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When it comes to the question as to what extent authorities in a state should be bound by the laws of the state (which they often make themselves), there seem to be two main viewpoints, one of them being the extreme opposite of the other:

The first viewpoint is that authorities stand "above the law". This idea seems to be what underlies the "immunity paragraphs" still found in many legal codes which grant heads of state (sometimes also members of parliament and other high-ranking officials) legal immunity from prosecution, effectively exempting them from the legal system applying to everyone else.

The second viewpoint is that nobody stands above the law, least of all those who make it. This viewpoint is often taken when discussing shortcomings of politicians in modern society, which usually wants to see such misdeeds punished far more harshly that it would for ordinary people.

Clearly, the first viewpoint is the older one. How has the second one evolved, and how old is it? Which ethicists are the main defenders of the two?

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    I think a classical formulation is that for authorities, everything not (explicitly) permitted is forbidden; whereas the opposite is the case for citizens (everything not explicitly forbidden by law is permitted.) – Joseph Weissman Feb 27 '14 at 16:38
  • @JosephWeissman not (explicitly) permitted by whom? Citizens, state...? – Lucas Mar 30 '14 at 14:22
  • @Lucas according to Wikipedia this is a constitutional principle of British law; so presumably "permitted" is to be read in the context of the juridical apparatus – Joseph Weissman Mar 30 '14 at 22:20
  • @JosephWeissman Thanks. It's a very elegant principle - but perhaps I think just that because I've grown up with it in the background. – Lucas Mar 30 '14 at 22:38
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I'm new to the site and don't exactly understand how strict is your classification of "ethicists", so I'll name the philosophers I know.

The first viewpoint is definetely older and extends from divine right to authors such as Carl Schmitt. Schmitt said that the POWER is in the hands of he who DECIDES about the state of exception. The sovereign is the one who decides when the law system begins, ends and of what it is constituted. If he can suspend the efficacy of norms, he is outside of their power, above them.

Hanks Kelsen, who spent a great part of his life arguing against Schimmit, believed that the legal system derived from the Grundnorm, or basic norm. Those who create a state's Constitution, based on the common perspectives of the people it affects, are but representing their will. After it's completion, the Constitution is above all. If that text grows old, it can either be changed, reinterpreted, or put aside for the making of a new one.

What I think is most important is not choosing sides, but understanding that, no matter what, Law is violence, as Walter Benjamin noticed, and is always the imposition of the will of some over the majority.

I don't think I've answered your question and I know I have serious english issues, but I recommend the reading of Kelsen's "Pure Theory of Law", Schmitt's "Political Theology" and Benjamin's essay "Critique of Violence".

  • Welcome to Philosophy.SE! Good answer. There are viewpoints of Law that disagree with what Walter Benjamin says, see for example Hayek and how he distinguishes between Law and Legislation. You may be right, but I think the statement needs more backing. – James Kingsbery Jul 22 '14 at 18:55
  • Thanks a lot, James, for the cumpliment and the reference. I'll surely look into it. I'm only starting my studies on the state of exception theory (Schmitt, Agamben, Hardt & Negri) and still lack the aptitude with the english language to discuss such matters deeply. My readings have been limited to Law philosophers and political scientists so far. Maybe you guys could recommend me some ethicists (not that I want to start labelling things), who deal with this subject. – Vitor Bernardes Jul 22 '14 at 19:34
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In antiquity, there was already a tradition similar to the "nobody stands above the law, least of all those who make it" approach. It was however more of an approach of giving leaders a very short leash and calling them to account.

In Greece, there was a tradition of euthyna. Generals (strategoi) were given latitude in how affairs were conducted, but at the end of the term were called to account for what they did and potentially penalized. A similar practice happened with Roman consuls.

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Ideally, of course, the law should apply to everybody equally. However, I have not heard of any society where this was implemented in practice rather than in the law. Even in the societies where the laws tend to formally apply to everybody, such as in the modern USA, authorities routinely break the law in the manner that would land private citizens in prison, and yet they are seldom punished.

What makes matters worse in practice is that in traditionally repressive societies people assume the worst and act to protect themselves from authorities, but in formally open societies where unequal application of laws in contrary to proclaimed equality people assume benevolent authorities and get badly burned by the reality.

I guess my answer is that the presented viewpoint on the relations between the citizens and the authorities should reflect not only the ideals (that to my limited knowledge have never been attained) but also the current state of affairs.

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Immunity (Impunity?) paragraphs are themselves law. Therefore, when they apply to somebody, that doesn't constitute "being above the law" for that person.

Immunity paragraphs are the logical byproduct of the idea itself, the idea that we must govern our lives by a system of laws. The laws in the "modern world" stem from the social contract, the idea that individuals give up the right for personal violence to a state which in turn pledges to treat them fairly, so that they actually don't need personal violence because they should, in fact, have a fair life.

Since there is no such thing as "state" with any material power and thus capability to do what it's supposed to according to the contract, it has to subcontract that part to actual people (government, judges, police, civil servants etc.). The problem starts when you have an actual person acting in some way. If it's a "normal" person, not holding some official position, then it's clear, the person acted themselves, for and by themselves. If it's a person with an office, then the question arises whether the person acted as an official or as the normal person he/she also still is. For the "official" role, different laws apply than for the "private person" role. Examples are many - soldiers that may/should/must kill, police taking somebody in custody or even shooting etc. . Did the soldier kill as a soldier and earn the proverbial medal or as a private person and earn a jail sentence?

This is where Immunity sets in - since officials are likely to be watched more closely than random individuals and potentially met with envy, the immunity seems like a logical way to protect the system from a flood of suits/allegations and make it even possible for a person to step up to an official job. If a soldier had an investigation and lawsuit coming for every single killed enemy, war wouldn't make any sense. (Wait a minute...)

Holding officials to even higher standards (implied by call for harsher punishment in your question) would either require specific laws to be lawful or would itself be outside/above the law. The question arises why an individual should be held to higher standards because he/she held an office in the first place. To serve as idol or "good example"? So they can't be blackmailed? Because that's the only way we can "trust them"?

As official, specific laws apply anyway - no point in comparing higher standards to "normal people" therefore. As private person happening to hold an office, the standards are the same than for normal people, because there are no other. Like not stealing.

What could meaningful "higher standards" be? Not to cheat, for example. As an official, it seems counter-intuitive that cheating is even possible. An official position is more like an automatism, cheating is not really an option. So, a person with an official position can only cheat as a person. Now - is cheating illegal for people? Not according to "modern society". Only specific "immoral" acts are outlawed and even there prosecution is very difficult.

Due to the apparent paradox of this dichotomy (authorities to be above the law via impunity or not above the law as normal citizens) causing unresolvable problems thus rendering the social contract impossible, Hobbes chose the Leviathan - an absolute sovereign to cut through the chase. Leviathan was of course above the law.

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