Tuesday, May 16, 2006

Rule of Law vs. Arbitrary Command

Lawrence Tribe describes how the Bush administration is stomping on the Fourth Amendment in the Boston Globe.

Tribe's editorial is excellent, but let me add to it what is meant by "The Rule of Law." From Perspectives we get this explanation:
"The difference between "rule by law" and "rule of law" is important. Under the rule "by" law, law is an instrument of the government, and the government is above the law. In contrast, under the rule "of" law, no one is above the law, not even the government. The core of "rule of law" is an autonomous legal order. Under rule of law, the authority of law does not depend so much on law's instrumental capabilities, but on its degree of autonomy, that is, the degree to which law is distinct and separate from other normative structures such as politics and religion.

As an autonomous legal order, rule of law has at least three meanings. First, rule of law is a regulator of government power. Second, rule of law means equality before law. Third, rule of law means procedural and formal justice. We will take up these meanings of rule of law one by one.

First, as a power regulator, rule of law has two functions: it limits government arbitrariness and power abuse, and it makes the government more rational and its policies more intelligent.

The opposite of rule of law is rule of person. There are two kinds of rule of person. The first kind is "rule of the few persons," examples of which include tyranny and oligarchy. The second kind of rule of person is "rule of the many persons," an example of which is the ancient Greek democracies. The common feature of rule of person is the ethos that "what pleases the ruler(s) is law." That is, under rule of person, there is no limit to what the rulers (the government) can do and how they do things.

In contrast, a key aspect of rule of law is "limitation;" i.e., rule of law puts limits on the discretionary power of the government, including the power to changes laws. This is why the western juridical tradition is Roman, not Greek. One of the major problems of ancient Greek democracy is that its conception of law does not contain the idea of limitation. The Greek word "eleutheria," commonly translated as "freedom," connotes a freedom that extends into the principle that what pleases the people is law. In other words, there were no limits to the (democratic) governments of ancient Greece, and the popular will, be it short-term passion or long-term rationality, would always become law if the demos so wished. "As soon as law lost its sacred character, popular sovereignty was placed above the law, and, by that very act, government by laws was once again fused and confused with government by men" (Sartori, 1987, p. 307).

Unlike the Greek system, the Roman system of law limited the ability of the rulers to change laws, and it greatly influenced the Anglo-Saxon version of rule of law. At the core of the Anglo-Saxon conception of rule of law is the idea that the discretionary power of the government should be limited. "[W]henever there is discretion there is room for arbitrariness, and . . . in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects" (Dicey, 1982, p. 110). The solution to this problem, say liberal democrats, is rule of law."
The definition I have seen and really like is that the Rule of Law means that the government provides administrative certainty. In a given situation, the law is superior to the arbitrary decisions of administrators and the law states what actions the government can and will (or will not) take. It is extremely important for the government to be restricted and bound by law as well as individuals. That is an essential element of the rule of law.

The rule of law means that a person can buy a truck and begin a trucking business without fear that the government will arbitrarily decide it needs his truck for government purposes and confiscate it. Such certainty is not the case in many nations even today and the result is that if you have the money to buy a truck, you instead hide the money from the government where it cannot be taken. You don't buy the truck because a working truck cannot be hidden. The economy suffers from this.

Administrative certainty also means that if you decide to rob a store, then you know in advance that the police will attempt to stop you and will work to find and punish you. The risk and reward calculus is presented in advance.

The rule of law does not work if there is a government administrator who can arbitrarily decide you are doing something he disapproves of and shuts you down, or decides to impress you and force you to work for the government outside of legal rules which are predictable (see Draft Laws.)

The key is that everyone gets to make decisions with foreknowledge of what action can be expected from government because the government is bound by law, the law is published and public, and the methods of establishing and changing law are known and are also public.

This also requires an independent judiciary which is responsible for enforcing the law on both the government and on the public. Without public access to such an independent judiciary, the government is under no real constraint to apply the law.

More from Perspectives:
"...how is government arbitrariness constrained? The answer lies in several important principles of rule of law. First, if we are to limit government caprice, rule of law requires the supremacy of law as opposed to the supremacy of the government or any political party. [See the reference to an independent judiciary above] To the noted English jurist A. V. Dicey rule of law means, "in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government" (Dicey, 1982, p. 120).

Second, if the government is to be restricted in its exercise of discretion, the government has to follow legal procedures that are pre-fixed and pre-announced. As F. A. Hayek puts it, rule of law "means that a government in all its actions is bound by rules fixed and announced beforehand -- rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one's individual affairs on the basis of this knowledge" (Hayek, 1994, p.80). For example, in constitutional and criminal law, there is a prohibition on "ex post facto" laws, that is, no one should be punished for a crime not previously defined in law"

"The third meaning of rule of law is formal or procedural justice. What is formal or procedural justice? Before we answer this question, we need to answer a more preliminary question: what is formalism? Max Weber categorizes legal systems into four kinds: formally irrational, substantively irrational, formally rational, and substantively rational. Rationality refers to the generality and universality of law. Formality refers to the characteristic that the criteria of lawmaking and lawfinding are intrinsic to the legal system itself; that is, all rules, procedures and decisions can be deduced from the legal system itself. In contrast, a legal system that emphasizes substantive qualities of lawmaking and lawfinding uses factors outside law, such as ethical, emotional, religious or political factors, to evaluate cases. To Weber, only a formally rational legal system can achieve "legal domination" (rule of law) through consistent application of general rules, because only a formally rational legal system can maintain a "consistent system of abstract rules" that is necessary for rule of law.

A formally rational legal system, according to the western legal tradition, also results in justice that we desire. This kind of justice is called formal or procedural justice, which "connotes the method of achieving justice by consistently applying rules and procedures that shape the institutional order of a legal system" (Shen, 2000, p. 31). More specifically, formal or procedural justice consists of several principles. First, the legal system must have a complete set of decisional and procedural rules that are fair. Second, the fair rules of decision and procedure must also be pre-fixed and pre-announced. Third, these decisional and procedural rules must be transparently applied. Fourth, these decisional and procedural rules must be consistently applied. When these four conditions are satisfied, western judges and lawyers will say that they have achieved a certain kind of justice, which is called formal or procedural justice. Note that this notion of justice is more concerned with process and procedure than with the end result. As Selznick puts it, "legality has to do mainly with how policies and rules are made and applied rather than with their contents" (Selznick, 1969, as cited in Shen, 2000, p. 30). In other words, as long as the process is fair, transparent and consistent, justice is obtained and legality is achieved."
This is a description of the Rule of Law. It is complicated and has a lot of unanticipated problems (which social scientists studying things call interactions) built in to it. But the Rule of Law is at the core of what makes America great, both as a wealthy nation and as a land of Freedom.

The Rule of Law is also what the Bush administration demands we abandon because there are Terrorists out there who hate our Freedom. Or something like that. So in order to fight against those terrorists, Bush demands that we give up the Rule of Law and turn government over to his arbitrary decrees.

Notice that his decrees are all implemented secretly. In place of the Rule of Law he demands that we allow him to rule arbitrarily. Is the process of declaring someone an Enemy Combatant fair, transparent and consistent? The fact is, it is not consistent nor is it transparent. Whether is is fair or not can only be determined by an independent court - but enemy combatants have to have the right to access the courts. So "Fair" is also down the drain.

America has reached a decision-point. We have the choice of whether we want the arbitrary Bush government or we want a government that is run under the Rule of Law. We cannot have both.

Reference to the Perspectives article:
1. Dicey, A. V. Introduction to the Study of the Law of the Constitution. Indianapolis: Liberty Fund, 1982.

2. Hayek, Friedrich. The Road to Serfdom. Chicago: University of Chicago Press, 1994.

3. Holmes, Stephen. Passions and Constraint: On the Theory of Liberal Democracy. Chicago: University of Chicago Press, 1995.

4. Sartori, Giovanni. The Theory of Democracy Revisited. Chatham, New Jersey: Chatham House, 1987.

5. Schauer, Frederick. "Formalism." Yale Law Journal 97 (1988): 509-548.

6. Selznick, P. Law, Society and Industrial Justice. New York: Russell Sage Foundation, 1969.

7. Shen, Yuanyuan. "Conceptions and Receptions of Legality: Understanding the Complexity of the Law Reform in China." In The Limits of the Rule of Law in China, ed. Karen G. Turner, James V. Feinerman and R. Kent Guy. Seattle: University of Washington Press, 2000.

8. Weber, Max. Economy and Society, ed. G. Roth and R. Wittich. Berkeley: University of California Press, 1978.

Locke's Second Treatise on GovernmentThis is the source document on what the Rule of Law means.

For another view, see Competing definitions of Rule of Law (the second part is about how to use the Rule of Law in economic development and is not needed here.) This is the short summary of the first part.
"the rule of law is not a single, unified good but is composed of five separate, socially desirable goods, or ends:
  1. a government bound by law,
  2. equality before the law,
  3. law and order,
  4. predictable and efficient rulings, and
  5. human rights.
These ends are distinct, likely to meet different types of support and resistance within countries undergoing reform, and often in tension with one another in practice."

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