Sunday, September 20, 2020

The Only Basis Upon Which Legislated Law Can Rest

     Quoth philosopher of law Lon Fuller:

     If we accept the view that the central purpose of law is to furnish baselines for human interaction, it then becomes apparent why the existence of enacted law as an effectively functioning system depends upon the establishment of stable interactional expectancies between lawgiver and subject. On the one hand, the lawgiver must be able to anticipate what the citizenry as a whole will accept as law and generally observe the body of rules he has promulgated. On the other hand, the legal subject must be able to anticipate that government will itself abide by its own declared rules. . . . A gross failure in the realization of either of these anticipations—of government toward citizens and of citizens toward government—can have the result that the most carefully drafted code will fail to become a functioning system of law.

     [Lon Fuller, The Principles of Social Order]

     A system with two tiers of citizens – one subject to the law, the other above it and immune to it – is inherently unstable. When the “tier above the law” consists of public officials – executives, legislators, judges, appointees, civil servants – the instability is magnified by the evident injustice: “Rules for thee but not for me.” It will topple, or it will be toppled. So are conditions in these United States as matters currently stand.


Paul Bonneau said...

How you can tell a member of the ruling class: the law does not apply to him.


Not just that. A two-tier system saps the willingness of those who would otherwise obey the law to obey the law. "Why bother?" when they see that the fish's head rots, but nobody is held to account?