Lawless America: what happened to the rule of law.

AuthorFrohnen, Bruce P.
PositionLaw, Constitution, and Culture - Essay

Though it has been obvious to discerning observers for a considerable period that the United States is moving at an accelerating pace from constitutionalism toward arbitrary power, the vast majority of Americans have been slow to recognize that a crisis of governance exists. Much of the reason, I think, is that entire structures of understanding are crumbling. We suffer, not from a frontal attack by clear enemies to constitutional government, but from an internal decay of understanding.

Sadly, in many ways lawyers, whose job it should be to defend the legal and governmental structures of our society, are the least likely to recognize such a crisis. Lawyers have an unfortunate tendency to see such issues in narrow terms, or more likely to miss them altogether. Why? Because they see law as by nature concerned solely with technical issues of legal definition and application. Issues of justice and morality may be important, on this view, but they are not specifically legal and so not the particular concern of law and/or lawyers. (1)

I want to argue that law, as law, is in fact important to our understanding of the contemporary crisis of governance. I would not claim that the crisis is solely or even primarily a crisis of law. At its root it is a crisis of reason and morals. We have chosen to forget the order of being and our obligation to maintain its coherence. But I do think we can better understand the nature and extent of our predicament by examining its impact on the rule of law.

What, then, is the rule of law? At its most basic level, the term refers to a public order in which general, settled rules are applied consistently, that is, in which laws are applied according to their own terms rather than more or less severely, more or less often, according to the status of those to whom they are to be applied. The laws themselves may be unequal; they may single out one group for favorable or harsh treatment. (2) But, if law rules, then the treatment must be what the law says and applied to whom the law directs. Power will not be arbitrary, but bound by the rule laid down in law.

Today, of course, the model "law" that is supposed to "rule" is a statute. A statute is enacted by a specific body of rulers according to pre-established rules and clearly states what it demands. And all this makes for consistent rules. Or so we are told.

I will argue that this view overestimates the power of statutory language. But the problem this formulation highlights is that the rule of law does not necessarily establish justice, or the rule of good law. This is the point driven home by legal positivists, for many decades the dominant force in American law and even today bearers of the dominant view of the nature of law. According to positivists it is silly to pretend that the directives of rulers are always just. And they believe it is just as silly to claim that unjust directives are not "law" in the sense that we will be punished for disobeying them, and even ought to be punished for disobeying them because disobedience undermines the civil order.

But if this is the case, then what good is the rule of law? Why should we value a principle that justifies unjust, perhaps even evil, actions? A fair question, I think, and one that points up a problem, or confusion, at the heart of contemporary legal discourse. On the one hand we want order. As Russell Kirk often pointed out, order is the first need of all; without order there can be no peace, no justice, and no society at all. (3) And order requires obedience to rules. On the other hand, those in power are liable to use that power to impose unjust laws on the people. Such unjust laws can come in many forms, including race-based disabilities or laws reducing marriage to a contract revocable at the whim of either party. And such unjust laws may be perpetuated by the claim that the rule of law demands obedience to them.

The positivist response to this dilemma is not simply "tough luck. You may not like a law--for example, taking land from some disfavored group and giving it to people the government likes better--but it is still a law, period. So get used to it." On the contrary, positivists often deny even the prima facie claim of law to our obedience. (4) But the upshot of their argument is that the law simply has no answer to the problem of a particular law's injustice. Law, argued H. L. A. Hart, the last century's leading positivist, is a fact; it is a rule that achieves its status by the mere fact that it is followed. Thus, in evaluating its moral quality one must engage in moral analysis, a non-legal form of inquiry. (5)

The problem with either form of this response is that it seems to turn a natural good--the rule of law--into an evil, or at least a powerful justification and support for people who wish to use the instrument of law for bad ends. For positivists, if you have an unjust law, you have two choices: accept it because justice is irrelevant to law, or oppose it on moral grounds. In the second instance you may work for a new regime or legal structure, but unless you are a judge you must work outside the law in order to replace it. And what legal positivists cannot provide, because they do not believe it exists, is any legal basis for criticism or reform. Why? Because for positivists law is a mere instrument and morals may dictate but do not encompass legal reasoning.

Some progressives claim to find in the job of judges the duty of imposing a kind of legal morality through interpretation. Ronald Dworkin, for example, puts forward the curious argument that the Constitution lays down abstract principles of political morality, which judges are to discern and apply through their own assumptions regarding the "semantic intentions" of the drafters. The touchstone, for him, is what the legislature taken as a whole is presumed to have intended the words to mean--there being, for Dworkin, no intrinsic, plain meaning to texts. (6) To take one example, Dworkin argues that the Eighth Amendment's prohibition of cruel and unusual punishment should be taken as laying down a principle forbidding punishment "widely regarded as cruel and unusual at the date of this enactment" instead of what the framers clearly stated--"no cruel and unusual punishment," in a context clearly taking capital punishment as a given. Why is such a convoluted and self-serving "interpretation" to be taken as somehow the intention of the drafters? Because the plain meaning of the words would be "confusing" to one who shares Dworkin's particular prejudices regarding capital punishment and the need for the Constitution to be open ended in its meanings. (7) Thus Dworkin's work shows the essential nominalism of legal positivism, calling on judges to infuse a particular morality into laws he accords little intrinsic meaning.

Despite centuries of concrete practice to the contrary, legal positivists (including reluctant ones, like Dworkin) claim that law is not rooted in culture and history, and through them moral reason and experience. For Scalia consistent rules can only come from specific, statutory language. For Dworkin even these rules have no sensible meaning until it is imposed by heroic judges through the use of their own moralistic ideology. Thus judges in particular are in the position of imposing their own morals on the law--unless, of course, they confine themselves to strict application of written rules, eschewing moral judgment altogether.

The classic response to legal positivism has been neo-Thomistic. It has been the claim that, because every law is shaped to the common good, an unjust law is no law at all. (8) This is all well and good. And I am certain that opponents of many unjust laws are happy to hear that they need not fear that these laws should bind their conscience. But the statement that "law is no law at all" really doesn't help very much, does it? Disobedience still brings punishment and disapprobation--often general disapprobation. Perhaps most important, we instinctively understand that there is a kind of presumptive moral legitimacy to all law because it is, in fact, necessary to establish order, the first need of all. In fact, an unjust law is neither simply a law like any other nor "no law at all." It is, as Aquinas following Augustine at one point acknowledges, "a sort of crooked law." (9) An unjust law is a perversion; it fails in its most elemental, natural purpose of furthering justice. But that does not mean that it is not law, that we do not have to consider its status as a rule in deciding how to treat with it.

This is why people's responses quite rightly vary in addressing laws that are unwise, foolish, unjust, and downright evil. We put up with many irritating laws, seek to use the political process to repeal harmful laws, resort, if necessary, to forms of civil disobedience to unjust ones and, yes, in certain circumstances, fight against makers of evil laws. Think about your response to, say, speed limits that are too low, intrusive government regulations, hot-button issues like abortion, and the sadly numerous atrocities governments have committed under the guise of law throughout history.

Injustice, like most things, tends (note my language, please, tends) to exist on a continuum. So a simple "that's not a law, so I need not obey" is only slightly more useful than "it's the law, so obey" in helping us order our public life. Our responses require more calibration than is allowed for by either extreme.

A more nuanced understanding of good vs. crooked law is also beneficial in that it helps us understand that even bad laws often must be tolerated simply because of the place they hold in our larger legal and social fabric. Revolutionary change is seldom a perfectly good thing, even in correcting wrongs. For example, most politically aware observers would say, I think, that they are happy that Soviet communism has come to an end. But we should not be surprised that the...

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