Let’s start by examining the philosophical construct first: “Rule of Law.” Here is how I perceive it…
When it comes to our laws “Rule of Law” is really “rule of people.” More accurately: rule of those who have power and have used it to write laws, enforce our laws, make sure they are enforced properly and as consistently as is feasible. Or it could also, unfortunately, be the rule of those who abuse these powers when they aren’t challenged; or at least successfully challenged. Also we should add those who use such powers who falsely act as if they have a right to said powers, but they also aren’t challenged, or effectively challenged.
“Rule” is only what we collectively enforce.
“Law” is only what we make it.
Or, if we wish to touch on the theological issue briefly: one might say “Rule of Law” is what we claim some deity or prophet has said it should be. As a whole I would disagree, unless you can provide an example of Mohammed giving parking tickets, or Jesus actually joining in on stoning an adulteress, but even if you believe it “to be so,” true believers, the final product doesn’t arrive daily to our courts and lawmakers by celestial newspaper: The Daily You Shall Not Do This Or Else. So even if you claim God as the source and we interpreted that correctly from the start, or semi/sort of correctly, humanity will always manage to find some way to royal fardooklaing it up. (A “fardookla” equaling one “fard,” two “o’s” and one “la… la la… lalalalalala.”)
“Rule” is only what we collectively enforce.
“Law” is only what we make it. .
Besides, If our laws really had been written by God; the Bible, the Koran and even burning bushes would read and sound more like this…
“The party in the first part shall convey to the party of the second part; in consideration of the third and the fourth party….”
…giving Bible purveyors an immensely more difficult job than they already have when it comes to telling us what the Bible says; an absurdity since it has no mouth and cannot speak. But their self appointed job: lecturing everyone, would become, oh, so much harder.
Hmmm… probably not a bad idea, right?
So now we understand my own definition of “Rule of Law,” let’s continue our discussion, but instead: as phrased. Let’s use it like false myth builders do: as if the law came down some celestial birth canal having little or nothing to do with humanity, as absurd as that concept is. After all, who would slap its posterior and cry out, “Breathe, little law, breathe?” Our only duty, our only influence on it, is to “obey.” Period.
Even then, from the very first time I heard this irritating collection of words being regurgitated over and over; irritating because every pundit and talking head during the Clinton era spouted it like fraternity boys spew beer back up after a party, I realized it has meant little except, “Bill Clinton should be beaten down.” Almost everyone who was anyone back then sounded like rhetorically out of control “Rule of Law”-coholics; surly at best, too frequently abusive towards those we preferred to target with our laws.
Why would I type “meant little” and then claim; right now, that specific phrase was in no way a partisan comment? Well, we could rehash those years, but I don’t care for hash that much, at least when it comes to Inspection. If you note the blurb always placed at the end, my intent is usually to go elsewhere. My claim is that, historically, that phrase has long “meant little,” and even less than “little” in the past 20 years.
Maybe you disagree with my analysis of the Clinton years. But that doesn’t matter when it comes to the validity of my main point. Whether you believe Bill Clinton was a slippery scoundrel whose excesses were rarely resolved legally in regard to “Rule of Law…” or George Bush has been a slippery scoundrel whose excesses simply haven’t been addressed at all; and probably never will be… you’re only making my point for me. I would love to have some brave soul point out to me the long list of people in power, or very high social standing… to a slight lesser extent, who have been held accountable and been subjected to this mythical concept we have: “The Rule of Law.” Then, having produced whatever list they might point to, prove to me it is statistically equal to even just White Americans supposedly being held accountable, not to mention Blacks, Hispanics or society as a whole who have been held accountable: sometimes far beyond what the law intended.
The Illinois governor controversy is a case in point. In part it is such big news, not only because he is the governor, but because he is, for now, an exception to the usual beat down the rest of society takes, in comparison. Maybe that “beat down” is mostly well deserved, but that’s not my point. My point is has society probably never had anything even remotely resembling “Rule of Law;” if such is possible. This failure of applying the concept, I maintain, exposes the absurdity of the very idea. Going back to my example: even with the long list of offenses throw at the Gov, the jury is still literally, and figuratively out in that case. There are exceptions, but whether this will actually be one is in the historical category: “undecided.” No matter what you believe about OJ: victim of the justice system or able to avoid, he too is a case in point. Please find for me a long list of Jon and Mary Q. citizens who have had the ability; the resources, OJ has had to fight these fights, escape what would have happened to you or me if we were accused of the same things.
Maybe we should all have that kind of access to justice. Maybe no defendant should. But when money, influence and justice are married to each other there sure is a lot of perverse and abusive sex between this unholy Hell threesome, but the rest of society just gets screwed.
My argument here isn’t class warfare, or power warfare-based, either. If statistically either the powerful and the rich, or the meek and the poor are targeted more my point is still valid. Is it even possible to have “Rule of Law?” I suspect not: any system of justice is going to be skewed through the influence of human behavior, and I think having computers, androids or robots assess such things would be worse. Besides, who wants Robbie the Robot from Forbidden Planet chasing after us in his anti-gravity scooter, or more horrendous, that obnoxious Lost in Space robot, especially as programmed by Doctor Smith?
“Danger Will Robinson. Pull over now so Dr. Smith can eat your brains, Will Robinson.”
(That’s the zombie version that was too stupid for even network execs to accept. OK, I admit, I made it up. There is no form of TV programming so stupid that the typical network exec would pass on it. I also admit I have met a few cops more obnoxious and more mindless than when “Robot” was driven to reprogrammed madness by the Doctor. But only a few.)
Now, let’s be fair, whether your issue of concern might be OJ, or Ken Lay, or Bush, or Clinton, or Andrew Johnson, or Lyndon, or… (I think you can tell where I’m going here, but I shall slither towards it anyway.) …”Rule of Law” has meant rule of the famous, or the ruling class, with little or no rules applied at all. And it also means the beating down of the less favored classes; sometimes for valid reasons; often “not.” Maybe you think Whitey has gotten a raw deal, or Blacks, or women, or… but I assure you that damn near everyone would probably agree that “Rule of Law” is less “rule,” more a hodge podge when it comes to enforcement and rulings. It has been a motley mixture of herky jerky motions within society pointed like a 10 gauge, double barrel, shotgun at those with less power, and less in favor with those who do have power. Occasionally those with influence and power happen to get winged by the blast. But it mostly is “occasional.”
That in no sense is “Rule of Law,” even if you buy into the concept to begin with.
Now, for clarification’s sake, in it’s strictest sense… I don’t either. A man discovers his wife in bed with a neighbor. In a fit of rage he kills one of them, maybe even both. Is that of the same caliber as a man who feeds poison to his baby because he doesn’t want to have children? OrJeffery Dahmer? And while we can attempt to screw with law making to the point of designing special laws to fit excessive crimes, slightly more minor infractions and all the individuality that goes into “how” and “why” a crime was committed… in the final analysis, we will never be able to do all we would have to do to make it fair, workable and effective in the best of sense; at least not without turning our laws into unworkable chaos.
I know. Too late. We probably already have to some extent.
We need to take money out of the equation, as much as possible. And to achieve the best outcome, legally, juries, judges, prosecutors and defenders all need to have more latitude when assessing and passing judgment on defendants found guilty… or setting them free. The current trend is in the opposite direction. These aren’t robots or widgets we’re passing judgment on, though a few criminals, and some on all sides within the justice system seem close to qualifying as such. I do know that judging others more on an individualistic basis rather than some rock hard “Rule of Law” has its excesses, of this I have little doubt, but it’s far better than trying to make some one size fits all system of “justice.” In part, this is why we get our Bill Clinton’s, or George Bushs, our OJ Simpsons.
A defendant is found innocent. He has spent himself and his family into the poorhouse. Is this “justice?” No more than it’s “justice” when the guilty rape our tax structure with endless appeals, or when defendants can use ill gotten gains, or rich relatives/friends, to buy better justice than you or I.
Some Libertarians are going to hate me for the following…
We need to find some way to pay for any given finding of guilt, or appeals, or a finding of innocence: or just take money out of the whole system as much as possible. The first steps would be to find some way for the guilty to help pay for their trial, or for the innocent to be reimbursed for whatever other losses they have incurred. No defendant should ever have to face the relatively bottomless pocketbook of a prosecutor, no prosecutor the relatively bottomless bag of tricks lawyers can throw in their way. This goes for all: Presidents to the homeless.
But since as a society we have decided not to address these issues there is pretty much no “rule” or “law” to the phrase “rule of law” at all. Of course addressing each case less as “rule,” more in it’s own specificity makes a hell of a lot more sense to me than “rule of law” ever did anyway. One of our greatest documents doesn’t start, “then there was the law, the law was always good…” It starts, “We, the people…”
Let’s never forget that.
Inspection is a column that has been written by Ken Carman for over 30 years. Inspection is dedicated to looking at odd angles, under all the rocks and into the unseen cracks and crevasses that constitute the issues and philosophical constructs of our day: places few think, or even dare, to venture.
Ken Carman and Cartenual Productions
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