The Rule of Law
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When we speak of infrastructure we usually mean material goods, such as roads, electrical-distribution grids, aqueducts, and the like. But the law is also a part of a societyís infrastructure, albeit a more intangible one. Like the other parts, it enables people to do what they otherwise be unable to do. It provides a social good; as the aqueduct provides fresh water to all the people, so the law provides reliability to all the people.
If we define civilization as an entity that can make promises and then fulfill them, then the rule of law is a sine qua non of civilization. If we recognize reliability as the source of social stability and growth, then we must also recognize the rule of law as the guarantor of that reliability. That recognition enables us to understand why the Constitution prohibits any ex post facto laws.
Through most of history the laws governing a society were whatever the king or the high priest said they were. Those laws could be changed on a whim and exceptions granted to those favored by the king or the high priest. But as people became increasingly literate and better educated they began to yearn for a system of law that was fair, that applied equally to everyone, even the king and the high priest. They began to dream of a day when the rule of kings was replaced by the rule of law.
We can refer to the Magna Carta as the beginning of the rule of law in the English-speaking world. Article 39 of the Magna Carta expresses the basic idea of the rule of law:
"39. NO Freeman shall be taken or imprisoned, or be disseised [deprived of land or chattel] of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right."
From this little shack of legality the lawgivers of the English-speaking world have built a magnificent structure known as The Law. The fundamental principle behind it is the rule of law. Like any other structure, the rule of law needs a strong foundation, one that can bear the weight that we may put upon it. That foundation appears, boldfaced and underlined below, explicitly in the opening statement of the Declaration of Independence:
"When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they 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. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. --Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world."
The theory behind the concept of the consent of the governed presumes that men will always disagree about the definition of good and evil, and disagree so violently at times, that the only way they can pursue their conflicting goals and survive is to cede all of their power to the state and submit to the state without protest or challenge. Thomas Hobbes of Malmesbury (1588 Apr 05 Ė 1679 Dec 04) presented that doctrine in his 1651 book Leviathan, in which he established the foundation for most of Western political philosophy from the perspective of the social contract.
Hobbes developed some of the fundamentals of European liberal thought: the rights of the individual; the natural equality of all men before the law; the artificial character of the political order (which led to the later distinction between civil society and the state); the view that all legitimate political power must be "representative" and based on the consent of the people; and a liberal interpretation of law which leaves people free to do whatever the law does not explicitly forbid.
Hobbes wrote Leviathan during the English Civil War; much of the book is occupied with a demonstration of the necessity of a strong central authority to avoid the evil of discord and civil war. Government exists, in the Hobbesian view, to do what individuals and groups cannot or should not do for themselves.
Hobbes began with a mechanistic understanding of human beings as consisting of arrays of matter in motion and obeying the same physical laws that control other arrays of matter in motion. Essentially Hobbes asserted that humans differ little from other animals. In the state of nature, then, in which government does not exist, each person would believe that they have the right to anything and everything in their world. That belief, unrestrained by government, would lead to a "war of all against all" (in less violent form it leads to the tragedy of the commons). Hobbes described the consequences of such a war:
"In such condition, there is no place for industry; because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving, and removing, such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short."
ó "Chapter XIII.: Of the Natural Condition of Mankind As Concerning Their Felicity, and Misery.", Leviathan
In order to avoid that condition people, in accordance with what we call enlightened self-interest, accede to a social contract and establish a civil society. That society consists of a population under the power of a sovereign authority; for the sake of protection from the abuses of the state of nature all individuals in that society must cede some of their rights to the sovereign. Because Hobbes did not conceive the idea of the separation of powers, his sovereign controls the civil, military, judicial, and ecclesiastical powers of the state. As a consequence people must, as the price of social peace, accept any abuses of power committed by the sovereign. The Founders of the American Republic disagreed with that latter idea, as they made clear in the Declaration of Independence.
Now we have the engineering challenge: How do we construct a society in which the rule of law is maintained in conformity with the consent of the governed? To answer that question we need to ask how that society can go wrong. And how do we ensure that it does not go wrong? In the United States of America the key words in the solution are separation of powers, which we also call checks and balances.
To ensure the primacy of the rule of law, some people must be organized to wield the coercive power of the state. To ensure that those people uphold the law, they must pledge their loyalty to the law, through an oath to a document (the Constitution) or their society (the Pledge of Allegiance), rather than to a person (as in dictatorships). Of course, an oath wonít stop a person of evil intent, but if such a person does anything to betray disloyalty to the law, they put themselves in jeopardy of censure, punishment, and dismissal from the privileges of law enforcement. But what happens when something goes very wrong?
Imagine a malevolent and unresponsive bureaucracy, convinced of its own benevolence, even if only through the perverse lens of Social Darwinism. We have an entity against which there is no appeal and from which there is no escape; thus, we have the closed society. The characteristics of a closed society include absolute powers claimed by authorities and the effort to silence critics rather than engage them.
Consider this example, Military Guidelines for the Press, from Occupied Norway in WWII:
1. The German nation is best suited to be the leading power of the world and Germany will win the war because of her cultural and material superiority over other nations.
2. Hitlerís and the German Nazi Partyís view of right and wrong is the only correct view and according to it:
3. The noble Germanic race should be cultivated while the other, inferior races should yield to the guidance of the master race; therefore:
4. The erroneous principle of democracy should be destroyed.
We certainly saw how correct the Nazi view of right and wrong was. Now the experience with Naziism serves as a cautionary tale for Western Civilization. We also saw what can happen to a closed society. And we see the steps that people of evil intent took to eliminate the best means available for the continual renewal of the consent of the governed. People embody that best means in an open society.
The open society is based on the fact of human fallibility. Nobody is ever always right; thereís no such thing as an infallible human. Thus we need an open society, one in which any proposition can be freely and peacefully discussed, challenged, and debated. Any regime that claims to possess absolute, unchallengeable truth makes an empirically false claim and can only sustain that claim by suppressing dissent. So how can we keep a society open and prevent people of evil intent, like Hitler and his Nazis, from closing it?
The best way to keep a society open consists of applying to political power the principle of rock-paper-scissors. Simply put, we have an electorate (the voters) that decides who will constitute the government; the government decides who will enforce the law; and the latter group ensures that the members of the electorate conform their behavior to the requirements of the law. Of course, such a simplistic statement may put us in mind of a description of a steam locomotive as consisting of a boiler to produce pressurized steam, cylinders to convert steam pressure into reciprocating motion, and drive rods to convert reciprocation motion into the circular motion of the wheels. Simple in concept, the actual machine is considerably more complicated.
Constructing a machine that performs its planned function smoothly and efficiently goes beyond laying out the design of the mechanism. The parts of the machine must conform to certain specifications. In a political machine the parts are people. So what must we require of those people?
We take this truth to be self-evident; that insofar as possible all people should have as much say as is feasible over the direction their lives will take. I certainly accept that truth for myself, so if I want to deny it for others, I must give a compelling reason for that denial. Otherwise, all people must enjoy the same freedom. That freedom has material prerequisites and a decent society ensures their proper fulfillment. The freedom to live your life on terms you establish means very little if society is so organized as to deny to any large number of people access to the means of realizing that objective.
We take the approach that the individual person is an achievement, not a given. That fact obliges us, if we are not malign, to establish institutions that remove abuses and oppressions and also to create favorable institutions that provide the necessary support in law, politics, education, and economics.
Thus we must have an egalitarianism that is consistent with liberty. In every society each social good has a distinct meaning, which tells us who is entitled to it. Medical care should go to the ill and injured, places in medical school to those most able and eager to heal, etc. Though a certain transfer of money is necessary, these social goods should not be merely bought and sold; they must be earned in some other way or deserved without being earned. This insight leads to a theory of distributive justice.
Of course, the rule of law cannot operate alone and produce a good and decent society. It must be augmented by the reign of custom informed by a vision of what constitutes a good and decent society. We thus have two different and complementary approaches:
We have Legalism, which stresses trust in the rule of law, using a balance of reward and punishment to achieve its ends. It seeks conformity from people rather than harmony.
And we have a kind of neo-Confucianism, which trusts in the essential goodness of people, using moral suasion to achieve its ends. It seeks harmony from people rather than conformity.
Thus, we see, the rule of law gives us a solid foundation upon which we can build and evolve a modern civilization. Weíre still tweaking the design, of course, and we have a long way to go. But we will eventually have a civilization suitable for a species that intends to spread itself throughout the galaxy.
Claude Levi-Strauss noted that Native Americans would find modern prison practices mystifying. Our practice of separating lawbreakers from society and attempting to reform them by destroying their social ties would make no sense to them. The Plains tribes more effectively rehabilitated criminals by temporarily denying them their possessions and/or living quarters, thereby putting them into a tightly bound reciprocal relationship with their society. The criminal would then perform a kind of community service until the community had incurred a debt to him and was therefore obliged to restore him to his place in society. This, of course, works in a community in which all the people know each other.
In larger, more impersonal communities such methods donít work, certainly not with the worst of criminals. As hamlets grew into villages, towns, and cities, people had to find alternative ways to discourage crime. In past centuries criminals were subjected to hideous atrocities, not only as punishment but also as a warning to others. Only with the coming of the Enlightenment in the Eighteenth Century did civilized people begin to conceive the idea of rehabilitation in penitentiaries. Kept in prisons for varying lengths of time, criminals could be transformed into law-abiding citizens by whatever means seemed to work best.
But note the paradox of prison. One of the requirements of parole is that the parolee not associate with other criminals, yet in prison they are compelled to just such an association. Further, the use of solitary confinement promotes the growth of insanity, but it is necessary to protect guards and other inmates. Unfortunately, at our current level of technological development we have no good alternatives, certain not for dealing with the worst of criminals. But in a few decades robots will have achieved a level of sophistication that with change that fact radically.
In a robotic society convicted criminals can be left in open society under the direct supervision of robots, even being connected to a robot by a cable if necessary. When a robot can outrun, outsmart, and overpower even the best that Humanity has to offer, then robots will serve us as the perfect guards. We can even conceive the use of a radio-controlled exoskeleton that the convict wears and through which his robot minder can control his movements if necessary. Thus we can return to a system that seems to have worked very well for the Native Americans.
Appendix: The Tragedy of The Commons
The rule of law and the dependability that comes with it do not necessarily yield a good result. Consider the question of who owns the land. Throughout History groups of people have owned and exploited certain tracts of land in common. But when everyone owns something, no one owns it and that paradoxical situation can lead to the tragedy of the commons.
The 1968 essay, "The Tragedy of the Commons" by wildlife biologist Garrett Hardin described a hypothetical common pasture. Because no one owns it, no one has any incentive to care for it, so people will graze as many cattle as possible until the land turns barren. But many societies do maintain a commons, some for centuries, through various social pressures. Hardinís tragedy comes from a lack of commons management, not from the idea of the commons itself.
The tragedy occurs in any economic system that promotes greed. In the Mediaeval Age people worked their commons under the guidance of the Church and all prospered. But then the feudal lords began to privatize forests and grazing lands. They began a process of deforesting England, which process created the conditions that drove so many people to come to North America to start the process over again.
William Blackstone, in his "Commentary on the Laws of England", tells us that nothing "so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe." But, he adds, there is "no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude his fellow creatures from a determinate spot of ground, because his father had done so, before him." The right of property can only exist under the rule of law.
But the right of property is not absolute. One does not, for example, have the right to move into a neighborhood and then inflict a nuisance upon the neighbors. Again this expresses the idea that reliability underlies the concept of the rule of law. That same idea also gives us the necessary exception, what the law calls "coming to the nuisance". If one moves next to a pre-existing pig farm, they have forfeited their right to complain of the smell and the noise. The notion of reliability protects the farmer in such a case.
The right to property is often presented as the best way to prevent the tragedy of the commons. When a person owns a productive entity, that person is likely to care for that entity and not over-exploit it. In the absence of ownership, the rule of law can fulfill the function of a caring owner.
We can see an application of that latter idea when we examine the tragedy of the commons acted out on a planetary scale. Overactive fishermen using modern technology have driven a number of species of fish to the brink of extinction. The world response to that situation is to establish the rule of law over international waters, not through the United Nations (the Articles of Confederation of world government), but through treaties negotiated among the nations that will be affected by the extinction of the fish. Itís still a form of the rule of law and it seems to work.
Of course, we will see the tragedy of the commons acted out as we spread ourselves into space. There, too, we will need to establish the rule of law. The United Nations has already taken the first tiny steps in that direction and eventually a true Government of Humanity will have to take over the task and give a system of laws suitable for a galactic civilization.
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