Reformation Remembered

So what do Boris Johnson, BREXIT, a Constitutional Crisis and the highest Court In Scotland all have to do with a book published almost 400 years ago?

It is 375 years since the ink first dried on Samuel Rutherford’s revolutionary book Lex Rex, but the words which earned him the death sentence have also proclaimed a death sentence for the Prime Minister’s BREXIT plans.

A Book Declared so Revolutionary by the Government that it was outlawed and burnt is still setting the World on Fire.

In a shock ruling Scottish appeal court judges have declared Boris Johnson’s decision to suspend parliament in the run-up to the October BREXIT deadline is unlawful.The three judges, chaired by Lord Carloway, Scotland’s most senior judge, overturned an earlier ruling that the courts did not have the power to interfere in the prime minister’s political decision to prorogue parliament.

Lawyers acting for 75 opposition MPs and peers argued Johnson’s decision to suspend parliament for five weeks was illegal and in breach of the constitution, as it was designed to stifle parliamentary debate and action on Brexit. Their case was in part based on the writings of Samuel Rutherford as he argued against such powers in his radical 1644 book Lex Rex.

The Cleric Who Took on a King.

The radical Presbyterian Theology and political ideology of Samuel Rutherford challenged the prevailing ideology of the Divine Right of Kings that “The King is above the law, as both the author and giver of strength thereto.” 

Lawyers who challenged Boris Johnson’s actions stated “such Divine Rights claims were expressly rejected and never formed part of the Scottish constitutional tradition. Thus in the 1644 CE work of the Scottish Presbyterian Divine Samuel Rutherford (c.1600 CE-1661 CE) Lex Rex, Rutherford answers his Question XLlII on ”whether the King of Scotland be an absolute prince, having  prerogatives  above  Parliament and laws: the negative is asserted by the laws of Scotland, the King’s oath of coronation, the Confession of Faith etc.” as follows:

“The kings of Scotland have not any prerogative distinct from supremacy above the laws. If the people must be governed by no laws but by the king’s own laws, that is, the laws and statutes of the realm, acted in parliament under pain of disobedience, then must the king govern by no other laws, and so by no prerogative above law”

A Burning Book which continues to Fuel The Fires of Revolution

Yards away from the Court of Session which rang to the words of Rutherford stands the spot at the Mercat Cross where in 1666 his book was burnt by the Government Hangman.

Overlooking it all is the statue to King Charles II who outlawed the book and condemned Rutherford to death. However his words have haunted tyrants to this day and have inspired those who believe in the sovereignty of the people.

The theology of Lex Rex was secularised by John Locke and went on to inspire the founding fathers of the United States and the basis for their Constitution.

The Modern Civil War Shaping Our Constitution

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.

A Ruling Which Rocked the Government

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.


Has the Pendulum Swung Too Far?

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.

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