual; that the Government stands as a reliable umpire between competing interests; and that the checks and balances actually work. [from the website of Robert Hanrott and Martha Horsley]
This implies, and we believe, that when the needs of an individual or organisation need to be protected from the actions of another, the Government has the right and responsibility to legislate to intervene.
This brings us to:
Principle one: Governments should act to protect the weak from the strong.
Individuals and organisations can do anything – if they dare
Have you noticed that when people say: “You can’t do that,” it is generally because you are doing it? “You can’t do that,” is not what they mean, of course. They mean that doing whatever it may be is illegal, immoral, impolite, or all three.
Governments don’t stay in charge because people can’t disobey their rules. They stay in charge because the people who accept them are sufficiently powerful to make it possible for them to stop the people who disobey their rules.
So anyone can do anything they are physically capable of doing – but each action comes with consequences. We can (as in we are physically capable of setting out to) disobey laws – whether just or unjust. And the Courts (or the army, or the Boss’s heavy boys, or whatever other order keeping unit applies) can fine us, beat us, lock us up, or shoot us.
It is established in international law that we are responsible for our own actions. If we obey an unjust law, and in doing so bring harm to others, we may be held to bear some responsibility for that harm.
In electoral democracies, we have a number of forms of redress against an unjust law. We can protest through political, legal, and civil channels. We can (usually legally) refuse to participate in the activity (for example, if we think the abortion laws are unjust, we can refuse to undertake or receive an abortion). If all else fails, however, we have the right – and also the duty – to refuse to participate even if such refusal is not legal.
Principle 2: When governments are wrong, and democratic measures have failed, it is our duty to disobey.
Non-action is a duty. Active resistance may not be a duty, but it is always an option.
(Recent New Zealand examples that come to mind are cutting open a dome – found by the Courts to be legal – or exercising with guns in the Ureweras – on which the jury is still out as I write).
Do these two principles make sense? And do they have anything to offer to our HHS mandate discussion?