Abandoning the Rule of Law

Tarran
The Liberty Papers
March 20, 2009

The United States is a banana republic. The Jeffersonian ideal of a series of republics built upon enlightenment values of freedom and reason has died. It wasn’t a sudden death, like that which occurs in a car crash; where one can pinpoint to the second where death occurred. Rather it was a slow lingering death, with organ after organ gradually slowing, a long twilight that ended in the dark of a moonless night.

Some would argue that this is a melodramatic claim, made by some bitter conservative in reaction to the evolution of society, the rantings of a “dead-ender” in knee-jerk opposition to the inevitable and gradual improvement of society. We can test whether or not they are right by comparing the principles of a free society to those dominating the U.S. right now.

The Principles of the Rule of Law

First let us examine whether or not we live under a rule of law.

Joseph Raz described the rule of law as possessing the following properties:

Laws are prospective rather than retroactive.
Laws are stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.
There are clear rules and procedures for making laws.
The independence of the judiciary has to be guaranteed.
The principles of natural justice should be observed, particularly those concerning the right to a fair hearing.
The courts should have the power to review the way in which the other principles are implemented.
The courts should be accessible; no man may be denied justice.
The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.

Clearly most of these principles are currently violated, blatantly and routinely:

The list of retroactive laws are legion. Two that leap to mind are the new tax on AIG bonuses, and the Lilly Ledbetter Fair Pay act.
Anybody who has watched the legislative process in Congress closely would recognize that the laws are not only not stably maintained, but are changing bewilderingly often, with little notice and even less opportunity for people negatively affected by the law to present their case to legislators.
The rules and procedures for making laws are anything but clear. Witness this essay on the Master Resource blog concerning how the Federal government is going to establish regulations on CO2.
In an era when any prosecutor could indict a ham sandwich and make it stick, the nominal independence of the judiciary is meaningless. Furthermore, many of the judges in the U.S. legal system abrogate their independence routinely, witness the “deference to the executive” given in numerous critical cases concerning the limit of government power.
The principles of natural justice have been thrown out of the window. How can people contest the charges against them, if the evidence is kept secret from them and their lawyers? How can a government that passes laws allowing contracts to be retroactively rewritten and used as the basis of fines claim to respect any natural law? How can a government that denies people the right to publish what they want, to own weapons for their own defense, to enter into contracts with anyone they want lay any claim to respecting natural justice? How can a person obey the law, when even the legislators and the executive branch are ignorant as to what the law is? How can asset forfeiture, where people who have not been convicted of any crime have their property seized by the government which then sells it or uses it for its own pleasure, be compatible with any notion of due process?
Nor are the courts accessible… The laws and procedures of the legal system have become so byzantine that only an expert can navigate them. And, sad to say, a handful of people have been detained in a manner that was clearly designed to prevent them from reaching any court, and few people in government have protested.
There are two ways that law enforcement may abuse their discretion in such a way as to pervert the law. One is to turn a blind eye to violations of the law, such as that which occurred in the 19th century when a group of white men murdered a black man. This is out of fashion - with the famous exception of the "blue wall of silence." The other is to "charge stack" - to use its powers to detain and investigate to pursue people frivolously and maliciously despite its foreknowledge that such an investigation would not in fact turn up a serious crime. This abuse is systemic. People are over-charged with tens or even hundreds of charges for a single act by prosecutors who hope to coerce a guilty plea out of a defendant facing hundreds of years of jail time. Often the frivolous investigations are directed against the family members or loved ones of the prosecutor’s target. Take the prosecution of Greg Anderson for his refusal to testify against Barry Bonds; prosecutors are investigating family members in an obvious attempt to coerce his testimony. This is not a new problem, the IRS is notorious for this tactic.

Now that we have established that the rule of law is effectively dead, the next question to ask is whether or not the rule of law is worth defending? One can even argue that the rule of law is some unrealizable ideal, laws don’t enforce themselves, they are enforced by men. So why should we bemoan the failure to live up to some unrealizable ideal? The answer is, of course, that how well the lawmakers, and law enforcers adhere to the principles of the rule of law is a necessary precondition of how wealthy, prosperous, and pleasant a society is. All of the principles of the rule of law have at their root a governing set of axioms:

The law applies to all equally.
The law is not capricious - people can know beforehand which actions are lawful and which are not
The law is generated in a manner that allows all affected people to have a voice in crafting it, and that it is not produced by a special class of people for their own interests.

You cannot violate Raz’ principles without producing a society that fails to satisfy those axioms. A society that applies the law differently to different people, or is capricous and unpredictable, where the laws are crafted for the benefit of some at the expense of others is a society that discourages productive activities and encourages predatory activities, one that is on the fast track towards tyranny.

Where to Now?

I am not concerned with pointing the finger of blame at any individuals or classes of people. Nor am I concerned with reestablishing the past. Murray Rothbard famously commented the the rot set in before the Treaty of Paris was signed. L Neil Smith pointed to the convention which wrote the U.S. Constitution as the moment the death began, calling it a coup. It is clear that the death began in the 19th century, and has been accelerating in the 20th. Merely dialing the clock back will not address the root causes of the death.

The root cause of the death is the fact that the vast majority of the U.S. populace is completely ignorant of what the rule of law is, and the dangers that accompany its abandonment. Too many people are willing to make deals with the devil for their own benefit, or out of a desire to be left alone. Too many people are interested in short-term gain to recognize how destructive these policies they accept, or even cheer at will be in the coming months. Convincing them to change their ways is a difficult, and even quite likely an impossible task.

The change that must happen is not simply the election of a different president, or exchanging one political party’s control of Congress for that of another. It is not a question of impoved ballot access laws. Nor is it a question of storing a shotgun loaded with deer slugs in one’s closet.

What is required is a divorce. Seccession. Emigration. Passive disobedience. The construction of alternate institutions that bypass the state.

Such actions come at a price, people lose their income, friends, and even their families’ support. But, as unprincipled government takes its toll, those losses will become less and less significant for larger numbers of people, and our numbers will grow. The more the state takes, the more people will resist. Four hundred years ago, monarchs whose treasuries had been emptied by the religious wars of the Reformation began selling charters to colonies in the New World as a means of raising money. The flight of people to the New World, and the tax competition it trigerred led to the flowering of liberty and the spread of Enlightenment values. If we lay the groundwork now, the coming collapse can be turned to our advantage.

Abandoning the Rule of Law

The Principles of the Rule of Law

Where to Now?

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