United States is a "government of laws and not of men"

Great Debates
1

Saw this article in Al Jazeera of all places.

I really liked an argument he builds that Bush views and attempts at democracy in Iraq are

Which means that you must conclude:

Here comes the big crux of the argument:

I was thinking about how Reagan for example tried to get around congress in the Iran Contra scandal… and how the current administration has several times tried to avoid congressional oversight or control. The ideas above sum up pretty well why some republican presidents disregard institutional constraints more than others party presidents :slight_smile:

Well to a discussion… do conservatives in fact have this view of the virtuous american leaders being above criticism ? Disregarding the law in order to do good ? Does Bush think like this ?

I feel Bush does. Being American and a Born again Christian seems to make Bush feel he is the supreme righteous creature…

How do you use this argument against Bush ? I would venture that most americans understand very well that the Constitution was solidly built because it restricts abuse of power and that the law abiding nature of americans shouldn't be disregarded no matter what the threat. Torture for example being unnacceptable even if national security is in danger. How can one stick this criticism on Bush ?
2

Think you just did.

3

I think the discrepancy between the view

and the view referred to in the OP is with the scope of these restrictions.

The constitution, laws and institutions of the US seem to do a pretty good job of protecting US citizens and US residents from abuses by the US government.

However, protecting everyone else from the US government seems to be generally agreed not to be the job of the US constitution, laws and institutions.

4

Just as an interesting aside: The Dutch sociologist Fons Trompenaars has posited a model of different national cultures, that may be of interest here. He talks about underlying core values within a culture, and he puts such as poles on a continuum.

One such pole, he calls “Universalism vs Particularism.” In short form, a Universalism is the deep-rooted belief that the laws or rules have precedence over personal relationships. The U.S. is a Universarlist country on that scale: you do not lie in court to protect your friend. Disputes are resolved in courts. Truth is paramount, more important than friendship. Such countries have governments of laws.

Particularism is the deep-rooted belief that personal relationships are more important than the rules. Of course you lie in court to protect your friend. Friendship is more important than truth. Whether you follow the laws depends on the particular circumstances. Such countries may have laws, but government is based on who you know.

Obviously, these concepts don’t exist in isolation. You can think of examples where you might act as a Universalist, and others where you might act as a Particularist. However, Trompenaars focuses on the broad, overall, societal norm to classify countries. Thus, the idea of “government by law” would be viewed by many societies as silly, not to say unworkable.

5

Wow… very good point ! Scary too.

Still the Constitution, Founding Fathers and US laws seem to take the view of “government of laws” being necessary and good. So even though the U.S. Constitution doesn’t restrict outside the US it certainly supports a more “law abiding” government outside US borders.

International efforts should also take this view at least up to a point… afterall US laws and Constitution are well known outside the US… and if you preach something different to others and something else for you, well then it comes across as hypocritical or false.

6

Funny thing is, in many places (Spain for example), the US is perceived as a pretty lawless country, sometimes due to having too many laws.

An example:
Laws in Spain get updated regularly. Any new law includes indications on what happens with related laws. For example, every year’s tax tables supersede the ones from the previous year, but still it is indicated; when there is both a country-wide law and a region-wide one, the most-detailed one usually prevails… the one created later, if it’s the regional one can’t contradict the country-wide one, and if it’s the country-wide one it must indicate which parts of the regional one get struck down (being defined in more detail or in a different way in the country-wide one) and which stay (but for that region only).

I have heard foreigners complain that in Spain it is difficult to know which layer of government do you have to ask for permits, but you just have to work upwards: ask in City Hall and they will point you to the right place.

The impression that we get about the US, from news, movies and our own trips there (I lived in the US for 5 years, in two separate periods) is that laws get made, never get updated, you can have a zillion contradictory laws, and precedent can be more important than the law. Precedent that can be set by a jury, i.e., a handful of people who often have very little knowledge of the laws involved, of technica issues, etc.

In Spain you pay income tax once: depending on where you live, you pay to the central government or to the regional government. Living in Philly last year, I got taxed on the same income three times: town, state and federal. To us, that sounds more like “lawless” than “legalistic”, even if the fever has been caused by an excess of laws.

A question about the jury system: would a juror be allowed to ask questions? You never see someone asking them in the movies and the Americans I know who’ve been in one looked at me like I was crazy, when I asked. I’d be unable to take part in a jury, if it implied keeping my mouth shut when someone says something that just makes no sense.

7

A few points:

Laws do get updated here – we have a common-law legal system, and that’s why precedent matters. It’s how our laws get updated and how laws that may be many years old can be applied to current situations. And juries don’t exactly set precedent – usually, an appellate court hears an appeal from a jury’s decision (although appeals can’t usually made just because the appellant believes the jury to have been wrong – there must be a legal, not a factual, issue). Appellate judges, who do indeed have extensive knowledge of the laws involved and of the technical issues, write opinions, which are binding on lower courts.

This is a technicality – in Spain, I image the central or regional government distributes tax revenues to local entities. We’re a federal system, so state and local governments tax as needed, and the feds do the same, although a good bit of tax collected by the feds finds its way back to the states.

Grand jurors, at least in New York State, may indeed ask questions. Jurors at a criminal or civil trial may not. This may be different in other states, or even in this state under certain circumstances. Perhaps a lawyer (I’m not one) who knows more than me will jump in here.

8

Which is where Mariluz may be getting puzzled, since Spain’s legal system is based on the “Civilist” a.k.a. “Code Law” school. Seriously divergent legal traditions (added to the structural differences caused by the difference between a parliamentary government system as opposed to a separation-of-powers republican-presidential system; and by the nature of American federalism, where the States are technically legal sovereign entities in their own right, while the Comunidades Autónomas AFAIK are not), but both the Common Law and Code Law have been implanted successfully in many countries, and failed to prevent chaos in many others.
Believing that the Rule of Law should bend to accommodate “virtuocracy” is not necessarily an intrinsecally “conservative” trait, it’s a characteristic of hardline ideologues of all stripes (after all, if we’re convinced in our hearts that [choose: God/Reason] says X is what is RIGHT and GOOD, a law that prevents us from doing X must be struck down, and until it is, be defied, even if passed constitutionally and supported by the majority). Just happens that the Right has been quicker to call on it, more vocally, and has lately had the power to put it into action more often, with less qualms about what will others will think of them for doing so.

9

American law abiding isn’t only due to having a lot of laws… but that the judiciary is pretty strong (or so I feel). Plus there are a lot of independent civil groups that defend all sorts of interests. From consumers right to civil rights.

The fact that these groups are well funded is actually more important maybe than simply existing. Everytime I hear about lawyers from these groups defending for free some small case in order to set legal precedents and defend basic constitutional rights I feel envious. There isn't anything as good in my own country... though  due to Roman Law system not emphasizing precendent as much.

 Seeing Bush running over the Senate and passing laws like the Patriot Act are very scary to me. If this happens in the US of all places... then god forbid a shitty judiciary and civil society like Brazil's surviving an onslaught of ill used patriotism !
10

How did they “run over the Senate”? The Patriot Act was passed in accordance with the constitution, and can be challenged in the courts. If the people don’t like that legislation, they can elect people to Congress who will repeal it. No ons is forcing this legislation on the country.

11

The issue is no one even tried to resist the legislation. The people who were elected at that moment didn’t dare challenge the law for political reasons. So even if its completely legal now… its not a showcase for how democracies work.

12

Rashak, that makes no sense. In a democracy, politicians enact legislation that they feel their constituents want, this helps them get re-elected. If every member of congress voted for the legislation then they did it to cater to their voters. They also did it by following the proscribed method of enacting legislation.

The question is “is the legislation constitutionally sound?” That’s a question for the courts not the legislature. That’s what the courts are for.

13

And how, precisely, does one remove poltics from a Democracy? A totalitarian state can, but not a democracy. Politics is part of human nature. Has been for millions of years.

But that’s really besides the point. You have no way of knowing how much political pressure any given legislator was under to vote for or against the bill. You just don’t like it and therefore assume it was bad legislation. Congress can repeal the act at any time if the people so desire. In fact, it automatically expires unless it is renewed.