If Law is King, its Subjects are Failures
If there is one thing government officials, legal professionals, and scholars share, it is a belief in the rule of law and its importance to stable, functioning society. The rule of law is a foundational tenet of American government. The rule of law means that the law itself is supreme, and that no individual is above the law. Those looking to advise and guide struggling and developing countries emphasize the necessity of rule of law principles for success.
It is almost certain that a rule of law regime is the best structure for a stable democracy, and its absence likely will lead to unworkable mayhem. It is right to consider installation of rule of law principles an achievement, but it is also right to desire more. Rule of law is the good (the best, perhaps), but not the perfect, and we should be wary of celebrating law to the point of glorification.
Nearly one year ago, the American Bar Association asked its online readers, “What’s Your Favorite Law and Why?” The responses were full of obscure, humorous, arcane, rigorous, moral, and other laws. One commenter took a different tack:
The answer to the question, “what is your favorite law,” for me must be “no law.” I am no anarchist, but that doesn’t mean I like any of the laws that are on the books. (Commenters have addressed structural and procedural “laws,” but these are not really laws so much as they are rules for order and operation.) Each law enacted by Congress and by State and local legislative bodies represents a response to behavior on the part of the governed unacceptable to the collective whole. Are we so base and immature that we need some Great Legislator to draw lines in the sand before us? Are we so passive that we docilely accept the ever-expansive lawmaking of lesser legislators as controls on our lives, controls on which many have come to rely for their basic understanding of good and evil, acceptable and unacceptable?
No, my favorite law is “no law,” because “no law” exists where no law is needed, requested, or prescribed, and this is the world in which I would like to live.
Are we there yet?
Perhaps he or she was was writing for effect, but if it’s true that laws represent “a response to behavior on the part of the governed unacceptable to the collective whole,” is it appropriate to treat the rule of law as a final achievement?
Thomas Hobbes: Total Warrior
That the law applies with equal force to all is a noble ideal, but its necessity implies a failure in human conduct. This is not to say that those with the means should not work to develop rule of law principles in countries in which they are lacking. Rather, the suggestion is that those who have achieved broad acceptance of the rule of law in a meaningful, practical way should not view their task as complete. The next major landing point might be a society that exercises self-restraint on the collective and individual levels. The final goal might be a society in which even self-restraint is unnecessary because people lack the urge to act in ways that today require external (legal) and internal (self) restraint.
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It seems to me that the question that this raises is whether law is supposed to be a reflection of society in some way, or as a tool to shape it. If law is understood to be a reflection of society – it’s values, morals, expectations – then yes, the rule of law seems like some sort of achievement. That said, if this were the case, why codify law at all?
Alternatively, if law is supposed to be a tool for shaping society, it seems it would fall prey to the criticism you mention above of paternalism. I think, then, that this issue becomes political pretty fast. Viewing law as having the power to shape society in certain ways seems in accordance with the fact that we live in a society that is rampantly unjust – what recourse other than law might you suggest to correct for injustice? The question is not whether we are so “base and immature” that we need law to control our unruly and childish behaviour, but rather whether we might live and interact in ways that marginalize those who have no protection other than law.
Iris Young talks about western democracies as being places were individuals find themselves “thrown” into situations that they did not – and very well may not have – chosen for themselves. The motivation for democracy, for her, comes from the fact that we live together. For Young, democracy is a problem-solving process. It seems to me that law might be the most probable – and desireable – outcome of that process.
To clarify, I do think the rule of law is an achievement, and I’m not sure we’ve figured out a better way to do things than to codify just laws and enforce them in a just manner. To that extent, I think I agree with Ms. Young.
The quoted comment, as I read it, is not concerned with paternalism, and it is not about law as an ontological control mechanism. I think the sentiment of the comment and post is aspirational in nature. A just system of law enunciation and enforcement is necessary. The hope, expressed here, is that we might reach a point where laws are unnecessary because people act justly of their own volition. The suggestion of the post is that the rule of law, while a valuable achievement, is not the pinnacle: there is more to be done in the way of self-improvement.