The Myth of the Rule of Law (1995)

> Unless your responses were: 1) False, 2) True, 3) True, 4) False, 5) True, 6) True, and 7) True, you chose to interpret at least one of the words "Congress," "no," "law," "speech," and "press" in what can only be described as something other than its ordinary sense. Why did you do this? Were your responses based on the "plain meaning" of the words or on certain normative beliefs you hold about the extent to which the federal government should be allowed to interfere with citizens' expressive activities? Were your responses objective and neutral or were they influenced by your "politics"?

These days you read a lot of comments about courts "ignoring the Constitution." I don't imagine those same people were upset when the Supreme Court "ignored" the word "speech" in striking down restrictions on video game sales, or conjured up a "right to privacy" that it could not place anywhere within the text of the Constitution.

That said, law being political does not mean that adherence to rules is unimportant. The "rule of law" means that people are willing to abide by legal decisions. That willingness depends on judges at least justifying their decisions in terms of broadly-accepted rules.

What these anarchist arguments come down to is saying that profoundly non-utilitarian arrangements that have repeatedly shown to be rife with human suffering are superior to stable first world societies due to adherence to some hokum about liberty being the most important thing.

The article is well worth reading. It makes some truly provocative points, but in real life we have to choose between unpleasant options, not an unattainable theoretical place and unpleasant options.

Point 1 is true. And yet, societies that have the "rule of law" function differently[1] than those that don't, and that difference is very beneficial to the people living in that society.

[1] Not completely differently, but still substantially differently - differently enough to matter a great deal.

The world is too complex for simple rules, honourable though their intentions may be, and older attempts at this are guiltier than modern ones. The steadfastness to which America cleaves to an 18th century charter has posed significant roadblocks to establishing effective policy in the 21st century. While very readable, the Constitution is frustratingly unspecific. An enormous effort is spent in "interpreting" it in a way that can support policy, in the same way that the Bible or Koran is bent to suit the individual ideologies of their adherents.

With the right to bear arms, all that can really be agreed upon is that "arms" is something more than a butter knife and something less than nuclear ordinance. Free speech shall be guaranteed, except when it comes to advertising speech, fighting words, death threats and the list goes on. In these debates, the opinions of the framers should be only slightly more relevant than those of Plato, Hume or Rousseau, and what should dominate the debate is the actual consequences of the policy in question. What's more, the absence of certain rights in the constitution has hindered recognition of the right to shelter, or safety, for example.

When Ruth Ginsberg was asked to recommend new founding policy for a revolutionary Egypt she said this:

"I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. … It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution."

http://abcnews.go.com/blogs/politics/2012/02/ginsburg-likes-...

As for this doublethink, I personally don't hear many strongly held generalizations about how the legal system works "under the hood". When I do, the word is either that it's utterly mysterious, or that lawyers don't do much of anything at all. Not that they do so with any particular rigor.

Perhaps among academics it's different. The folks I hear and read mostly just complain about cost and poor communication.

And the same could be said of auto mechanics. And programmers. Crises?

The western society isn’t stratified that much, almost no one thinks it’s OK to kill people regardless of how many stars are on the killer’s epaulets. However, there are still many cases with great asymmetry between two dealing parties. Like when you buy electricity for your home. Don’t you think your electricity supplier would love to add “no disputes are allowed, I’m the final authority” to your contract, if they could? If you don’t like that contract, they don’t care — you only bring 0.00001% of their income, however they bring you 100% of your electricity, and in many places you don’t even have much choice.

Why should it? There's no law that says rigid absolutes can't come from chaos. Look at quantum mechanics: a bunch of seemingly random nanoscopic reactions come together to form an elegant predictable macroscopic world. And why can't it be neutral? If the Wisdom of the Crowd theory holds any weight (hint: it does) the misconceptions and biases of a large group of people should cancel out leaving us with the correct, or in this case most neutral, answer.

Now, of course, there's no denying law is highly political for reasons that extend beyond Congress being highly political. That said, this is understood by most people. Did you know TRAP laws aren't actually designed to mark abortion clinics safer but to make abortions more difficult? So did everyone else that follows the issue!

I saw this article back in 2011. I wanted to re-read it a couple of years ago, but couldn't find it.

Thank you, HN!

I could not take this article seriously because it tries to understand rule of law by actually examining law, rather than by examining law's place in society. Rule of law is an appellation given by historians to describe a society, not a specific legal concept.

Whatever ideological construct we want to order society by, a part of that society has to be dedicated to actually enforcing that construct. Medieval England had an innovative institution dedicated towards adjudicating disputes that came to be known as common law. Local magistrates collaborated to create a body of judicial decisions and understandings that other magistrates would respect.

This freed law from the vagaries of local and national politics. The norm in the rest of the world was that both judges and the law were the sole domain of the monarch. The monarch picked the judges and the laws and that was that. What allowed English crowdsourced jurisprudence to flourish was that it was protected by England's other major innovation, Parliament. Parliament held the purse strings of the national budget, and the king had to ask Parliament for money whenever it needed to do things like raise an army. Without Parliament's approval, the king was limited to using his own land holdings to finance his affairs. In most of continental Europe, the king was free to tax the citizenry directly using the army to enforce collection.

What allowed England to do this was its relative isolation from the rest of Europe, this allowed England enough safety and security to not need a standing, national army. Instead England was free to iterate on this body of law and produce a diverse array of commercial contracts that allowed people to collaborate on business ventures on a scale the world had never seen before.

It also allowed England to, eventually, displace the monarchy as the ultimate seat of power in their society, replacing that role with the Prime Minister, who had to rise through the political ranks to his office. Continental Europe needed their monarchs to pursue national defense, as every European nation was at constant risk of invasion. Failure to do so resulted in getting conquered, as Spain was throughout much of the Middle Ages. Civic institutions never achieved the democratic buy-in that they did in England.

I have written before that rule of law, as we consider it, is a uniquely Anglo institution, the British exported their legal innovations everywhere they went. Not having to worry too hard at appeasing their kings gave British citizens unprecedented ability to contribute to local government. Government itself was viewed as just another type of legal organization, when establishing a colony, there was a well-trodden map to governance that was established by Parliament and slowly perfected over the course of the colonial period.

It is this series of innovations in the role of government in society over the course of history that provide Anglo nations with rule of law. The term was never intended to carry the connotations I often see people ascribe to it. It is not a property of law, but a property of the society using law. I see it as having been baked into the very fabric of Anglo society. I do not take seriously falling-sky pronouncements that the rule of law is under attack by whatever nefarious political actor. Certainly, we are running hard into the limitations of our legal institutions, but that's a product of their continued success. It's a resource allocation problem, not one of defense from attacks without or within. Eventually the institutions will evolve to meet those needs.