Online Primer

By Noah Nissani

Copyright 1996 -- Authorized free distribution of non-modified copies for non-commercial purposes.

Chapter IV

POLITICS -- Part I

Contents:

1. Introduction
2. Equality
3. Liberal Equality
4. Liberty
5. Restriction of Government Functions
6. Separation of Powers
7. Legislature
8. Executive
9. Judiciary
10. Their Mutual Control

Chapter I    Chapter II    Chapter III    Chapter V

1. Introduction

In his introduction to a radio-broadcasted course on Fascism, a known Israeli political writer and lecturer classified the 20th-century ideologies under two categories, which he referred to as "constructive" and "non-constructive", respectively. Under the "constructive" category, he included those ideologies, such as Marxism, Fascism, and Nazism, which are characterized by their commitment to building a new model of society, while in the second category he placed only Liberalism, which in his opinion lacks an innovative model of society.

Nothing could be further from the truth. Modern Liberalism emerged in the 18th century against the background of a society divided into classes -- noblesse, bourgeoisie, peasants, Jews, serfs and slaves, ruled by absolute monarchs, and characterized by religious intolerance. Its aim was to create a totally different society, based on the freedom and equality of all human beings, who would be responsible for themselves and their families, and share the collective responsibility for the public affairs and dictates of the brotherhood of men. A society ruled not by men but by law, and characterized by free thought and religious tolerance.

The error of the above-mentioned lecturer may be explained by the fact that, in contrast with the frustrated and disastrous totalitarian (1a) attempts to change society, the successful liberal revolution was achieved more by the abstention, than the active intervention of the authorities. It was the result of the liberal belief in society's capacity for self-transformation, together with the liberal resistance to any attempt to transform the society by decree (1b).

What is worth noting with regard to the above classification is the grouping together of the totalitarian ideologies -- Marxism, Fascism, and Nazism -- in contrast with the usual Marxist tendency of putting all anti-Marxist ideologies under the common label of the "right". From the Marxist point of view, Nazism, Fascism, and Liberalism were "reactionary ideologies", viz, opposed to Marxism (1c), and since Marxism was the "left", they were the "right".

Historically, the political denotation of the terms "right" and "left" originated in the French Revolution, when the liberal and moderate Girondins sat on the right side and the extremist Jacobins on the left of the National Assembly. The rightist Girondins were those who carried out the liberal revolution, abolished noblesse privileges, and established the equality under the law (1d), while it was the ascension to power of the leftist Jacobins that ended the "liberal period" of the French Revolution (1791-93), and launched the "Reign of Terror".

The modern totalitarian ideologies share with the leftist Jacobins all their essential characteristics, such as extremism (1e), Manicheism (1f), totalitarianism, as well as the fact that all them led to terror and tyranny. Furthermore, their central leaders, Mussolini and Hitler, were both originally Marxists, who nearly at the same time arrived at the conclusion that something was going wrong with Marxist-Leninist ideology (1g). Both built their respective new ideologies, Fascism and Nazism, by introducing changes to their common Marxist base. Hence, any logical classification of the 20th century ideologies, must put the totalitarian ones -- Marxism and its derivatives Fascism, and Nazism -- on the left, together with their Jacobins precursors, and Liberalism in the right as Girondins' legacy.

Benito Mussolini (Amilcare Andrea (1883-1945)) was before World War I an eminent Marxist ideologist, whose prominence earned him the nickname of "Duce", namely, leader or Fuhrer. He was expelled from the Italian Socialist Party in 1915 for supporting Italy participation in World War I. it was in this period that Mussolini switched his support from the Marxist axiom of "class' war" to "social harmony", i.e., from the elimination of the bourgeoisie to the legitimization of all society's sectors. The latter, according to his new ideology must organize into corporations or unions, fasci in Italian, which would represent them in the government. Shoemakers would be represented by shoemakers and engineers by engineers. This, in Mussolini opinion, would be a genuine democracy based on "the authentic representation of the people" (1h), and hence better than the distorted liberal democracy. In the latter, was sustained by the supporters of Corporativism, all the people's representatives belong to an elite of politicians of bourgeois origin. Social justice would be achieved in the corporative regime by negotiation between the representatives of employees and employers, under the supervision of the state (1i).

Nazism also evolved from Marxism by substituting for the universal war against the bourgeoisie the national war against the Jews. According to Hitler's new conception, not all the capitalists were responsible for the suffering of the German people, but only the foreign ones -- especially those who were strangers in every land, the landless, the Jews. It was in accordance with this switch from international to national Manicheism, that the German Worker's Party (parallel to the Russian Worker's Party of Lenin and other contemporary worker's parties through the world) changed its name in 1920 to the National-Socialist Party (Nazi). Hitler also transferred from the capitalists to the Jews the Marxist accusation of being the promoters of World War I and warned that they would be eliminated if and when they again inflicted a second world war on Germany.

Another common characteristic of Marxism and its derivatives, Fascism and Nazism, was their frequent changing of names and ideology. The Russian Social Democratic Workers' Party changed its name to the Communist Party in 1918, when switching from evolutionary to revolutionary ideology. Its Israeli counterpart, the Israeli Worker's Party (Mapai), changed its name to Labor Party (Avoda), when it replaced its Marxist ideology with a "syndical socialism" very close to Mussolini's Corporativism (1j). Today the Israeli Labor Party, like other former Marxist Parties through the world, supports a free-market economy and has wiped out its historic connection with the workers' unions. Currently, it is looking for a new name that would help to forget its Marxist past. The cause of this instability seems to rest in the fact that all these totalitarian ideologies are the fruit of one-man improvisation, be he Marx, Mussolini or Hitler, and therefore lacking the millenary roots and stability of Liberalism.

Furthermore, whereas all totalitarian ideologies see the citizen as a ward in need of protection and the government as responsible for his welfare, the liberal ideal of man is the independent and self-sufficient one -- the Robinson Crusoe or the far-west colonizer. Certainly, liberty has a price: risk, while the quest for security leads to submission (1k). Aristotle divides men into those who are free by nature, and those who are satisfied with the security of slavery (1l). It was the desire for security what guided the ancients of Israel when they asked Samuel a king, or the European peasants when they voluntarily submitted themselves to feudal lords. It was also the protective intervention of the Egyptian government, when saving the people from the risk of starvation during the seven years of famine foreseen by Joseph, that ended with the people being enslaved by Pharaoh (Genesis, 47:13). Universal experience has taught that those who prefer security over freedom, lose both of them. 
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Notes:

(1a) The term "totalitarian" refers only to the division of functions between government and citizens, stripped of all other usual connotations. The more functions assigned to the government, the more totalitarian the regime is.
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(1b) "Fatal is the illusion which legislators fall into when they pretend their talent and desire can change the nature of things or supplant nature by sanctioning and decreeing creations" (Bernardino Rivadavia, first president of Argentina, 1826 -- Quoted by Juan Bautista Alberdi in "The Bases and Starting Points for the Political Organization of the Argentine Republic" 1852). Notice that these prophetic words were uttered more of twenty years before the appearance of Karl Marx's "Communist Manifesto" (1848).
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(1c) Marx foresaw that the workers' "action" would provoke the bourgeoisie's "reaction", and coined the epithet "reactionary" for all opponents to Marxism. Thereafter, the term "reactionary" acquired, under persistent Marxist propaganda, the negative connotation of opposition to all social advance.
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(1d) Many Girondins were aristocrats, one of the more distinguished among them being the Marquis de Lafayette, commander of the revolutionary National Guard and hero of the American Revolution. The presence of aristocrats fighting for the suppression of noblesse privileges, as well as of bourgeois supporters of Marx's ideology, shows the fallacy of the Marxist picture of politics as class struggle.
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(1e) Extremism is closely related to haughtiness, i.e., the total self-assurance of being right. If what one is doing is beyond all shadow of a doubt for the benefit of humankind goodness, then "the end justifies the means". "Those who think that all virtue is to be found in their own party principles push matters to extremes" (Arist. Politics V, IX)
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(1f) Mani or Manicheo was the founder of a Persian sect with Zoroastrian and Christian elements in the 3th century, which spread throughout Asia and Europe and was characterized by the dualistic belief in the existence of two opposing principles, one good and the other evil. Used in a political sense Manicheism applies to ideologies focused on combating evil enemies. The French Revolution, for example, involved two clearly differentiated ideologies, represented by Girondins and Jacobins, respectively -- the former non-Manicheist, and the second strongly Manicheist. The two ideologies are faithfully represented by the free-of-hate liberal motto "Liberty, Equality, Fraternity", and by the blood-thirsty Marseilles' (1892) words "with impure blood we will irrigate our furrows", respectively. In the 20th century, Marxism, Nazism, and to a lesser degree Fascism, are characterized by their Manicheism -- in the first case against the bourgeoisie, and in the last two against the Jews.
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(1g) It may be that it was the murder of millions of citizens carried out by Lenin and Trotsky, while imposing the Marxist regime on the subjugated peoples of the Russian Empire, that motivated numerous Marxists to change their minds in these years.
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(1h) The principle of the "authentic representation of the people" was also present in Lenin's concept of democracy. It marked the difference between the Workers' Soviet and the Russian Parliament or Duma. In practice, the Marxist Workers'Soviet and the fascist Representation of the Corporations resulted a much more controllable body than the liberal parliaments composed of politicians. It was their easy submission that allowed the running of the Marxist and the fascist tyrannies under the guise of apparent democracy.
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(1i) When it witnesses the salary negotiations between representatives of workers, employers, and government, the Israeli people is not aware that it is attending a genuine fascist spectacle.
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(1j) I know that this will sound very strange for the Israeli reader and in total contradiction to all that he has been taught on Fascism. But he must remember that he has heard the Marxist version, while the only way to really know what an ideology is, is to hear the version proffered by its supporters. 
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(1k) "The secret of Happiness is Freedom, and the secret of Freedom is Courage" (Thucydides, Pericles' Funeral Oration). Woefully the courage needed to be free, is not part of the universal human inheritance.
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(1l) "For that which can foresee by the exercise of mind is by nature intended to be lord and master, and that which can with its body give effect to such foresight is a subject, and by nature a slave;" (Arist., ib., I, II)

Idea that the Bible accepts: "And if it happens that he [the slave] says to you, 'I will not go away from you', because he loves you and your house.." (Deuteronomy, 15:16).

And Charles Louis de Secondat Baron de Montesquieu (1689- 1755) rejects: "Aristotle endeavors to prove that there are natural slaves; but what he says is far from proving it." (The Spirit of the Laws i, XV, 7)
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2. Equality

Human equality and fraternity are fundamentals of the Bible as well as of the Greek classics. In Biblical mythology men were twice descendants of a common father, first Adam and Eve, and then Noah, father of all races. Love and equality under the law for citizens and strangers, is one of the more times repeated Biblical commandments (2a). Socrates (469-399 BC) proposed an egalitarian society based on common property of assets, women, and children. Aristotle (384-322 BC), for his part, identified justice with equality: "Now what is just or right is to be interpreted in the sense of 'what is equal'" (Aristotle, Politics III, XIII), and defined, "constitutional rule", as "a government of freemen and equals." (ib. I, VII).

The ideal of men's equality is, therefore, deeply-rooted in both ancient sources of Liberalism. Equality, however, is not so simple a question. Men are not equal by nature. Not all are born with the same health, wisdom, valor and natural inclinations. As already noted, Aristotle accepted the existence of men who are slaves by nature: "It is clear, then, that some men are by nature free, and others slaves, and that for these latter slavery is both expedient and right." (ib. I, V). The Bible also deals with slaves that resist freedom: "Then you shall take an awl and thrust it through his year to the door, and he shall be your servant for ever." (Deuteronomy 15:17). And Charles Louis de Secondat Baron de Montesquieu (1689- 1755) though he rejected the idea of "slaves by nature", accepts the impossibility and inconvenience of a strict equality: "Though real equality be the very soul of a democracy, it is so difficult to establish, that an extreme exactness in this respect but not be always convenient." (Montes. The Spirit of the Laws, , i, V, 5.)

Wealth is perhaps the most problematic aspect of inequality. The laws of many ancient societies whose economy was based on agriculture included measures to preserve the egalitarian distribution of land. The Bible establishes the return of the land every 50 years to its original owner: "In this Year of Jubilee each of you shall return to his possession." (Leviticus 25:13). Aristotle tells us that similar measures were taken in some Greek states: "Formerly in many states there was a law forbidding any one to sell his original allotment of land." (Ib. VI, IV). And Montesquieu for his part affirms: "The law which prohibited people having two [land] inheritances was extremely well adapted for a democracy." (ib., i, V, 5.)

Rules preventing the forced selling of the means of subsistence and housing are present in the liberal legislations of all ages. Aristotle tell us: "There is a similar law attributed to Oxylus, which is to the effect that there should be a certain portion of every man's land on which he could not borrow money." (ib. VI, IV). And similar dispositions appear in many modern liberal constitutions and legislations, such as in the Constitution of the State of California (1849): "The legislature will save by law certain portions of the domestic and other goods of every family head in order to avoid its forced selling" (2b).

Nevertheless, there are forms of accumulated wealth which contribute to the creation of means of production and hence to an elevated standard of living of the population. They constitute, therefore, a form of inequality favorable to "the common good of the citizens." Aristotle, conscious of this fact, added a prudent qualifying comment to his assimilation of justice to equality: "and that which is right in the sense of being equal is to be considered with reference to the advantage of the state, and the common good of the citizens." (Ib. III, XIII).

In primitive societies there were three main forms of wealth -- land, livestock, and valuable metals. While land accumulation was seen as an antisocial action, and therefore condemned by Biblical (2c) and Greek classics, wealth in the form livestock and metals were accepted and considered one of God's ways of blessing the just and hardworking. This different attitude to wealth in terms of land as opposed to in livestock and metals is justified by the fact that the latter create new means of production, rather than merely gathering existing ones.

Etymologically "capital" derives from the Latin word caput = head, and capital originally meant wealth in terms of numbers of animals' heads. Capitalism began, therefore, when mankind succeeded in replacing hunting by domesticating the animals needed for nutrition and clothing, viz. when production replaced gathering. Also in the ancient societies valuable metals were a form of wealth necessary to the development of commerce, which was then, as it is now, a constituent of the wealth of the nations (2d).

Following the Bible and the Greek classics, concern for just land distribution was present in the thinking of many modern liberals. Also the Agrarian Reform, based on the principle that land must be owned by the one who works it, has enjoyed widespread liberal support. The Industrial Revolution, however, has changed the situation. On the one hand, agriculture has lost its significance as the main means of subsistence, being replaced by many other, and partially new, occupations. On the other hand, the improvement of tools and systems of production has rendered inefficient the "economic unities", which served as the basis for the Agrarian Reform (See Note 6 in Chapter II.) Presently, land and agriculture must be considered similar to any other asset and branch of economy, and must be stripped of their ancestral mystic aura.

The Industrial Revolution developed a form of wealth, which had previously existed only at an embryonic stage: Capital invested in the continuous creation and improvement of products and means of production. New and constantly improved agricultural tools freed the majority of the population from the need to produce food. The production of new commodities made demands on the manpower formerly occupied in agrarian activities. Industry, commerce, education, health, welfare, arts, research and development become the main occupations. New commodities which appear almost daily, are seen as basic needs for an increasing part of the population. Nutrition, which is the main agricultural production, remains a central preoccupation only in undeveloped countries that have not succeeded in establishing a liberal economy and carrying out the Industrial Revolution.

Thanks to the capital invested in investigation and development in all areas of human life from health to entertainments, the living standard of the masses has been rising at a dizzying pace over the last 250 years. The unequal distribution of wealth, similar to the difference of potential in electrical circuits, is required in order to maintain alive this process. The resulting rise in the standard of living, however, has increased the workers' savings capacity, which through investment in bank deposits and stocks, has led to a steady increase in the workers' participation in the ownership of factories. We are, therefore, not so far from the day when workers will be the main owners of the means of production. This would be the liberal realization of the Marxist dream. However, it would happen through a free social process, without government intervention, dictatorship, enslavement, murder, and final collapse. 
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Notes:

(2a) "One law shall be for the native-born and for the stranger who dwells among you." (Exodus 12:49) "Therefore love the stranger, for you were strangers in the land of Egypt." (Deuteronomy 10:19), and many other sites.
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(2b) Translated from the Spanish version in "Bases" of Juan B. Alberdi (1852). 
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(2c) "Woe to those who join house to house; They add field to field" (Isaiah 5:8)
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(2d) "True is that when a democracy is founded on commerce , private people may acquire vast riches without a corruption of morals" (Mont., ib., i, V, 6.)
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3. Liberal Equality

Since the concentration of wealth is required for the development of an industrial- commercial society, wealth equality does not fulfill Aristotle's condition of being for "the common good of the citizens". Therefore, what remains of the liberal principle of equality is "equality under the law", which formally gives to everybody the possibility of access to every social position and wealth.

This formal possibility, however, is not and cannot actually be the same for all. Everyone does not inherit the same wealth, health, and mental capacity, nor does everyone grow up in the same kind of home and receive the same initial education. Furthermore, children who are poorly-fed or unhealthy will not achieve, satisfactory development either in physical or intellectual terms. Certainly, no liberal would like to live in a society where children would be born by means of artificially selected ovules and spermatozoa and raised away from their parents, in state egalitarian educational establishments.

Therefore, there is no complete solution for this initial inequality. Yet what a modern liberal society can and must do, is to assure for every child adequate food, medical attention and instruction. This was a main aspiration of Liberalism throughout the ages (3a), which, however, was not possible when, before the Industrial Revolution, nearly all the population working in food production scarcely succeeded in providing the needed food for humankind survival. But today, when in the developed nations only a small proportion of the available workforce is involved in providing all the food needed and the great majority works in the production of secondary commodities, society can and must do it.

But it is clear, that "society" must not be interpreted in the sense of "state" or "government." Fortunately, there are a multitude of men and women, who, regardless of whether they are motivated by pure altruism or by the universal seeking for self-appraisal, are eager to offer from their time, energy, and money to every worthwhile cause. There is not doubt that private initiative, be it voluntary or commercial, can deal with children's needs more efficiently than government. (See the last paragraph in Chap. I Sec. 4) 
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Notes:

(3a) ""And indeed in a well-regulated democracy, where people's expenses should extend only to what is necessary, every one ought to have it." (Mont., ib., i, V, 6.)
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4. Liberty

Echoes of continuing struggle for liberty are perceived throughout the history of humankind. This struggle is the leitmotif of the Bible, whose political philosophy, religious conception, and moral teachings are presented through the saga of an enslaved people, which, after being liberated from human domination, surrenders itself voluntarily to the rule of the law. This conflict between the rule of law -- source of liberty, and the rule of men -- source of oppression, is also found in the liberal Greek and modern political philosophers. These philosophies share the principle that coincide in that individual liberty can exist only under the rule of law, which they do not hesitate to denote, following the Bible and Aristotle, as the "rule of God and Reason" (Aristotle, Politics, III, XVI).

The struggle for liberty was never a "war of classes". Liberty lovers as well as those who, in contrast, prefer the real or imaginary security associated with dependence relations, have been always present in all social classes. Moses, the adoptive son of Pharaoh, biologically related to the slaves yet personally a member of the ruling family, was the one who freed his enslaved brethren. And the latter were those who rebelled against Moses when, confronting the difficulties of freedom, longed for the "pots of meat" in Egypt (Exodus 16:3). Aristocrats such as the Baron de Montesquieu and the Marquis of Lafayette headed the liberal revolutions in Europe and America, and white abolitionists fought for abolition of slavery throughout the world. While they were European peasants who, seeking protection, voluntarily submitted their freedom and lands to feudal lords.

Over a period of nearly two centuries, from the death of Joshua to the enthronement of Saul as first king of Israel, the tribes of Israel were ruled by judges and a deliberating body -- the "Elders of Israel". The main function of the Judges was to administer justice by applying the law dictated by Moses during the forty years of peregrination through the desert. The Bible describes this period by repeating the phrase: "In those days there was no king in Israel; everyone did what was right in his own eyes" (Judges 21:25). It was not a state of anarchy, because ordinary men are able to discern between right and wrong; and because they were guided by a stable, concise, and easily- understandable law, which was voluntarily accepted by their fathers over two centuries ago. It was, on the contrary, a faithful realization of the liberal dream described in the Bible as the reign of God: "..they have not rejected you, but they have rejected Me, that I should not reign over them." (I Samuel 8:7), was the answer of God to Samuel, when the Elders of Israel asked a king.

The connection between liberty and political regime is already evident in the admonition of Samuel to the Elders of Israel in the 11th century BCE (1 Samuel 8. Quoted in Chap. I Sect. 4.) The issue was also investigated by Aristotle in the 4th century BCE, and by Montesquieu two millennia afterwards. Their investigation of hundreds of political regimes have yielded a common conclusion. that whatever the regime -- monarchy, aristocracy, or democracy -- liberty will exist only under the rule of law, and never under the rule of men (4a).

Rule of law, as opposed to rule of men, means that the powers established by law but necessarily exerted by men must be restricted to what the law defines as their responsibilities and duties (4b). On the contrary, the law must not specify citizens' activities, but only limited them when it is necessary to preserve the rights and the liberty of others. This is the case, because men are free and responsible beings by nature, and are conscious of their obligations and moral restrictions, whose liberty is required more for the purpose of fulfilling obligations than for doing what they want. Citizens are therefore subject to the law in a much more limited sense than are the authorities. While the rule of law implies that the authorities are restricted to the specific functions determined therein, it gives citizens the right to do anything that is not specifically forbidden (4c)
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Notes:

(4a) "The law ought to be supreme over all" (Arist. ib., IV, IV)

"Therefore he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire." (Arist. ib., III, XVI)

Compare with the answer of God to Samuel in 1 Samuel 8:7, when the elders of Israel asked a king: "And the Lord said to Samuel... they have not rejected you, but they have rejected Me, that I should not reign over them.", and with Pirkei Avot III, 5, (2th century CE): "Who submit himself to the Tora, is liberated from submission to the King."
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(4b) "And the rule of the law, it is argued, is preferable to that of any individual. On the same principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law" (Arist. ib., III, XVI)
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(4c) "Liberty is a right of doing whatever the laws permit... In societies directed by law, liberty can consist only in the power of doing what we ought to will, and in not be constrained to do what we ought not to will." (Montes., ib., i, XI, 3.)
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5. Restriction of Government Functions

The preceding section suggests that a basic law or constitution is necessary to restrictively delineate the government's functions and duties, and non-restrictively the citizens' rights (5a). The government must be restricted to fulfill functions that exceed citizens' capability (5b). Specific functions may vary with the geographic conditions and the country's state of economic and technological development. It is possible, therefore, that in undeveloped and open countries paving roads and children instruction should be implemented partially or totally by the government, while in other countries they can and must be implemented by private initiative. However, there are spheres which in principle must never be subject to government intervention, such as: religion, education (5c), press, science, and anything concerning thinking, belief, and private life.

Control of education and press was always the main tool of totalitarian regimes for instituting "collective thinking" and molding the citizens according to their ideological patterns. In liberal regimes, where the mere notion of "collective thinking" is inconceivable, education must be the exclusive concern of parents, and the government must stay far away from the press, and the electronic media (5d).

Instruction and education must be clearly distinguished from one another (5e). They are not only different, but fundamentally contradict one another. Instruction aims to provide young individuals with facts and technical knowledge that enable them to make independent judgments and participate in the production and enjoying of national wealth. Therefore, instruction must be objective and unbiased by nature. In contrast, education aims to mold young individuals according to a given pattern, and therefore is not and cannot be objective. As established in an earlier section, the liberal principle of "Equality" establishes that all individuals should have access to adequate instruction in order to develop their potential capacity. Therefore, although instruction should preferably be provided by private initiative, government intervention is tolerable as a complimentary action intended to guarantee every child their deserved opportunity. As a rule, however, government should completely abstain from participating in any educational activity. 
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Notes:

(5a) The United Kingdom presents an exceptional case of a liberal regimen which lacks a written constitution. The British Liberalism began on the down of British history, in the times of William the Conqueror (1027-87), or even before it. It had a notable expression in the Magna Carta imposed by English barons and churchmen to John of England in 1215, which limited king's power and established the basic subject's rights. Thereafter, in the middle of the 17th century, the parliament rebellion against Charles I headed by Oliver Cromwell reinforced the British liberty. And it was one century before the American and French revolutions, when in 1688 the "Glorious Revolution" replaced James II by the royal couple Mary II and William III, who accepted the "Bill of Rights", and agreed to rule in accordance with the law and the consent of the parliament. It was its long history, and the balanced forces of the monarchy, aristocracy, and commons what allowed the development of a liberal regime based more in tradition than in a written constitution.
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(5b) "The people, in whom the supreme power resides, ought to have the management of everything within their reach; that which exceeds their abilities must be conducted by their ministers." (Montes., ib., i, II, 2)
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(5c) "..I think it is clear, that education must be ranked in the latter class, or among those things in which the civil magistrate has no right to interfere" "An Essay on the First Principles of Government and of the nature of Political, Civil, and Religious Liberty" (1771). Priestley Joseph (1733-1804). British scientific, political philosopher, priest, oxygen discoverer, and one of the founders of modern Liberalism.

"It is in a republican government that the whole power of education is required"..."but the surest way of instilling it into children is for parents to set them an example." (Montes., ib., i, II, 5)
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(5d) In Israel, there are only three streams of education permitted for Jewish children -- the state-secular, the state-religious and the "independent". The first two are governmental, while the third is controlled by certain religious factions. In the 1950s, when an influx of Jewish immigrants from Arab nations arrived to Israel, the totalitarian regime headed by Ben Gurion saw them as primitive-religious people who must be reeducated and molded to the western-secular civilization. The education of these children by teachers, who despised their parents' culture, had a destructive impact on the immigrant families.

The situation today is not much better. The police has recently opened 76 criminal files against parents who dared establish a private school for their children. ("Haaretz" May 11, 1997.) Radio and television are controlled by a government monopoly, which has been somewhat moderated by governmental concessions, under strong limiting conditions, to monopolist cable-television companies. The newspapers, which were dependent on an economy dominated until recently by the government and the Histadrut (the central labor union), express only the leftist point of view.
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(5e) "But they confused education with instruction...You can educate (cultivate) trees; but only rational beings can be instructed." (Juan Bautista Alberdi, (1810-84) "Bases and starting points for the political organization of the Argentine Republic", Chap. 13 (1852).)
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6. Separation of Powers

In order to preserve civil liberties, separation and autonomy of powers is even more important than whether the regime is monarchic, aristocratic, or democratic (6a). This principle already reached a high degree of development in the Greek democracies, whose basic institutions have continued to serve as a model for modern liberal constitutions. At least three separate and independent bodies -- legislative, judiciary, and executive -- must be in charge of enacting, interpreting, and applying the law, respectively. In addition, in most cases a fourth body, the constituent assembly, is in charge of establishing and amending the constitution.

The constitution fulfills two fundamental aims: First it establishes the respective structures, functions and limits of the powers. Second, it enumerates the essential rights of the subjects non-restrictively. Sanction or amendment of the constitution by one of the three classic powers, gives that power the right to determine and change its own functions and limits, as well as those of the other two branches, and enables it to dominate them. Furthermore, the criteria for the election of members of a constituent assembly differ from those for election of ordinary legislators, and their election must be preceded by public discussion of the proposed constitution or amendments.

In liberal regimes citizens and commercial or voluntary organizations carry out many of the functions fulfilled by the government in the totalitarian regimes. Hence, in addition to the above mentioned government powers, there are numerous civic powers which influence civil liberties no less than the governmental ones. Civic powers include: employers, industry, commerce, press, electronic media, clergy, trade unions, political parties, instructional and educational institutions, etc. These powers must also be independent, limited, and separate in order to preserve civil liberties. For instance: The employer-employee relations must be limited to completion of the work for which the employee was contracted. Any integration of political, religious, moral, or other elements that are irrelevant to employer-employee relations, will detract from the employee's liberties. Strict separation of trade unions and political parties is also essential for workers' political freedom. Separation of industry and commerce favors free competition. Education and instruction must be separated in order to ensure the objective character of the latter, as well as avoid presenting the parents with the choice of accepting desired instruction together with undesired education or giving up both.And so on.

Separation of powers is violated in regimes that accept Lenin's principle of "party obedience" (6b). This principle, which caused the Russian Workers Party to split into the Bolshevik and Menshevik factions, establishes that party members elected to fulfill government functions must act according to the directives of the Party's Central Committee. They would not act as representatives of the people, loyal to their constituents, but as party delegates. loyal to their party. Therefore, the Central Committee of a major party would assume absolute power, by controlling the members of the theoretically separate powers, rendering their apparent separations meaningless. 
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Notes:

(6a) "In the republics of Italy, where this three powers are united, there is less liberty than in our monarchies." ... "When the legislative power and the executive powers are united in the same person, or in the same body of magistrates, there can be no liberty"... "Again, there is no liberty, if the judiciary power be not separated from the legislative and executive .... the life and the liberty of the subjects would be exposed to arbitrary control; for the judged would be then the legislator" (Montes., i, XI , 6)
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(6b) "What Is to Be Done?" (1902) Vladimir Ilich Lenin (1870-1924)
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7. Legislature

Compliance with the law must be based more on habit and conviction than on enforcement. A law must be, therefore, more the result of good will, mutual understanding, and compromise than a decision imposed by the majority. All sectors of the society must participate in its elaboration, and their specific needs must be taken into account, namely, the legitimate rights and needs of the minorities must prevail over the strict rule of the majority, which may be no less oppressive than the tyranny of a monarch (7a). Therefore, in order to allow for ample participation of all sectors in formulation of the laws, the legislature must be composed of numerous representatives.

Since every law entails limitation of individual liberty, the number of laws must be minimized, and the absence of a law that can be deferred is always preferable to sanctioning unnecessary laws. Furthermore, a voluminous and/or frequently changing body of laws exceeds the scope of knowledge of the ordinary citizen and can lead to unwitting offenses, which cannot be justifiably punished. Therefore, enacting new laws or changing existing ones must be approved for more than one independent instance (7b).

Liberal constitutions frequently provide that every law would be considered by two independent houses of parliament and by the executive branch before being promulgated. Once a law is approved by the house that initiated the legislative process, it must be passed to the other house, which can approve it, or reject and return it to the initiating house for its reconsideration. After the law has passed the bicameral approbation, it must still be promulgated or vetoed by the executive branch. In the latter case, the law is returned to the legislature for reconsideration, which can overrule the executive's veto by means of a special majority (7c). After promulgated, the law can be annulled by the Supreme Court if it is found to contradict a constitutional disposition. In contrast with this four-steps process of consideration by separate and independent government powers, the all-powerful, monocameral Israeli parliament, is only apparently limited by basic laws, which were recently established and can be abolished or amended by the parliament itself.

In a heterogeneous society, the need for a bicameral parliament conforms with another liberal principle -- preventing domination of differentiated minorities by the majority. This is the case of the House of Lords in the United Kingdom and the Senate in the United States of America, as well as in many other federated nations, in which the second or high house is intended to give extra weight to minorities.

In the United Kingdom, the bicameral system originated with splitting of the society into aristocracy and commons, which characterized the society when the liberalization process began. Acceptance of this splitting as an established fact generated a gradual transition in which the House of Lords lost prerogatives as social differences declined.

In many federated nations, the bicameral system was established in order to compensate the less populated states for the potential threat of being overpowered by larger ones in a strict "one man on vote" system. Whereas every state sends a proportional number of representatives to the lower house according to the size of its population, all states have an equal number of members in the senate regardless of population size. For instance, in the senate elections, every Arkansan has the same weight as nearly thirteen Californians. Although this may seem to be a flagrant violation of democratic principles, it conforms with three fundamentals of liberal philosophy: First, a man is not a simple number or undifferentiated item. Therefore, the issue must be considered in its complexity, which includes membership in a social, national, or religious group. Second, the rule of the majority is not necessarily less oppressive than that of a single dictator (7d). Third, the law must be adapted to reality and not to purport to be capable of creating a new reality. Therefore, it can not ignore the heterogeneous structure of the society which it is intended to rule (See note (1b) in Section I of this chapter.)

In the Euro-continental parliamentary democracy of Israel, which follows a one-man-one-vote system and lacks a constitution, the situation of minorities is paradoxical. On the one hand, non-Jewish minorities are severely discriminated against by the Jewish majority; on the other hand, the Arab minority has a decisive influence on matters concerning the security of the Jewish majority, which is in state of conflict with surrounding Arab nations. The highly diverse nature of Israeli society will necessarily lead to the replacement of its actual quantitative democracy with a more liberal system that assures the genuine rights and needs of all its sectors (See "Democracy in a Heterogeneous Society"). Measures must be adopted to guarantee rights of minorities, together with sectoral abstention from participating in decisions that may lead to conflict of interests. This apparent violation of democratic norms is perhaps the secret of the most stable liberal regimes, such as British and American (7e).

In a liberal regime, the specific function of the parliament is to discuss and sanction laws, whereas in parliamentary democracies the parliament also appoints the executive branch. In the Euro-continental parliamentary regimes, the tight control by the legislature mak es the executive branch more an arm of the legislature than a separate and independent power. The principle of separation of powers, which constitutes the cornerstone of liberty in liberal philosophy, is thus violated (7f). In practice, it has disastrous consequences, especially when combined with coalition regimes, served as democratic gateway for the ascension of Marxism, Nazism and Fascism. Furthermore, the continuous involvement of the parliament in non-legislative affairs, exacerbates antagonism between representatives contrary to the spirit of thoughtful serenity and dialogue needed for the legislative function. 
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Notes:

(7a) "Now they agree in saying that whatever is decided by the majority of the citizens is to be deemed law. Granted: but not without some reserve" (Arist. ib, VI, III)
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(7b) "For the habit of lightly changing the laws is an evil, and, when the advantage is small, some errors both of lawgivers and rulers had better be left; the citizen will not gain so much by making the change as he will lose by the habit of disobedience. The analogy of the arts is false; a change in a law is a very different thing from a change in an art. For the law has no power to command obedience except that of habit, which can only be given by time, so that a readiness to change from old to new laws enfeebles the power of the law." (Arist. ib. II, VIII)
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(7c) "The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting."... "The executive power,..., ought to have a share in the legislature by the power of rejecting" (Montes., ib., i, XI, 6)
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(7d) "The decrees of the demos correspond to the edicts of the tyrant;" (Arist. ib., IV, IV)
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(7e) "For many practices which appear to be democratical are the ruin of democracies" ... "Therefore the legislator and the statesman ought to know what democratic measures save and what destroy a democracy" (Arist., ib., V, IX)
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(7f) "But it is not proper , on the other hand, that the legislative power should have a right to stay the executive." (Montes. ib., i, XI, 6)

"Two powers that generate one the other in this manner cannot be too independent". (Alberdi ib., Chap. 9)
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8. Executive

The executive branch is entrusted with carrying out the specific functions needed to implement the law. In contrast to the legislature it is not a forum for philosophical discussions, in which all streams of thought must be represent, but the responsible for practical and sometimes urgent decisions, which must be taken under rapidly changing circumstances. In a collective body the sense of responsibility declines with the increase in membership, since nobody feels personally responsible for collective decisions. This is the cause for acts of violence and cruelty perpetrated by groups, which would never be committed by individual members alone. This is true at all the levels, from gangs of adolescents to ministerial cabinets. Therefore, the executive is best administered by one man assisted by expert advisers (8a).

The separation and independence of the legislative and executive powers requires separate election, and that no member of the executive would serve as a member of parliament (8b). These basic requisites are clearly violated in coalitional parliamentary regimes: Ministers share collective responsibility for decisions, and are members of both powers. Moreover, they are selected on the basis of electoral ascendancy rather than on their ability and knowledge. 
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Notes:

(8a) "The executive power ought to be in the hands of a monarch [one ruler], because this branch of government , having need of despatch, is better administered by one than by many." (Montes. ib., i, XI, 6)

"Neither ought the representative body to be chosen for the executive part of government, for which it is not so fit, but for the enacting of laws .." (Montes. ib., i, XI, 6)
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(8b) "But if there were not monarch [one ruler], and the executive power should be committed to a certain number of persons selected from the legislative body, there would be an end of liberty; by reason the two powers would be united, as the same persons would sometimes possess, and would be always able to possess, a share in both." (Montes. ib., i, XI, 6)
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9. Judiciary

The laws enacted by the legislature are implemented by the executive and interpreted by the judiciary. The latter, therefore, has the power to decide when the law has been violated by citizens as well as by rulers. As are all subject to the law, they are in effect subordinate to judicial power, which has in its hands citizens' liberty, lives, and property, and the last word with respect to the legality of every decision made by the legislature or the executive branch. Such far-reaching prerogatives must be balanced by the most severe limitations:

a) Judges can only act when they are asked to interpret the law with respect to a particular situation, and not by their own initiative (9a).

b) They must interpret the law as it was intended by the legislators and previous jurisprudence. Otherwise, citizens cannot know what is allowed and what forbidden by the law, and liable to commit unwitting offense. It is a principle of justice that no one can be judged on any ground other than a law existing at the time the allegedly illegal act was committed. Since judgment always takes place after the fact it is dealing with, every innovative interpretation of the law is in flagrant violation of this fundamental citizen's right (9b).

The tendency to achieve increasing power is part of human nature, and judges are human beings. The claim that the changes in social norms and customs require modified interpretation of the law, is espoused by judges everywhere, including the United States and Israel. However, in order for the changes to be justly implemented, they must be sanctioned before the judged deed was committed, i.e., at the time of legislation, and not at the time of judgment. Furthermore, there is no essential difference between changes in the letter of the law, or in its interpretation. Therefore, if changes in society require changes in the law, they must be effected by the legislature elected to this purpose by the people, and not by the judges.

c) Judges must refrain from allowing their personal convictions and beliefs to influence their decisions. Certainly, nobody is capable of totally preventing subconscious factors from influencing his thoughts and actions, and the above condition will never be fully satisfied.

Nevertheless, judges can and must adopt norms of behavior that promote objective practice and exclusion of his personal inclinations. Like gynecologists who must behave with their patients as if they totally lack sexual instinct, judges' feelings and personal opinions must never appear in their sentences.

d) To consolidate citizen's confidence in their impartiality, they must abstain from political, religious, or other public controversies.

In order to keep judges removed from political activity, they are, in contrast to the other two branches, generally nominated rather than being elected by the people. Furthermore, in order to ensure their independence, judges are nominated for life and they can only be removed from office if they were found guilty of violating the law. These two flagrant deviations from the democratic principles of popular election and periodic replacement of rulers are intended to safeguard citizen's liberty. Nonetheless, judges must never participate in the nomination and promotion of their own colleagues, which would be a form of self-nomination that would constitute an unjustified additional violation of democratic norms. 
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Notes:

(9a) "The law ought to be supreme over all, and the magistracies should judge of particulars, and only this should be considered a constitution. (Arist. ib., IV, IV)
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(9b) "But though the tribunals ought not to be fixed, the judgments ought; and to such a degree as to be ever conformable to the letter of the law. Were they to be the private opinion of the judge, people would then live in society, without exactly knowing the nature of their obligations."

"But as we have already observed, the national judges are no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigor." (Montes. ib., i, XI, 6)

"And he shall not judge by the sight of his eyes. Nor decide by the hearing of his hears. But with righteousness he shall judge the poor.And decide with equity for the meek of the earth." (Isaiah, XI, 3-4)
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10. Their mutual control

Government powers, though separate and independent, must monitor each other in order to assure that they remain within the limits of their respective functions and prerogatives established by the law.

The legislative branch controls the executive and judicial powers by enacting the laws that bind them, and by the prerogative of impeachment, which enables the executive head and the Supreme Court judges to be deposed if they violate the law (10a).

The executive branch controls the legislature by the right to veto the laws and return them for its reconsideration. This executive's right to rejecting legislation can be overruled by a special majority in the legislature. (10b).

The Supreme Court can totally or partially abolish a law if it conflicts with constitutional prescriptions. Moreover, all inhabitants are entitled to appeal to the Supreme Court if they feel they have been unjustly affected by a measure of the executive. 
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Notes:

(10a) "They are both [legislative houses] restrained by the executive power as the executive is by the legislative." (Montes., ib., XI, 6)

"But if the legislative power in a free state has no right to stay the executive, it has a right and ought to have the means of examining in what manner its laws have been executed;" (Montes. ib., i, XI, 6)
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(10b)"Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law" (Constitution of the United States of America Article I Section 7)
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