The Rule of Law

I recall an argument I once witnessed regarding pot prohibition and its adverse effect on rights and civil liberties. It broke into the usual factions, with prohibitionists declaring they don't want a stoned society, libertarian-leaners declaring that enormous harm has been done by those who've banned an element of personal choice, and pragmatists arguing that prohibition is a failure. The argument devolved into one person asserting "if you don't want a criminal record, don't break the law" and others challenging that assertion.

It reminded me of an event from a few years back: the saga of Nevada cattle rancher Cliven Bundy. The Cliven Bundy story offered us the amusing spectacle of then-Senate Majority Leader Harry Reid, whose ill-advised decisions haunt the Democratic Party, declaring the primacy of the rule of law in the aftermath of the Bureau of Land Management backing down from a possible armed confrontation between its agents and a couple hundred ranchers. The hypocrisy in Reid's statement "We can't have an American people that violate the law and then just walk away from it" is very amusing, considering his partisan blindness to all sorts of Obama Administration shenanigans.

The hypocrisy aside, Reid's point is fair. How can a society function properly without the rule of law? It can't, of course, but the answer doesn't end there. While one of the most basic elements and bedrock principles of a society is the establishment of laws that govern how members of that society interact with each other, laws are not good, proper and moral simply because they are laws. When oppressive, unjust, byzantine and unevenly applied laws dominate the landscape, do we blame the people for losing respect for the law or do we blame the lawmakers for losing respect for the people?

When one person ignores a law and acts in a fashion that breaks it, that person is subject to some form of punishment. Criminal or civil prosecution, fines, imprisonment, restriction from certain actions, community service, probation, parole... societies establish some sort of consequence for acting in a fashion society deems unacceptable. Lawmakers, when they write laws, usually reflect and respond to some component of society, and as society changes and evolves, lawmakers change and evolve the law in response. Consider the civil rights movement. Would the Civil Rights Act of 1964 have been enacted without preceding societal shifts? Would attention to the injustices that preceded those changes have been drawn without the acts of civil disobedience committed by Martin Luther King, Rosa Parks and countless others? Would the British have left India had Gandhi not marched to the sea to make salt? Would the Colonies have risen in revolt had Boston Harbor not been flavored with tea?

Obviously, there are times when "the law" deserves to be broken, if only to illustrate its unjustness. Those who do should expect punishment, and it is often the act of punishment that will stoke society's outrage sufficiently to motivate change. Civil rights protestors accepted arrest and incarceration. Gandhi's marchers allowed themselves to be beaten. Judgment of justification in breaking the law derives from society, from the zeitgeist.

Not all bad laws get addressed on a grand scale - there's a lot of small stuff. Staten Island resident Eric Garner "died by cop" over the sale of "loosies," or individual cigarettes. Why was he selling loosies? Because there was money to be made. Why was there money to be made? Because state and local government imposed taxes so high that a black market developed. Why did the black market develop? Because people want to smoke and they don't respect the government's wishes to the contrary. Yes, Garner broke the law. But, who was he actually hurting? The people buying loosies certainly weren't being forced to, and the cigarettes he was selling were illegal only in that they hadn't been fully taxed.

There are countless laws on the books that people don't esteem enough to obey, and the accumulation of such has a deleterious effect on people's respect for the rule of law itself.

Anarchist fantasies aside, societies simply don't function without rules, without a bedrock of law. Properly constructed and evenly enforced, laws lubricate the functioning of society, the creation of wealth and the enjoyment of the fruits of liberty. Laws, however, are not entities or ends unto themselves. A prohibition, restriction or requirement is not legitimized simply by enactment. If a law doesn't make sense, or if it causes harm, or if it infringes on fundamental rights and liberties, it's not a good law, and there's no moral validity to the position "it's the law, don't break it." Stacking up many such laws, writing endless pieces of legislation that people tend not to obey, degrades society's attitude toward the law itself. That can lead to people breaking laws that they shouldn't break - both for their own sake and for society's sake.

Given enough laws, everyone is a lawbreaker. Given enough laws of sufficient vagueness or granting sufficient prosecutorial discretion, and anyone can be prosecuted. Given all this, government officials can simply threaten and coerce people into acting as they wish. Given sufficient awareness of all this, average citizens start distrusting the legal system and the law itself. More laws can lead to more lawlessness.

The rule of law is not a one-way street. For it to serve its proper societal purpose, laws need to be perceived as legitimate. They need to be based on basic principles of liberty, property rights, and the primacy of the individual. They need to be evenly applied. They need to make sense - to be based in some form of rationality and logic.

The onus is on lawmakers to understand and apply this, and the obligation is on citizens to demand that laws be fair, just and reflective of what's actually necessary. And, it behooves us all, lawmaker and citizen alike, liberal, conservative, socialist, libertarian, to demand that the law be evenly applied, that selective and uneven enforcement for political gain (a metastasizing reality today) not happen, and that laws not be passed that work contrary to the advancement of a free society.

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood. - James Madison