Losing the Rule of Law?

[december]

Dr. Walter Williams says, Laws or rules that govern a free society should have similar features. There should be "rule of law." Rule of law means that

laws are certain and known in advance. Laws envision no particular outcome, except that of allowing people to peaceably pursue their own objectives. Finally, and most important, laws are equally applied to everyone, including government officials.
[snip]
"The greatest movement of progressive societies has hitherto been a movement from status to contract." In non-progressive societies, rule of law is absent. Laws are not general. They're applied according to a person's status or group membership. There's rule not by legis, the Latin word for law, but by privileges, the Latin term for private law. [snip]

How do we determine violations of rule of law? It's easy.

See if the law applies to particular Americans as opposed to all Americans. See if the law exempts public officials from its application. See if the law is known in advance. See if the law takes action against a person who has taken no aggressive action against another.

If you conduct such a test, you will conclude that it is virtually impossible to find a single act of Congress that adheres to the principles of the rule of law. [snip]

Most Americans have no inkling of what rule of law means. We think it means obedience to whatever laws Congress enacts and the president signs. That's a tragedy.
http://www.cnsnews.com/ViewCommentary.asp?Page=\Commentary\archive\200107\COM20010703b.html

Posters -- Is this the proper definition of "Rule of Law"? Have we lost it? Does it matter? Is it a tragedy? Is there a way to fix it?

[Collounsbury]

Well, as I rather constantly deal with the absence of the rule of law in trying to do business in MENA, let me give thsi a go. By the way, I would advise a visit to something like transparency international to get an idea of a more, how shall we say, universal and less partisan and peculiar set of definitions and standards.

Originally posted by december
laws are certain and known in advance.


Reasonable.

Laws envision no particular outcome, except that of allowing people to peaceably pursue their own objectives.


Depending on the meaning one gives to this, vague or libertarian. A good number of social democratic legislation in Europe might fail this test. Sorry, have to exclude this one as a 'universal' without further clarification.

Finally, and most important, laws are equally applied to everyone, including government officials.


Reasonable.


"The greatest movement of progressive societies has hitherto been a movement from status to contract." In non-progressive societies, rule of law is absent. Laws are not general. They're applied according to a person's status or group membership.


True.


See if the law applies to particular Americans as opposed to all Americans.


Well this wording strikes me as fishy, rather along the lines of libertarian prop. If the meaning is that a law is applied equally to all concerned given its objectives then it seems fair

See if the law exempts public officials from its application.


Again, I sense gerrymandering of the sense of the phrase. Official immunities have valid usages in a system where the rule of law obtains.

See if the law is known in advance.


That is published? Sure.

See if the law takes action against a person who has taken no aggressive action against another.


What this means in reality I have no idea but it sounds like libertarian tripe.


If you conduct such a test, you will conclude that it is virtually impossible to find a single act of Congress that adheres to the principles of the rule of law.


As I suspected.

I roll my eyes.

Most Americans have no inkling of what rule of law means. We think it means obedience to whatever laws Congress enacts and the president signs. That's a tragedy.


If his standard is his own particular vision as defined in part above, I am afraid few specialists in the area of rule of law would having much inkling of what he means in truth either, unless they were conversant with lib think.


Posters -- Is this the proper definition of "Rule of Law"?


By any common usage, no.

Have we lost it?


By his standards no nation in existance ever had it, let alone lost it.

Does it matter?


If you're a liberatarian, I suppose, else no.

Is it a tragedy?


See above.


Is there a way to fix it?


Yes, become acquainted with non-lib definitions of the term. Above all try to read less propaganda.

[Duck Duck Goose]

So he's some kind of columnist? Is he the same "Walter E. Williams" as this guy? Radio, TV, books, articles, occasional sub for Rush Limbaugh?

http://www.worldnetdaily.com/speakers/wwilliams.asp
Dr. Williams serves on several boards of directors such as Citizens for a Sound Economy, Reason Foundation and Hoover Institution. He serves on advisory boards of: Landmark Legal Foundation, Alexis de Tocqueville Institute, Cato Institute and others...

*****************

How do we determine violations of rule of law? It's easy.

See if the law applies to particular Americans as opposed to all Americans.
See if the law exempts public officials from its application.
See if the law is known in advance.
See if the law takes action against a person who has taken no aggressive action against another.

If you conduct such a test, you will conclude that it is virtually impossible to find a single act of Congress that adheres to the principles of the rule of law.
Um, what? I'm not a lawyer, but even I know that this is a vast oversimplication.

Yes, we have laws that apply only to particular Americans, such as the Americans with Disabilities Act. And the laws governing speed limits on interstate highways are only applicable to people driving cars. So what?
Yes, we have laws that exempt public officials from their application. You can't sue the Yellowstone park rangers just because a grizzly bear mauled you.
All our laws are known in advance. Or does he think Congress puts all of its proposed legislation in the same filing cabinet in the basement behind the locked door guarded by a rabid leopard that the Hitchhiker's Guide "hyperspace bypass" proposal was in?
Yes, of course we have laws that "take action against" (read: punish) someone who has not acted aggressively towards another (I'm assuming he means "an innocent person"). Deadbeat dads who refuse to send the child support checks aren't "acting aggressively", but there are laws that punish them.

[december]

Originally posted by Collounsbury
Well, as I rather constantly deal with the absence of the rule of law in trying to do business in MENA, let me give thsi a go. Collounsbury, your comments seem fair and reasonable to me. Dr. Williams appears to bave bitten off more than he can chew, in this article.

I was interested in your reference to the impact on business of different types of law in different places. Would you care to expand on some of your observations? Have you also observed how the rule of law impacts individuals?

[tracer]

december quoted Walter Williams:

How do we determine violations of rule of law? It's easy.

See if the law applies to particular Americans as opposed to all Americans. See if the law exempts public officials from its application. See if the law is known in advance. See if the law takes action against a person who has taken no aggressive action against another.

If you conduct such a test, you will conclude that it is virtually impossible to find a single act of Congress that adheres to the principles of the rule of law.
Virtually impossible to find a single act of Congress that doesn't violate this definition of the "Rule of Law"? How about the Federal budget? Congress has to pass that every year. Yeah, I can see how the Federal budget doesn't apply to all Americans, exempts public officials, isn't known about, and takes action against non-aggressors. :rolleyes:

[lucwarm]

Originally posted by december

laws are certain and known in advance. Laws envision no particular outcome, except that of allowing people to peaceably pursue their own objectives. Finally, and most important, laws are equally applied to everyone, including government officials.
[snip]




Well, in the U.S.A., the criminal code is very good in one respect:

Basically every criminal law is codified and known in advance. And courts are not afraid to throw out cases where the law is "ex post facto."

The second criterion doesn't make a lot of sense to me. For example, a law against robbery envisions a certain outcome - that robbers will go to jail. I don't see a problem, per se, with envisioning an outcome -- it's the outcome itself that should be judged.

With respect to the third criterion, I think we have a ways to go. Unfortunately, even laws that are general on their face are applied in an unequal fashion. For example, Massachusetts has a law that says if you get caught with an unregistered handgun, you go to jail for a year with no parole. Now, if a Kennedy were caught with such a weapon, would he really go to jail for a year? Of course not. And I wouldn't want him to, because it's an overly harsh law. But if laws like that truly had to be applied equally, I think they would be reformed to something more sensible.

So, I would say that the U.S. doesn't have "rule of law" to the extent I would like, but we're pretty good, and better than a lot of countries where the elite can literally get away with murder.

[SuaSponte]

december,

There is a fundamental tension in the laws, between general applicability and discretion.

No one would argue (I think) against the principle of "one law for all people". However, few would argue against the principle of "take into account the circumstances when applying the law." But the result is that the same events get disparate treatment. This is most obvious in criminal law where, to oversimplify, if you kill someone because you are righteously pissed, you get a lesser punishment than if you killed someone dispassionately.

And, of course, the principle of discretion is easily abused. As lucwarm pointed out, a Kennedy in Massachusetts would probably be treated better than Joe Six-Pack. This abuse leads to a balancing test - which is worse, no discretion or the fear of elitism infecting discretion.

Sua