A Book which was Burned at the Stake is still setting the World on Fire

In the 1600s armies took to the field in a bloody series of Civil Wars as the Divine Right of Kings was pitched against the new theory of Parliamentary Sovereignty. The questions of sovereignty, prorogation and democracy are today fought out in courts and in the media.

The government lost its legal war in Scotland as the highest Scottish court issued an official summary of its decision declaring the prorogation order was “null and of no effect”, but Lord Carloway said the judges were deferring a final decision on an interdict until the UK supreme court, heard the case.

Lord Carloway delivered the judgement of the court setting it at odds with English Courts and paving the way for a show down in the Supreme Court. Few court battles have ever had such far-reaching constitutional and political consequences. He based his ruling in part on the constitutional position of Scotland which is grounded in that Presbyterian contract theory approach. “Scottish constitutional law involved the subordination of Government to the law. This could be traced back to Buchanan’s De jure regni apud Scotos (1567). The power of the sovereign was, by immemorial tradition, restricted by the laws and customs of the people. This was different from England. The two approaches were reflected in the reformations in each country and the approach to the appointment of the clergy. The kings of Scotland had no prerogative distinct from supremacy above the law (Rutherford: Rex Lex (1660) question XLIII).

Despite the two citation errors the use of Lex Rex as a basis for such a constitutional showdown underscores its continuing relevance today.

 

One might ask what Rutherford would make of our modern Parliamentary Democracy. Have we really achieved a perfectly balanced constitution? How do we compare with our American cousins? Have we simply swapped one form of tyranny for another and lost the essence of what our forefathers sought to achieve.

The entire BREXIT debacle has shown the fault lines and systemic failures of our democracy. While some may argue that the paralysis is proof of a finely tuned system of checks and balances others see it as evidence for the need of reform. The attempt to break the logjam of a Remain Parliament which was arguably out of step with the country was frustrated by the Courts. Even the use of judges to overturn the decisions of a democratically elected government must be questioned.

As monied, highly motivated minority interest groups are using the courts to further their agendas, could the judge be the next tyrant the people must oppose? Arguably the aim of Rutherford was to promote Godly Government, so the raft of changes brought forward by courts and parliament in terms of liberalising marriage and abortion would be the antithesis of what he hoped for.

However the recent Constitutional Crisis has turned our attention back to this great forgotten thinker, whose knowledge and ability to synergise faith, reason, history, politics and ideology into a coherent argument for change continues to inspire many of us.