In a government of laws not of men, citizens ought to be able to appreciate the difference between the following two propositions: 1) whatever is not proscribed is permitted; and 2) only actions prescribed by law are permitted.
The first proposition means that the governing authority cannot prohibit the actions of a person living in a free state unless those actions violate a law. The second proposition means that every action unaddressed by the laws is illegal and actionable.
A zoning officer in Chester, Connecticut, a town that apparently has managed to escape 2,000 years of Western law, has told a widow that she must disinter the eight month old remains of her husband, buried on private property they own, because private burials are not addressed in zoning regulations and therefore are not allowed.
The burial, overseen by a funeral director, was in accord with common practices. The violation of the non-existent zoning regulations was discovered after the widow had donated a large portion of her estate to the Chester Land Conservation Trust. Apparently, town cemeteries in Chester are full and the widow wanted to spend her last days enjoying the fruits of a successful marriage with her departed husband close at hand.
But zoning officials in Chester have determined that if an action is not expressly permitted in the town’s zoning regulations, it cannot be allowed.
Not everyone in Connecticut may have the pleasure of living in Chester, but its zoning regulations very likely are not much different than those of other towns. It may be safely assumed that since the town fathers of Chester have not included in their zoning regulations permissions and prohibitions against the burial of husbands on private property, neither do the regulations remark on the burial of household pets.
Does the failure to mention the disposition of pets in Chester’s zoning regulations mean that the town is prepared to order its citizens to disinter the cremated remains of family dogs that some householders may have buried in their back yards or farms?
What about cats? If the zoning regulations in Chester do not prohibit Mrs. Smith from planting Fluffy’s remains by the flower garden where the good lady on warm July days may visit the spot and remember hallowed times spent with her pet, is Mrs. Smith safe from the storm troopers who will invade her privacy and order her to dig up Fluffy so that zoning regulations in Chester, which make no mention of the burial of cats, may suffer no violation?
What about mosquitoes? If Mr. Smith slaps a mosquito at a family picnic and it falls to the ground mortally wounded, will Mr. Smith be forced to move the remains to an adjoining town because zoning regulations in Chester do not mention a word concerning the proper disposition of mosquito carcasses?
It is a safe bet that the zoning regulations in Chester, though they be they a mile long and two miles high, probably do not mention whether it is permitted to outwit pestiferous moles by placing a square of Ex-lax in their holes – Try it, it works – and yet, according to zoning regulators in Chester, this reliable method of mole riddance is illegal because there is no mention of the proper disposition of moles in Chester’s zoning book.
The mind reels and swoons when it considers the vast number of things and human actions not mentioned in zoning books in Connecticut – all of them, according to the Solons of Chester, illegal.
It is through such misinterpretations of the rule of law – not a series of statutes but rules and conventions that affect the making of governments and laws – that republics and democracies fail. Romans in the twilight of their republic suffering under the rule of a succession of Caesars, each nuttier than the tyrant he supplanted, knew that Nero could make the trains run on time; but they also knew that power vested in people rather than in laws corrupts absolutely – which is why the praetorian guard stood idly by when Nero poisoned himself. Julius Caesar was murdered in the senate by patriots yearning for a return to republican self rule.
According to news reports, the widow intends to sue Chester’s Twilight Zoning Board. May she find a judge who agrees with the doctrine that what the law does not prohibit is permitted, a rule of law neatly encapsulated in the familiar provision that rights and immunities unmentioned in constitutions are retained by the people.
And after the widow wins her case, here's hoping she might consider running for Chester’s zoning board.