Saturday, May 18, 2013

The Collapse of the Rule of Law

In discussing the IRS scandal the other day, I had noted that it represented a fundamental breakdown of the social contract between the government and the citizens. The scandal represents not just a violation of fundamental rights to free speech--which were obviously "chilled" by the IRS's actions--but the underlying principle of "rule of law" which is part of the foundation of any successful system of governance.

Rule of law is a somewhat nebulous concept, but is closely related to the concepts of equal rights and due process. Rule of law, in essence, is that there exists a clear set of laws, promulgated in a regular fashion, and which apply to both the governed and those who govern. The United States' Courts website defines it as follows:
Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are: 
-Publicly promulgated
-Equally enforced
-Independently adjudicated
-And consistent with international human rights principles.
This mirrors a 2004 definition promulgated by the U.N. Secretary General that defined the rule of law as:
“a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency." 
(See also this NYT op-ed).

I don't necessarily agree with the inclusion of the phrase "consistent with international human rights principles." The international principles of human rights varies and is subject to the whims of the global elite. The correct statement would be that it is consistent with "God given" or "natural" rights, or a "just law." But I digress.

One of the most important modern thinkers concerning the rule of law was the English law professor A.V. Dicey, who noted that that rule of law is based on three principles, namely that:
(1) legal duties, and liability to punishment, of all citizens, is determined by the ordinary (regular) law and not by any arbitrary official fiat, government decree, or wide discretionary-powers, (2) disputes between citizens and government officials are to be determined by the ordinary courts applying ordinary law, and the (3) fundamental rights of the citizens (freedom of the person, freedom of association, freedom of speech) are rooted in the natural law, and are not dependent on any abstract constitutional concept, declaration, or guaranty.
The Wikipedia article on "rule of law" quotes Aristotle as stating:
It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.
And Cicero as saying, "We are all servants of the laws in order that we may be free." Also,  that Thomas Paine wrote that "in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other."

The same article notes the difference between "rule of law" and "rule by law": 
The ancient concept of rule of law can be distinguished from rule by law, according to political science professor Li Shuguang: "The that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic fashion."
What the IRS scandal represents is "rule by law" rather than "rule of law." That is, government functionaries (it little matters for purpose of this discussion how high the corruption goes) used the law to punish or suppress people holding political beliefs that they opposed. In fact, referring back to Prof. Dicey's principles, the IRS's decision making violates all three: (i) it represented arbitrary discretion by the IRS not only as to what applications for tax exempt status would be approved, and which delayed, but also in the type and quantity of information requested by the IRS; (ii) there was no method of resolving disputes by recourse to the courts or independent bodies because there had been no final administrative decisions and/or the cost of doing so; and (iii) the actions violated fundamental rights, to-wit, free speech and free exercise of religion.

Rule by law is not new to our nation. We are (or should be) familiar with the preferred status and exemptions given to a multitude of government officers and employees: police officers not being punished for traffic violations, or having special privileges to carry weapons (even when off-duty or retired); various government officials (including judges) sidestepping or not being subject to the same security protocol that the public is forced to go through when flying or entering various public buildings; laws that apply to private businesses and individuals, but not to Congress; and so on. 

These perks and privileges are irksome. But, just as "broken windows" theory of law enforcement dictates the enforcement of small laws to prevent more serious crime, perks and privileges cannot be tolerated or it leads to greater corruption. 

This is not to say what all government employees are corrupt--I believe that most are, in fact, not. But we have slipped from "rule of law" to "rule by law." And with it, government has ceased to be our servant, but we have instead become its slave. 

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