Salus populi suprema lex
(Or someone always knows what’s best for you)
It may be Latin but it’s always with us. This first of Mr Broom’s Legal Maxims is the very clearest proof that they still have something to say.
The expression was Cicero’s and formed part of his advice to wannabe statesmen.
The usual translation is something like “Let the welfare of the people be the supreme law” rather than “The welfare of the people is the supreme law”, the original sentence ending with the future imperative esto.
If you think this matters a crock in the scheme of things, I’m with you but bear in mind the observation of Sir John Selden:
There is not any thing in the world more abused than this sentence, salus populi suprema lex esto; for we apply it as if we ought to forsake the known law when it may be most for the advantage of the people, when it means no such thing. For first, ‘tis not salus populi suprema lex est, but esto.
To find out why Selden matters a crock in this context, read on.
Salus started life as the goddess of health & welfare.
Over the course of hundreds of years she was taken over by the state as something it — subtext it only — was capable of providing.
When we recall that Libertas started life as the goddess of liberty, should we be worried???
Back to Cicero. Or more importantly the bits of Cicero the founders of modern political philosophy cherrypicked for their own work.
Cherrypicking original documents is an important talent. In celebrating 800 years of Magna Carta we have been reminded of the difference between the document King John sealed at Runnymede and the liberties claimed to be protected in it by Sir Edward Coke. He was the Elizabethan & Jacobean jurist who founded the presumption of liberty underpinning Anglo-American law.
Cherrypicking is also an excellent way to ensure that fundamental and obvious maxims — and you don’t get much more fundamentally obvious than this one — are given diametrically opposed meanings by different thinkers.
In the blue corner, I present Thomas Hobbes. How does he state this basic proposition? Go to Leviathan chapter 30:
The OFFICE of the Soveraign, (be it a Monarch, or an Assembly,) consisteth in the end, for which he was trusted with the Soveraign Power, namely the procuration of the Safety Of The People; to which he is obliged by the Law of Nature, and to render an account thereof to God, the Author of that Law, and to none but him. But by Safety here, is not meant a bare Preservation, but also all other Contentments of life, which every man by lawfull Industry, without danger, or hurt to the Common-wealth, shall acquire to himselfe.
Looks good for rulers, dunnit it? Make laws and be answerable only to God.
In the red corner, I present John Locke. For him, the thing is equally clear. Check out chapter 13 of his Second Treatise:
Salus populi suprema lex, is certainly so just and fundamental a rule, that he, who sincerely follows it, cannot dangerously err. If therefore the executive, who has the power of convoking the legislative, observing rather the true proportion, than fashion of representation, regulates, not by old custom, but true reason, the number of members, in all places that have a right to be distinctly represented, which no part of the people however incorporated can pretend to, but in proportion to the assistance which it affords to the public, it cannot be judged to have set up a new legislative, but to have restored the old and true one, and to have rectified the disorders which succession of time had insensibly, as well as inevitably introduced…
Locke even thought sufficiently of the maxim to make it the epigraph at the front of the work.
But hang on. Isn’t Locke — who is writing about 40 years later — saying something fundamentally different to Hobbes?
Isn’t he suggesting that the ruler — the executive — has as duty to the people, a duty which consists of allowing the people to be convoked, to come together, to “parley”… in a parliament.
Isn’t he really saying that the legislature is god-given, “old and true”, while the divine right of kings is merely a Johnny-come-lately disorder which only time introduced?
Enter John Adams, a barrister with a sense of humour. He showed up the conundrum in clear language:
The public good, the salus populi is the professed end of all government, the most despotic, as well as the most free.
What Adams & others did when they were writing the basics for the US state was essentially to rework not only the words but the context of Cicero’s original.
The maxim is no longer sage advice to a potential ruler but now a bold assertion that the public good is determined from the perspective of a public who is the ruler.
The first words uttered by Charles I at his trial were the majestic Hobbesian “I would know by what power I am called hither.” The Puritans were unable to sustain their answer, but their successors across the Atlantic eventually provided “We the people.” So there.
A chief justice of Australia Sir John Latham observed:
The maxim salus populi suprema lex is sometimes only a statement of a principle which should guide legislators in determining whether they will make a particular law: See, for example, the discussion of the maxim in the Encyclopaedia of the Laws of England, 2nd ed. (1908), vol. ix., p. 102, under the heading “Legal Maxims”. Presumably all laws made by parliaments are thought by their supporters to be justified by a concern for the welfare of the people. The maxim, so understood, is a wise political observation — not a legal criterion of constitutional validity. From a legal standpoint, the maxim really represents a doctrine of political necessity which in time of crisis may justify extraordinary action — as, for example, under the royal prerogative in time of imminent national danger. But the royal prerogative is itself part of the common law. The view that salus populi can abrogate all law belongs to the world of war and revolution, not to that of law.
The last sentence poignantly identifies why it is so important in political rhetoric to capture the word “war”. To put up a fight against terror or ice or whatever is to invite investigation into the means by which the fight is conducted; the idea of a fair fight is caught up in civilised behaviour.
To my ear — and to many successful pollies — the sound of “war” is a sound of justification; fair play is a peacetime rule and we are at war, ergo and salus populi and before you know it you’re in jail for the common good. I mentioned Sir John Selden above; Selden also said that “Wise people say nothing in dangerous times” and sadly he may be right.
A couple of pieces of trivia to avoid a mordant end. First, the maxim was the motto of the South Australian police from 1936 to September 2003, when it was replaced by “Creating a Safer Community.” Second, it’s the motto for Missouri. I suspect Locke & Adams would have been happy to see the retranslation proffered by the state’s university, but in their spirit I must leave final judgment to you.