The Rule of Law
“Law stands mute in the midst of arms. “ – Marcus Tullius Cicero
“Bad laws are the worst form of tyranny” – Edmund Burke
“Make them bow their heads under the yoke of the law” – Russian proverb
Frequent commenter Schmedlap, who has a fine blog of his own, asked his readers a very important question:
Today a smart, well-traveled, experienced, knowledgeable guy was telling me that “rule of law” is a concept that we need to stop worrying about. Strongly disagreeing, I asked why. After he explained why, it became clear that he was working with a significantly different definition of “rule of law” than I knew of. It reminded me of recent discussions here and elsewhere over definitions of culture, torture, and terrorism. Given his definition of “rule of law” I agreed that it is not something that we need to worry about. If “rule of law” = his definition, then rule of law is not important. If “rule of law” = my definition, then rule of law is important.
Just curious, what is your understanding of what “rule of law” means?
I attempted to leave a comment, using a Google Chrome browser, but it failed to “stick”, so I will pontificate in my usual, windy, fashion here instead.
The Anglo-American tradition of “rule of law” is distinct from that of continental Europe or Confucianist traditions in A
sia, both of which are primarily concerned in different ways with the health of the state. Anglo-American “rule of law” has been an evolutionary – and sometimes revolutionary – march to constrain the exercise of arbitrary power and, eventually, assure an egalitarian access to justice. When Norman French-speaking King John of England bitterly complained at Runnymede that the English barons might as well demand his crown, he was right. The Magna Carta was intended to curb John’s capricious tyranny with formal rules governing how and when the King could exercise power against whom.
As national monarchies coalesced out of bastard feudalism’s kingdoms and medieval principalities in the fifteenth and sixteenth centuries, the Kings propagated a theory of divine right absolutism, which to our ears seems despotic, but to a sophisticated and wealthy, emerging, European bourgeoisie at that time, sounded like music. Better living under predictable, “national” laws and a King far away than a patchwork of greedy, grasping and unpredictable nobles who were ever close at hand. That same, rational, middle-class political sentiment though, soon found fault with even Enlightened absolutism.
Lord Chief Justice Sir Edward Coke, a great man to whom much is owed, but who today is largely forgotten, was the great theorist and defender of judicial independence and common law from the whims of a sovereign. Without judicial independence, the rule of law is hardly possible because it is ultimately inseparable from the executive power; Coke was instrumental in moving elite Englishmen’s minds from accepting “Rex lex” (“The King is Law”) to demanding “Lex rex” (“The Law is king”).
The matter was not formally settled with the English Civil War, which came not long after Coke’s death, or even the Glorious Revolution of 1688; nor the American Revolution of 1776 or even at Appomattox Courthouse. “The rule of law” is an ongoing struggle that must be constantly renewed by an active and vigilant citizenry if it is to be sustained.
March 6th, 2010 at 11:09 am
I am reminded of two statements that have influenced much of my thinking on the matter: .
“The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” – John Marshall, Marbury vs. Madison, 1803. . “I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society.
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This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny.” –James Madison, Federalist No. 57, 1787.
. What is the rule of law? It is the replacement of the tyranny of particulars with the rulership of blind justice; force used to protect the livelihoods and liberties of all citizens with equal and impartial zeal.
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As laws are made and executed by men, the rule of law is an ideal, not a reality that has ever been fully realized. Yet as is the case in all great deeds unatainable, we better ourselves by striving for it. Perfection cannot be obtained, but excellence can. Writing in defense of an American rule of law founded on the constituion and its institutions, Madison (in the same essay cited above) provides a compelling outline as to how this ideal may be most closely met:
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“”If it be asked: What restrains the House of Representatives from making legal discrimination for themselves and a particular class of society? I answer: the genius of the whole system; the nature of just and constitutional laws; and, above all, the viligiant and manly spirit with actuates the people of America—a spirit which nourishes freedom, and in return is nourished by it.” .
This spirit, I fear, has grown cold.
March 6th, 2010 at 11:14 am
I am reminded of two statements that have influenced much of my thinking on the matter:
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– John Marshall, Marbury vs. Madison, 1803.
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–James Madison, Federalist No. 57, 1787.
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What is the rule of law? It is the replacement of the tyranny of particulars with the rulership of blind justice; force used to protect the livelihoods and liberties of all citizens with equal and impartial zeal.
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As laws are made and executed by men, the rule of law is an ideal, not a reality that has ever been fully realized. Yet as is the case in all great deeds unattainable, we better ourselves by striving for it. Perfection cannot be obtained, but excellence can. Writing in defense of an American rule of law founded on theConstitutional institutions, Madison (in the same essay cited above) provides a compelling outline as to how this ideal may be most closely met:
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It is a spirit, I think, that has grown cold.
March 6th, 2010 at 3:44 pm
Just my opinion but Rule Of Law should = The Greatest Good For The Greatest Number. Not the good of an elite few at the expense of the many.
March 6th, 2010 at 4:55 pm
The kindest thing one can say for the term, Rule of Law, is that it is a meaningless cliche.
We can say many less kind things.
First, note that the term "Draconian" refers specically to a set of laws. The term "Rule of Law" comes from the Romans, who were not noted for their soft and fuzzy approach to civil polity. A strong case can be made that everthing Hitler did was legal and, indeed, that the Nurenburg trials were illegal. Many of the widely criticized "Zero Tolerance" episodes, where fifth graders are expelled for taking aspirin to school, are applications of "Rule of Law." Need I remind you that John Yoo was a lawyer? There is no logical reason to assert that the application of formalized social rules gives rise benign results; and the illustrations I have cited demonstrate otherwise.
Second, the current system would be better characterized as "Rule of Rhetoric." The so-called "Law" as it now stands is a vast production of complex rules, hundred page legal opinions, detailed regulations that literally no one understands. It features vague terms which critics since Plato have noted can be twisted to mean almost anything. Hence, delicate disctions of the term, "torture," and pronouncements that money is "speech" and corporations are "persons." "Affirmative action" means it is ok to discriminate. And so forth. George Orwell’s Animal Farm illustrates the process by legal terms are twisted.
And, third, indeed, read Orwell generally for a primer on how the essence of liberty lies not in abstract rules but rather in the stuff of human society, which those rules ultimately reflect. To be free, people need to control the means of their livelihoods. If we are to look at the English tradition, we should consider not Lord Coke but rather the stout English yeoman, standing tall. We live in a society in which people quiver lest their credit score be impared. Well, why is it so essential that they have credit? Employees, on command, must pull down their pants and give a drug test. Why do they not tell their boss to take that job and shove it? Our tightly linked society is subject to multiple points of failure; hence our fear of terrorists. But why is our society so tightly linked and why do we tolerate these multiple points of failure.
Blather about "Rule of Law," misses these underlying, real issues; contributes nothing to their solution; and can agravate the actual problems.
March 6th, 2010 at 5:26 pm
Of course I would have to go back to our discusion many years ago when we first connected. Are you talking about explicit laws that are easily changed, or implicit laws that never change?
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I guess the rule of law is only important when it is stable. And it is only stable when it is written in a way that it is able to maintain the implicit image of ourselves and our nation.
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How it is written then becomes important, because it must connect implicitly inside everyone of the same nation. It must be writtten in a manner that effects many and for generations. which is probably why that which is written in blood, while perhaps less stable, is more lasting than that written in ink.
March 6th, 2010 at 6:13 pm
Rule of law depends upon a healthy cultural foundation, what they used to call customs. If customs are healthy, than a rule of law can be established that turns the more important customs into formal law, leaving the bulk of policing to informal social sanctions. If custom hollows out, than the informal social sanctions have to be replaced by formal procedures of coercion. Those are far more expensive than the informal social sanctions and such any political community dry.
March 6th, 2010 at 7:51 pm
The Rule of Law is the most important concept distinguishing a free society — which is one based on voluntary action, voluntary association and voluntary cooperation, including economic activity — from a society under arbitrary rule, which can be anywhere on a spectrum from enlightened authoritarianism to outright tyranny.
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A.V. Dicey gave us the most comprehensive discussion of the Rule of Law that I know of in his <a href= "Introduction to the Study of the Law of the Constitution">http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=1714&Itemid=28</a>. First, the government has the authority and strength to impose civil peace: “the omnipotence or undisputed supremacy throughout the whole country of the central government.” This is what we nowadays call an effective monopoly on the use of force. So, anarchy is not the rule of law, and anarchy is not liberty, which is freedom under law. You must have a government capable of securing the life, liberty and property of its citizens. There can be no rule of law until the capacity to rule has been established. That is, if you will, the “rule” side..The “law” side has several features. .According to Dicey, it is not a principle that necessarily has universal application. It is founded in the “spirit” of the people, what we would call cultural and social foundations, that suit the community for the rule of law rather than arbitrary rule, such as the French <i>droit administrative</i>. Dicey made clear that the rule of law was characteristic England and its daughter polities, including the USA, and less so in other places.
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Dicey said that there were three concepts that defined the Rule of Law.
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(1) “…no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.” .In other words, the power of the state is not applied in an arbitrary fashion, but only according to published, known rules that the citizen can make himself aware of and comply with, and the process of making laws is public and open.
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(2) “…when we speak of the "rule of law" as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.” .In other words, there are no special courts or special privileges or special exemptions for the rich or the powerful. An aristocrat or a beggar who is convicted of murder is hanged just the same.
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(3) “…We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts …”.There is an independent judiciary, which is not subject to political control, with judges who apply the law in a consistent way to all the parties who appear before them. Also there are no secret tribunals or special courts that do not conduct their proceedings in the open and according to regular published rules. .This is a Weberian ideal type. The more closely a country approximates these features, the more it may be said to be ruled by law rather than arbitrary authority.
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There are other versions of the Rule of Law, but Dicey’s definition has the advantages of simplicity, clarity and historical rootedness. It provides an easy check list to compare against any concrete situation. .An exercise for the student is to consider how far we have moved away this ideal since 1915, when Dicey published the last edition of his book.
March 6th, 2010 at 7:52 pm
Ecch. The spacing didn’t work.
March 6th, 2010 at 8:25 pm
Fixed. Not sure why comments are going haywire today but it has happened multiple times
March 6th, 2010 at 9:36 pm
I fouled up the link. Maybe this will work.
<a href="http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=1714&Itemid=28">Introduction to the Study of the Law of the Constitution</a>.
March 6th, 2010 at 9:36 pm
Nope. Maybe this:
http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=1714&Itemid=28
March 7th, 2010 at 6:27 am
Good government never depends upon laws, but upon the personal qualities of those who govern. The machinery of government is always subordinate to the will of those who administer that machinery. The most important element of government, therefore, is the method of choosing leaders.
-Law and Governance
The Spacing Guild Manual
Children of Dune
March 10th, 2010 at 9:51 pm
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July 3rd, 2011 at 12:33 pm
Ya’ll need to go to the source of the term Rule of Law and quit making up all this stuff. It was coined first by Albert Venn Dicey. And oxford professor who went "liberalist" his is the original definition, and that definition was used to source Russian Governmental foremat after 1917 and on into WWII and to source the Facism of the WWII German Gov’t. In short, it is, and always has been, a definition for Communism. So all this RoL stuff won’t hunt at all. The definition has been taken. So generate a new "buzz phrase" to use in support of your much more sensible arguments. You can call a pile of dog mines anything you want, but it still came from the dog.
July 4th, 2011 at 9:43 am
"When Norman French-speaking King John of England bitterly complained at Runnymedethat the English barons might as well demand his crown, he was right"
Quick point, all those Barons were French speaking Normans, its not like King John was having the Law laided down by a bunch of limeys. The barons were translating there political culture (Duchy of Normandy) to the thorny problem of constraining a Kings power rather than a more manageable Duke, without a King of France(how ever theoretical his power was) to appeal to, the Barons developed a constitutional devise. I can’t believe you didnt mention code napoleon once in that post…