Have you ever been introduced to a new game, e.g. a board game where halfway through the game the player who introduced the game suddenly remembers some rule he forgot to mention earlier, a rule that may be crucial to the outcome of the game, a rule whose late introduction may adversely affect your strategy? The frustration with game changing introductions of new rules can be expanded to the wider realm of politics, a realm which may well pervade everything since the struggle and balance between free will and imposing powers has been waged since time immemorial. Ideally our laws should be as unchanging and timeless as scripture, a heritage to be passed down to our descendants, a heritage whose luster resides in the confidence and assurance that truth is eternal and precious.
This principle of constancy and predictability under an ideal government pervades the traditions of history, especially in literary and cultural gems such as biblical scripture. The Law of the Medes and Persians as referenced by the evil princes and magistrates in the story of Daniel in the Lion’s Den promoted such constancy since the king was encouraged to be conservative in changing the law. These evil men tricked the King Darius into passing a decree which could have had dire consequences for the king’s dear friend Daniel. Once King Darius was aware of the real agenda behind the decree he realized too late the dangers and ramifications of ad hoc legal actions. He then faced what must have been a most terrible dilemma: throw your best friend to the lions or destroy the authenticity, the integrity and perhaps even the very existence of the Rule of Law. Knowingly or not these evil men placed the kingdom itself in jeopardy of anarchy, a situation in which they might have risen to greater power or been swept away like ashes from the fires of war and unrest.
How can the Rule of Law be preserved from decaying into a Rule of Men? As Frederic Bastiat related in his seminal work “The Law”, efforts to preserve the true principle of the Rule of Law from decaying into an Anarchy of Law require true discipline and purity of purpose. Such efforts will require abandoning all pet projects. Attempts to engineer society via governmental force will need to be thwarted with utmost precaution. Aspirations to govern must be reduced to the prime and basic role of pure government which boil down to protecting the individual life, liberty and pursuit of happiness and only inhibiting and punishing such actions and attempts which seek to deprive others of their natural rights to life, self-determination and property. In short governments should only exist to serve in the role of preventing illegitimate force.
Pragmatically, a real government has to have some administrative structure from which to manage the provision of such security and enforcement of law. There’s a precarious balance between giving the administrative apparatus enough power to survive yet limiting that power from becoming all consuming. On the one hand a government can face self-destruction from withering under the jealous encroachments of outside interests seeking a stake in the governing power. Such was the dilemma of the young United States under the Articles of Confederation. On the other hand a government can face another sort of death, a spiritual death as it abandons the Rule of Law and begins to justify growth beyond that required by expediency. At first such justifications are minor and easily rationalized away. Temporary expediencies are all too soon forgotten as temporary and become entrenched precedent.
The following guidelines or heuristics might be applied to the consideration of any new law in ensuring that such laws are framed in the spirit of the Rule of Law:
- Don’t change the law unless it’s absolutely necessary.
- Don’t change the law unless everyone involved has a fair say. In a republic this equates to representation by an elected representative. A constitutional republic represents perhaps the most advanced form of civilized government in terms of being the most likely to preserve the Rule of Law in both spirit and letter.
- Don’t clutter the law with unnecessary details, especially those already covered by more general laws. A great example of cluttering the existing laws with unnecessary new laws is seen in the plethora of new laws such as outlawing texting while driving or cell phone usage while driving. There is no real need for such laws, regardless of one’s opinions for or against the notion of a Nanny State. The simple fact of the matter is that there is already a law, namely the law against reckless driving which covers all these cases. Likewise hate crime legislation is unnecessary and violates the very notion strict impartiality under the true the Rule of Law. One must necessarily ask why certain heinous crimes committed against anyone, e.g. a grandmother, should be punished less than those crimes committed against a group deemed to need extra protection or for whom increasing the severity of prosecution of certain crimes against them is seen as warranted in order to make a political statement about the plight of such groups.
- Laws should never serve any specific agenda other than the above mentioned prime role of government in preventing the illegitimate use of force. No matter however noble or beneficial such agendas may initially be presented as, the mere existence of an agenda should raise a red flag in every sincere defender of the impartial Rule of Law. This guide to limited scope and impartiality of law is most crucial at those levels of government having the largest geographical scope, e.g. the federal government. As the geographical scope or jurisdiction of a law diminishes, the damage of ad hoc rule is mitigated by the fact that if the law becomes too abusive or deleterious then the individuals, groups or businesses affected can move elsewhere. In a dual sovereignty such as the United States of America, the federal government is only supreme in it’s constitutionally enumerated powers, i.e. the states, local governments and the people reserve all other powers. The state sovereignties thus become laboratories of freedom which compete against each other in terms of attracting citizens, groups and businesses by offering the best deals they can offer in terms of protection of property and freedom.
- The citizenry are ultimately accountable to the law and not to man. Hence it is a Rule of Law rather than a Rule of Men. This precludes rule by arbitary regulations especially such generated by virtually independent bodies or commissions which the electorate haven’t directly given the power to legislate. The elected Legislature never has the authority to abrogate it’s responsibility to produce legislation. The elected Legislature only serves to deny the will of the people and circumvent the very basis of their power of suffrage when it delegates the responsibility of producing legislation to third parties unaccountable to the electorate. Likewise uncodified ethics or politically correct opinions should never be given the force of law until such a time as they become the written expression of the law itself (become codified into law).
The law should be a general framework, easy enough to be understood in its general implications by the average man. The average man should never live in fear of having accidentally broken a subset of law which he doesn’t understand or which by sudden introduction catches him unawares. For instance, a recent anti-idling ordinance in Utah’s Salt Lake County may seem legitimate on the grounds of reducing smog in the valley, but from the standpoint of idling one’s car for more than a short period of time as being widely understood to be standard socially unacceptable behavior punishable by severe fines, this law becomes a veritable lion’s den. By itself, the introduction of such a law could perhaps easily become adapted to, but what such “do-gooders” fail to appreciate is that their efforts in seeking to constantly tweak society towards ever more improved refinements only barrage us with an anarchy of new laws. Such laws keep the long terms plans of the common man under continual assault. One never knows quite what to expect in such an environment. We live in an age where new crimes against humanity are being constantly invented. You might innocently invest in a tanning salon with a laundry mat on the side. You might see half your investment be destroyed overnight after tanning beds get hit with a new tax imposed by overzealous lobbying dermatologists. You might see your other half disappear as well if some other special interest group wins government subsidies or tax credits for buying energy saving washing machines. Such government actions would change the rules of the economic game under your feet, arbitrarily picking new winners and losers. Guess what? You’re now the loser and not for any objective market reason. Such artificial disruptions in the otherwise natural operations of the economy and free market lead to more individuals losing faith in the free market as more become conned into believing that the affects of such artificial disruptions of the market are instead failures of the market. Thus the proverbial fire feeds more fire and government interventionism and protectionism soon leads to envy and class warfare with the inevitable growth in losers as the market becomes less and less predictable due to the government introduced proliferation of uncertainty. Likewise in the strictly political sense, ad hoc laws introduced by reason of the vagaries of private or collective agendas all too often promote an anarchy of the law into an unmanageable mess that becomes nearly impossible to objectively interpret. Capriciousness inevitably follows and men become increasingly ruled by the whims of politicians and lawyers rather than the law. As Darius of old learned, ad hoc legislation can all too easily become a den of lions which can injure even those who introduced it. It will require the utmost caution and vigilance in order to protect the Rule of Law from the corruptness of men, especially those who seek swift change, instead of appreciating with gratitude what remains of that great heritage of our Founding Fathers, the impartial Rule of Law.