One of the points of unity among you in our recent debate about Dr. Cronon was the importance of the concept of "the rule of law." I want to set aside the particulars of that case entirely, and discuss the idea of "the rule of law" independently. This is an idea that has always struck me something other than an unalloyed good (to use Cassandra's phrase). I want to offer some objections to the idea of adopting it as a principle for ourselves.
Before I do, I want to recognize that I understand why so many people have adopted "the rule of law" as a principle. The principle is laid out so beautifully in A Man for All Seasons:
The principle as Sir Thomas More lays it out is exactly correct, and I don't dispute it at all.
To understand how I can dispute the principle and not Sir Thomas More, it is necessary to recognize the distinction between the People and the state; and that Sir Thomas More was speaking as an agent of the state. The argument that an officer of the state should 'give the Devil the benefit of the law' is an argument about the state recognizing legal limits to its power. Just as the play says, if we accept the state setting aside the lawful limits of its power to deal with evildoers, we will soon find it accepts no limits when it deals with anyone else.
The "we" who are accepting or rejecting the state's powers here are "We, the People." The distinction between the People and the State is that the People are those who retain the power described in the Declaration of Independence:
[T]hey are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."The rule of law" is therefore not a principle for the People to accept as a first principle. They are the judges of whether "the rule of law" has become destructive to "life, liberty, and the pursuit of happiness." Their first principles must be these three things.
The rule of law is a means to that end; when it becomes destructive to those ends, the law must be set aside in spite of itself.
If the law is unjust, "the rule of law" means the rule of injustice. Before we the People speak of 'giving the Devil the benefit of the law,' we must not forget that the Devil often has the best lobbyists. We should not commit to a moral principle that commits us to pursuing injustice on those occasions when the wicked have captured the law.
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There is a second argument that applies even when the law is not unjust; even when it may be perfectly just.
The law is an exercise of the power of the state, and the power of the state is coercive -- it is based on violence, that is, even when an individual instance is not violent. Every act of "law enforcement" is an act of coercion.
Many times in life we find ourselves in disputes with others, and we could rely on rules and force to push people to accept our way. We might also be able to sit down, talk things through, and achieve a compromise position that everyone can live with. The second approach means that we do not get exactly what we wanted, but we do get a society that is more pleasant to live in. Very often, this second approach is the foundation of friendships and good relations with neighbors.
This is why we respect the old breed of "peace officers" more than the sort who consider themselves "law enforcement officers." A peace officer is preserving the order of society, but this often means letting certain things slide if an agreement can be reached between the parties in dispute. The law here is a tool, certainly, but he does not stand on 'the rule of law.' He mentions the law, and then talks people into sorting out their problems so that no one has to go to jail. The "law enforcement officer" is a tool of state coercion with his every act; the "peace officer" often is able to preserve the peace and common order through agreement.
The fact that the law permits us to do something is almost irrelevant to the moral question of whether or not we should do it. If the law forbids something, that fact is relevant to our moral calculations because breaking the law is a serious act, to be done only in cases of the type discussed in the first section. There are some laws we must morally break; the rest we must not break.
Once we have determined that the law permits something, however, the law is finished informing our moral decision. We have to make the choice of whether to do what the law permits us to do, or to refrain from doing it, on other grounds.
Like the peace officer, we often have powers we choose not to use. We often don't use our legal freedom to spend all our money on booze and gambling. We often have disputes with neighbors that we settle out of court. We often don't arrange protests just-this-side of our neighbor's property.
We often treat people better than we must, and that is a very good thing. The more a society relies upon the law to settle its disputes, the less stable that society is. That is to say that the more the People turn to the state to resolve their disputes, the more of their power they are ceding to the state.
A society that resolves its disputes according to the law instead of socially has given all its power to the state, and is at the mercy of the state. Do you wish to be at the mercy of ours? Do you trust our politicians to 'give the Devil the benefit of the law', or would you rather have the hedge of your neighbors just in case? You will have it only if you extend it to them as well.
It may be the case that our society has grown so unstable that we are running out of options. While last chances exist, to extend hands and rebuild some of the social power that guards us against exposure to state power, I think we ought to try. Certainly when we are dealing with thugs on the other side, or on our own, we should do nothing for them; but when we are dealing with ordinary and decent people, it is in all of our interests to try.
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