Some Thoughts On The Rule Of Law

     What with the violent assaults on Right-allied demonstrators by the masked thugs of “Antifa” – George Orwell, where are you when we need you? – and allied groups such as “Black Lives Matter” – if they matter, why do they kill one another in such appalling numbers? – while municipal police visibly refrain from doing their jobs, there’s been a lot of talk about the abandonment of the “rule of law.” Some of it has been on the mark. Some, but not much.

     The compressed interpretation of the phrase “rule of law” is that the law applies to all persons regardless of their identities or statuses. That interpretation has been uppermost in the minds of those protesting the police passivity during events in Charlottesville, Berkeley, and the like. Yet while evenhanded enforcement of the law is an aspect of the “rule of law” as the originators of the concept saw it, it’s far from the whole thing.

     As usual, no one else is addressing the larger subject, and so...

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1. The legislative aspect.

     Law as something other than the whim of those in power is an ancient concept. Yet few nations have cared to try the concept in practice. Fewer still have managed to do so.

     For there to be a Rule of Law in principle rather than merely by lip service, the corpus of laws must meet certain criteria:

• They must be clear of impact.
• They must not distinguish among persons.
• They must not contradict one another in any way.
• They must be made by a consensus-approved process.

     That last condition requires elaboration. The process by which laws are made or changed must itself be controlled by a law which commands overwhelming popular assent. Moreover, the control must ensure that the legislative process is highly stable. If that process can be changed, the manner of change must be:

• Public;
• Difficult;
• Deliberate.

     Otherwise, private citizens would be justified in thinking that whim had taken command of the law. Under such conditions, there cannot be sufficient stability in the law to command the required consensus. In this we glimpse the great importance of a supreme law that governs the making of all other laws.

     It should be clear from the above that the United States has not known a true rule of law for quite some time. All the requirements above have been violated repeatedly, sometimes with callous disregard for any consideration other than the whims of elected officials, at the federal, state, and local levels for more than a century.

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2. The executive aspect.

     Laws must be both made and applied. The executive agency of the state, with emphasis on its instruments of force, is the one that deals with application. Here appears the colloquial interpretation of the rule of law.

     Under a true rule of law, the executive cannot decree that the law only applies when he wishes. Neither can he modify the import of the law, reading into it new bits according to his tastes, or omitting from it parts that excite his displeasure. Of course, the wording of a law has great bearing upon that last matter: if the law is ambiguously worded, the executive can hash it up however he pleases, subject only to subsequent constraint by the judicial agency, if at all.

     Clearly, those conditions narrowly limit the latitude of the executive. That’s what the Founding Fathers had in mind when they wrote into the Constitution that the president “shall take care that the Laws be faithfully executed.” An executive not constrained in such a fashion would inevitably wield de facto “lawmaking powers” himself.

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3. The judicial aspect.

     The role of the judiciary in implementing a rule of law is subtler than it appears. Not only is a judge required to abide by the law as written; he is also forbidden to depart from the processes prescribed for determining if a law has been broken. Furthermore, he is required to adhere to the law’s stated penalties for violation, imposing neither lighter nor heavier burdens than the law allows. Well considered, well written laws thus constrain the judiciary almost as narrowly as they do the executive.

     The United States inherited the English legal tradition of the jury trial. In such a trial, the judge upon the bench acts solely as a referee. He imposes the prescribed trial procedures and rules when they have been violated. He charges the jury with the law as written. He superintends the development of the cases for and against the defendant, and has only the latitude specified in the law itself in imposing a sentence upon a defendant adjudged guilty. If those conditions are observed, it is perfectly reasonable to say that the true enforcers of the law are the jurors, without whose consent no man can be punished.

     As with legislative and executive excesses, many American judges have greatly exceeded their proper roles under a rule of law. The particularly egregious use of contempt charges to impose their will and to prevent lawyers from presenting important factors and arguments – including Constitutional principles that are supreme over all other aspects of the law – has been a subject of much recent discussion. In combination with prosecutorial discretion, which is so frequently and outrageously abused as to be a major scandal, this has made a mockery of American jurisprudence. But this is too large a subject for a Thursday morning essay.

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4. The public aspect.

     As I’ve written more often than I care to remember, for a law to be enforceable at all, it must command a popular consensus so overwhelming that those who would choose to violate it are of trivial numbers. My estimate, based on the “success” of various well known laws, is that if 2% or more of the public regards a law as morally or ethically irrelevant, that law cannot be evenhandedly enforced. This, too, bears upon the rule of law, especially with regard to prosecutorial discretion and the maintenance of overall popular respect for the law.

     Apropos of the above, officer candidates in our various military academies are taught, early and often, not to give an order that won’t be willingly obeyed. This is simple realism. Ultimately, respect for the officer’s authority arises from his subordinates’ willingness to obey him; he certainly cannot impose his will forcibly upon armed men who outnumber him. It’s the same with the law: a law that won’t be obeyed and cannot be evenhandedly enforced undermines the rule of law by weakening respect for the law and those who make and enforce it. In that lies a complete and irrefutable condemnation of the majority of the “laws” with which this nation has been albatrossed.

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     Of course there’s more to say; isn’t there always? But the above should provide a jumping-off point for discussing the state of American law and legal procedure, the “success or failure” of various laws, and the cultural foundation upon which both the law and the concept of the Rule of Law must stand. At this point, the law and the mechanisms by which we choose those who will make and enforce the law are founded on sand – and in large measure because the rule of law has been so shabbily treated this century past.