Rule of Law

The Professor sent me an article for my perusal from one of his favorite blogs. The article’s titled The Rule of Law. It’s not an informational article as much as it’s a rant by the author. Since it’s a conservative website, you can assume my overall comment is something along the lines of *bleh*, but there are a couple of specific points I think I need to make.

First, I should start by noting that the United States is generally considered to be a common law country. By definition, common law is considered to be law made by judges. Now I’d argue that the U.S. is more like a composite of common and civil law systems. Common law originated as a law made almost entirely by judges in England. That’s how it came to the U.S. The continental European countries, OTOH, have a civil law system where every law is written down in a code, with the idea being there is no need for a judge to interpret anything – it’s all right there. The current set of U.S. laws has most of the laws written down in Federal or State codes. But our common law system is designed for judges to interpret areas that are not specified in the code (consistent with constitutional principles). This means they make law. So when the author says (in his rant of a 3rd paragraph) that judges are “more interested in making law than applying it” he shows that he really doesn’t understand what he’s talking about. All appellate judges in the United States, right- or left-leaning make law.

Second, I want to quibble a little with the author’s use of the term “rule of law.” Now, maybe he intended to use the term in some sort of contrary way, because he’s being clever. But I suspect not. I think he’s got the idea of the rule of law wrong. He says, “The Rule of Law protects against man’s tendency to bask in the light of his own shining intellect…” And some stuff about individuals having decision making powers greater than the voters. All as a nice lead in to his rant about judges making law (see above). But “rule of law” is an idea that protects individuals against the system, against big government or despots. That’s why rule of law in the U.S. and other western or civilized countries is a big part of what sets us apart from countries in like Iran, China, North Korea or other despotic regimes. The Rule of Law says that a person facing the might of the criminal justice system in the U.S. is much more likely to get a fair shake from the judge and jury than is a similarly situated person in Uganda. The Rule of Law is not the gobbledygook spouted by this guy. Believing in the idea and ideal of fairness and equality before the law is as close as I come to having a religion, so maybe that makes this guy the equivalent in my world to a blasphemer?

Finally, this post reads very similar to rhetoric in other areas where I find I have discussions with conservatives. It follows a similar pattern. The area being discussed is, say, health care reform. The Liberals don’t mind more government involvement and would like to see Universal health care. Conservatives want to keep the government out of everything possible, so prefer a market driven system with as little social safety net as possible. Yet the rhetoric from conservatives in this area quickly devolves to something more like, Obama is trying to implement his Obamacare because he wants the country to fail. He is intentionally trying to undermine the country with his policies (then maybe throw in a comment about 2nd Amendment remedies). The discussion seemingly can’t stay on the policy issues, but just goes right down to the intent of those on the Left. Many on the Right have a hard time differentiating between “I really disagree with your policies. If those policies are implemented, it will ruin our country” and “I really disagree with you policies. Since I think your policies will ruin the country, you must be trying on purpose to ruin the country. You can’t possibly believe that your policies will make the country a better place.”

So that brings me to the author’s use of this rhetorical device. Rather than acknowledge that there are two schools of thought that say either interpret the Constitution strictly or the Constitution is a living document which is interpreted over time, the author acknowledges only the former of the schools and says of those who believe the latter that they are taking their time on the bench “as their big opportunity to do as they please, to reshape the world the way they see fit.” Functionally equivalent to the “you’re trying to ruin the country” frame in the health care debate.

Thanks for the link Professor, but for all of the above reasons, I can’t take this guy as a serious commenter on Rule of Law.

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