Balkinization: The Rule of Law in a Nutshell

Comments:

Brian,

Thanks for making this available to us.

All good wishes,
Patrick

(I have the book, but it's nice to have this as a quick reference and easy to share with others.)

# posted by

Patrick S. O'Donnell : 12:27 PM

Awesome. I loved your book, and I continue to love your posts.

# posted by

jsalvati : 12:34 PM

I am curious regarding the assertion that democracy is not a requirement of the rule of law. Certainly the rule of law wouldn't require, say universal suffrage, but wouldn't a completely non-democratic system mean that someone is above the law? If not, can you provide an example?

# posted by

mls : 3:10 PM

Silly me. I thought the ancient maxim, "do no harm," was the basis of our legal system. Not justice, much less the administration of justice, which is exercising a virtue over and above the excess/deficiency injustice, but simply the moral imperative, "do no harm."

It does not take 188 pages to explain this moral imperative. Heck, Aristotle's Nichomachean Ethics is not that verbose (since it is culled from student notes, it does not read easily, either).

Conservatives, if I've understood them, want to legislate other morals into our society. At least that is Kekes and Scruton's sense of conservative. Leftists always want to blame some "structural defect" as the "cause" of all our maladies. For conservatives, "the devil made me do it", for Leftists, "tis society that corrupts."

Ethicists recognize right/wrong comes from our choices, and whether the most-pleasant choice is also the right choice according to instrumental (practical) reasoning. We take the praise, we accept the blame.

Utilitarians simply are majoritarian maximizers. Morality by popular calculus. Ends justify the means, if the utility of X+1 is greater than X. Strange, Hitler, Stalin, Mao, etc., thought their ends justified their means too. Many Leftists happen to be utiliarians, while most Conservatives happen to be religious fundamentalists.

An Ethicist would identify both as vices, the excessive and the deficient, and look for a "mean" as the means. But that is ethics, and our laws are presumably morality-based (proscriptive) on the Harm Principle: "do no harm." Conservatives want to add more from their sacred texts, Leftists want to calculate the consequences for the greatest number. The former are excessive, the latter are defective and deficient.

Here endeth the lesson.

# posted by

Anonymous : 3:10 PM

Here endeth the lesson.

Great lesson, but how does your moral imperative help to distinguish "the rule of law" from similar normative concepts held within other societies? All the talk about the leanings of conservatives, leftists, ethicists, and utilitarians adds up to a pile of diddly-squat when examined cross-culturally, as in many societies such categories are imposed from without, if they exist at all.

I'm sure legal types may feel as if this particular field has already been well-plowed, but anthropologists interested in legal issues can find themselves hard-pressed to note the distinction between "law," "rule of law" and other concepts they're more familiar with like "social norms," "etiquette," or "rules of behavior." It is in that respect that Brian's paper is especially handy--it provides a point of purchase for discussing those distinctions, rendering the shape of the concept visible and--perhaps more importantly--practical, rather than hiding it in the smug ease of a neo-Kantian's categorical imperative.

I think the paper achieves its stated goal--to provide a pragmatic introduction to the issues for a lay audience--and I thank Brian for posting it here.

# posted by

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# posted by

Ц. Мөнхбаяр : 1:27 AM

I thought Prof. Marci Hamilton did a good job summarizing the term in an essay a few years back:

"We have also learned, however -- after several years of pushing our constitutional format -- that there is one indispensable element in a free society. It is the rule of law.

By that phrase, I mean the ideal under which every citizen is governed by the same law, applied fairly and equally to all; government favors may not be bought; and justice is administered blindly, in the sense that it never stoops to favoritism. Under this ideal, government decisions are not the whims of individuals. Rather, they are duly enacted into laws, that are then obeyed as they were written.

One can decree governance structure and individual rights until one is blue in the face, but if there is no rule of law, then there is neither order nor liberty. Individual countries can best decide for themselves whether to opt for a Parliament, a Congress, or another form of legislature, or whether to opt for a President or a Prime Minister. But one element is necessary for any representative democracy to succeed: The rule of law."

She is a strong conservative on various issues, though also a strong separationist on religious matters, so it also might be notable as a voice from the other side of the spectrum.

Thanks for the link btw ... the book also looks interesting. BTW, Bruce Fein over at Slate thinks the presumptive new AG is a bad choice. That and maybe the Stevens portrait in the NYT might be an interest subject for future posts.

# posted by

Joe : 6:00 PM

This comment has been removed by the author.

# posted by

Joe : 6:05 PM