John Hasnas: The Myth of the Rule of Law

The Barrister over at Maggie's Farm posted this the other day. Hasnas holds a JD and a Ph.D. in philosophy. His law review article "The Myth of the Rule of Law" argues that:

... 1) there is no such thing as a government of law and not people, 2) the belief that there is serves to maintain public support for society's power structure, and 3) the establishment of a truly free society requires the abandonment of the myth of the rule of law.
This is something I've often thought about as I've reconsidered my political beliefs over the last 20 years or so. I tend to agree on the first point for simpler reasons than Hasnas gives: People always make and enforce the laws. It's just a matter of which people and how. On the other hand, the government of law is an ideal to strive for, and I believe in the value of striving for unattainable ideals.

I don't know about his conclusions. Maybe we can hash those out in the comments.


Grim said...

"Now, it is of great moment that well-drawn laws should themselves define all the points they possibly can and leave as few as may be to the decision of the judges; and this for several reasons. First, to find one man, or a few men, who are sensible persons and capable of legislating and administering justice is easier than to find a large number. Next, laws are made after long consideration, whereas decisions in the courts are given at short notice, which makes it hard for those who try the case to satisfy the claims of justice and expediency. The weightiest reason of all is that the decision of the lawgiver is not particular but prospective and general, whereas members of the assembly and the jury find it their duty to decide on definite cases brought before them. They will often have allowed themselves to be so much influenced by feelings of friendship or hatred or self-interest that they lose any clear vision of the truth and have their judgement obscured by considerations of personal pleasure or pain. In general, then, the judge should, we say, be allowed to decide as few things as possible. But questions as to whether something has happened or has not happened, will be or will not be, is or is not, must of necessity be left to the judge, since the lawgiver cannot foresee them."

Aristotle, Rhetoric 1.

What he's saying here seems like an incomplete counterbalance to argument in the paper. Of course, legislation can be equally an exercise in slanted favoring of group-interest. Then, the limits on the judge are not to the common good, but interfere with the judge's capacity to resist the legislature's corrupt intent.

Assistant Village Idiot said...

I liked the article over there, and sent it to attorney friends for their opinions. I think there is more to be said.

Ymarsakar said...

Humans have been under the rule of the heavenly princes, the elohim, since Babel. Specifically all the goyim are under 70 Watcher class elohim, and still are.

Each nation has its own spiritual prince and protector. Humans can draw up the borders all they want and create as many laws as they wish, none of which supersede the laws of their betters.

Human laws are to divine laws as city laws are to federal laws.

The Watcher class elohim, most of the 70 rebellious by now, are the state laws, sovereigns until a certain meridian of time passes. Right now their power has been diminishing, but it is by far still existant.

The War of the Gods is not quite over, and humanity is still very much the slaves of one Watcher or another. They have a get out of jail free card, but apparently people think the offer is a Nigerian scam. Certainly there are scam duplications of it.

Ymarsakar said...

“Well then, tradition tells us how blissful was the life of men in that age, furnished with everything in abundance and of spontaneous growth and the cause thereof is said to have been this. [so why is everything working so great? why is everything in this beautiful cosmic order? he gives you the reason, he says] Kronos [high god of time] was aware of the fact that no human being as we've explained is capable of having irresponsible control of all human affairs without becoming filled with pride in injustice. So pondering his fact he then appointed as kings and rulers for our cities not men but beings of a race that was nobler and more divine, namely demons. He acted as we now do in the case of sheep and herds of tame animals. We do not set oxens as rulers over oxen or goats over goats, but we who are of a nobler race ourselves rule over them. In like manner, the God in his love for humanity set over us at that time the nobler race of demons, who with much comfort to themselves and much to us took charge of us and furnished peace for us, and modesty, and orderliness and justice without stent, and thus made the tribes of men free from feud and happy.”-Plato's Laws

Modern humans have corrupted and retroactively reinterpreted many of the ancient author's meanings.