Which Came First, ‘Legally Unbound’ or ‘Legally Bound’?

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Since I started this Blawg and since I began using “Legally UnBound” as an alias in the Blogosphere, I have often been asked what is meant by the alias. Many have assumed that I am merely striking at the opposite of the term ‘legally bound’ in an anarchical attack on the judicial system, given my many statements. Such may be the case. However, it is certainly more complex. So, today I take a few minutes to explain why I call this Blawg ‘Legally UnBound’.

There has long been a distinction in legal thought between the term ‘legally bound’ & ‘legally unbound’. While at first blush, it seems that the latter is merely a denouncement or opposite of the former, such is not the case. The term ‘legally unbound’ has its own distinct meaning, inside and outside the legal/political realm of thought.

The basis for the Blawg name is to demonstrate the irony in the term by using it in its opposite intention, by calling myself what I despise…the ‘legally unbound’. Yet, by the same intention I believe that I am one voice that is part of a group that, in a democracy, is ‘legally unbound’, though only as a group. Thus, I derive a certain amount of authority, albeit self-appointed, by being a member of this group of ‘legally unbound’. That is why I state on my Blawg that “we unbind the law.” We seek to make the gatekeepers of legality honest and fair in who they let through the gates of justice. However, by this action, I am identifying myself as an individual, which in part strips me of any sovereignty and makes me quite vulnerable to the same authority that I seek to make accountable, outside the group. This is the risk of free speech.

As you may or may not know, we thank Carl Schmitt for his “sovereignty” definition, or rather interpretation, when discussing this issue. Schmitt wrote on these subjects years ago and basically defined ‘legally unbound’ as ‘sovereignty’. To clarify, according to Schmitt, the sovereign “is he who decides on the exception.” Thus, the sovereign (legally unbound) person/entity is not the lawgiver, but rather the lawmaker (the Judiciary), because they decide how and what to enforce for the sake of legality or legalism.

In our American (U.S.) system, this role is intended for the three branches of government in a balancing act seeking to ensure that no one sovereign person/entity will ever control what the group desires. It is a bit more like a ‘power struggle’ than it is a leveling element for government. This back and forth tug-of-war between the executive, legislative and judicial branches of government by and large is the way we pursue justice. The judicial branch is arguably the real lawmaker among the three, as they decide “on the exception” to any rule of law created by the other two branches. This creates a very deep dependency upon the judicial branch for our pursuit of justice.

A brief comment about ‘cause’ and ‘effect’. Irrelevant to education, we as sentient beings, commonly reference and recognize that all effects have an original cause to that effect. To that end, the ‘sovereign’ possesses their position by way of election or appointment: the cause. The effect is brought about via their decisions, rulings, or law given to the group. This ensures a standard for legality. However, within this dynamic the point at which a decision, ruling or order becomes the cause or the effect is blurred.

That is to say that this ‘original cause’ is, simply put, an ‘effect’ from a prior cause of some other origination. This is evident in all references to the proverbial ‘who came first, the chicken or the egg’ discussion that constantly circles around in debate until the cows come home or until pigs fly, neither of which has ever happened in recorded human history.

So, who is the ‘sovereign’ or the ‘legally unbound’ in our system? Is it the judge, the governor, the president, the senator, the law clerk, the secretary, the voter…? There is a great lean toward it being the Judiciary.

Sure, I know Schmitt is an authoritarian conservative. I am not. However, he is correct when he argues that there must be one power that is ‘legally unbound’ in order for the rule of law to work. That is why, in great part, we are confused in recent history about the rule of law, equality and the like.

In past generations, the ‘sovereign’ to which all deference was made has most often been upheld as a God or multiple Gods. Any authority granted to us through the U.S. Constitution is plainly given as a right from on high, ‘In God We Trust’, the Ten Commandments, and on and on. However, today our legal system no longer embraces the quasi-theological theory of what is legal. We have changed the ‘sovereign’ or the ‘legally unbound’. Why? Our norm, our morality and our judgment has changed. This is the true vision of the separation of powers in the U.S. Constitution: its ability to adapt to the accepted morality in our society. As norms change over time and as our morality evolves to remove deity as our ultimate sovereign, we have a need to replace it with another. We are now left to search for legitimacy through our laws given a much more abstract view of morality or legality. It is this struggle to become and the resistance against the ‘legally unbound’ that ensures the perpetuation and stability of our version of justice. Given that we are in the midst of this substitution of the ‘sovereign’, I believe the struggle to become the ‘legally unbound’ continues at an increased rate of intensity.

Paul Hirst states in Carl Schmitt's Decisionism that, “Brutally put: 'Sovereign is he who decides on the exception.' The sovereign is a definite agency capable of making a decision, not a legitimating category (the 'people') or a purely formal definition (plentitude of power, etc.). Sovereignty is outside the law, since the actions of the sovereign in the state of exception cannot be bound by laws since laws presuppose a normal situation. To claim that this is anti-legal is to ignore the fact that all laws have an outside, that they exist because of a substantiated claim on the part of some agency to be the dominant source of binding rules within a territory. The sovereign determines the possibility of the 'rule of law' by deciding on the exception: 'For a legal order to make sense, a normal situation must exist, and he is sovereign who definitely decides whether this normal situation actually exists.'” See HERE.

As a result, today we are much more confused about who should be our ‘sovereign’ or ‘legally unbound’. The debate is rife with indecision and struggle over control. Since the Courts are where the interpretation of our laws occurs, they are at the top of the food chain; they are the lawmakers. That being said, the Judiciary is still subject to laws and accountability. Otherwise, the overall legal structure entitles the Judiciary to exemption from legality. However, making the Judiciary subject to laws, by the very nature of such accountability, demonstrates the impossibility that the Judiciary is the highest authority.

So who is the truly ‘legally unbound’, the ‘sovereign’, to which we entrust our sense of justice? I believe it is in flux. While intended to be us, the citizenry, our role as ‘sovereign’ is consistently being eroded, generally by the Judiciary. Why? We allow the Judiciary to be a fox guarding the hen house. At the national level, the U.S. Supreme Court guards themselves. At the state level, such as the Nevada Supreme Court, the voters guard the Judiciary, via their votes. In true form, the Judiciary guards the Constitution and we guard the Judiciary. This is where the erosion is occurring.

Why is this relevant? In a democracy, the ‘sovereign’ or the ‘legally unbound’ needs to always be a group, not an individual, and not a small group of individuals. This allows for any individual in the group to be held accountable, while the group itself maintains its sovereignty. Schmitt believed that the tension in the judicial power structure is between the highest legal authority and the enforcer of any given decision, at a lower level. In our local legal systems of justice, however, I believe the tension has always been, and will continue to be, between any level of local authority and the group that appoints/elects these gatekeepers of what is legal (e.g. the electorate). Thus, we are the ‘legally unbound’. I am merely a single voice in the group that seeks to create accountable in this struggle for ‘sovereignty’.
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