Posted on 05/01/2008 5:58:23 AM PDT by stan_sipple
Recently I asked a group of future leaders in a rural Nebraska community whether they were familiar with the term “rule of law.” A couple of hands went up, half-heartedly. The theme for Law Day 2008 is “The Rule of Law: Foundation for Communities of Opportunity and Equity.”
The importance of the rule of law is apparently not well understood, lacks support and there even may be hostility toward it. For some, notably politicized faith communities, the rule of law means the loss of their values agenda.
So I posed this to a friend: Suppose you had a strong values-based political agenda. If you were a conservative, for example, that agenda might include no gun control, no abortions, minimal government and similar issues. We could pose a liberal agenda just as well.
Then suppose you had a choice: Make this values-based agenda dominant throughout our nation, or keep and strengthen our democratic, open society with the mixture of values we have traditionally enjoyed. Which would most people choose? Are many people now ready to forgo the rule of law, based on democratic principles, for what they consider a greater set of values? To the extent this happens, and I believe it is in some quarters, we are flirting with fascism. It can come from the left or the right.
What is driving this development is fear. Fear as a result of Sept. 11. Fear intentionally whipped up by certain political interests. And more insidious fears, fears of loss of self-worth and security and a fear of death without resurrection, which make people vulnerable to demagogues and charlatans. Because of fear we are losing moderation, give-and-take, tolerance and, yes, the rule of law.
The loss of the rule of law can be so subtle. … It was a glorious day in the central plaza of Cali, Colombia. It was 1973. The sun was shining and people were bustling along the sidewalks, enjoying shopping and each other. I was on my way to an appointment, taking in the sights. There was freedom in the air.
Suddenly, several tarp-covered army trucks pulled into the square. Soldiers with machine guns jumped out and randomly grabbed men, women and children by the arm and put them into the trucks. Then they drove off. The rest of us went about our business as if nothing happened. To this day I have no idea what happened to those people. I learned later this was done to intimate the citizens to prevent them from joining national demonstrations. There was no rule of law that day.
Given the fear we are experiencing, it is so easy to think, “It doesn’t involve me. It’s those other guys. If they are after them, it must be for a good reason.” All the while, our individual rights and Constitutional protections are being eroded.
The president says he can unilaterally, without review, declare war and finger a citizen an enemy-combatant. That person then loses all rights and can be tortured. If necessary, will we fight back? Defend our tradition of the rule of law? The Pakistani judges and lawyers did. They protested, took to the streets and resigned their positions for the rule of law.
Douglas K. German is executive director of Legal Aid of Nebraska.
“Given the fear we are experiencing,...”
Pretty much sums this article up. More hyper-emotional liberals. I believe the very definition of liberalism should be “the inability of one to control his or her emotions.”
From Hayek:
The Rule of Law was consciously evolved only during the liberal age and is one if its greatest achievements, not only as a safeguard but as the legal embodiment of freedom. As Immanuel Kant put it (and Voltaire expressed it before him in very much the same terms), "Man is free if he needs to obey no person but solely the laws." As a vague ideal it has, however, existed at least since Roman times, and during the last few centuries it as never been so seriously threatened as it is today. The idea that there is no limit to the powers of the legislator is in part a result of popular sovereignty and democratic government. It has been strengthened by the belief that, so long as all actions of the state are duly authorized by legislation, the Rule of Law will be preserved. But this is completely to misconceive the meaning of the Rule of Law. This rule has little to do with the question whether all action of government are legal in the juridical sense. They may well be and yet not conform to the Rule of Law. The fact that someone has full legal authority to act in the way he does gives no answer to the question whether the law gives him power to act arbitrarily of whether the law prescribes unequivocally how he has to act. It may well be that Hitler has obtained his unlimited powers in a strictly constitutional manner and that whatever he does is therefore legal in the juridical sense. But who would suggest for that reason that the Rule of Law still prevails in Germany?
To say that in a planned society the Rule of Law cannot hold is, therefore, not to say that the actions of the government will not be legal or that such a society will necessarily be lawless. It means only that the use of the government's coercive powers will no longer be limited and determined by pre-established rules. The law can, and to make a central direction of economic possible must, legalize to what all intents and purposes remains arbitrary action. If the law says that such a board or authority may do what it pleases, anything that board or authority does is legal - but its actions are certainly not subject to the Rule of Law. By giving the government unlimited powers, the most arbitrary rule can be made legal; and in this way a democracy may set up the most complete despotism imaginable.
The base propaganda of the article is embedded in this phrase."values we have traditionally enjoyed" is being warped by the left to imply that redistribution of wealth or economic leveling is somehow and "American value".
Noting could be further from the truth but the lefties (and I'm not saying this guy is one only that he is parroting their phraseology) hope to fool younger Americans into thinking it is.
Is it just me, or does anyone else see the significance of which day was chosen as ‘Law Day’?
Given the context and the content of this literary bowel movement, I am convinced that the author has absolutely no clue what “rule of law” actually means.
Legal Aid must be hiring high school dropouts.
Or the Clintonista saying something about Executive Orders - "It's great! No Congress or courts to worry about!".
“I believe the very definition of liberalism should be “the inability of one to control his or her emotions.””
Or “the desire to control everyone else’s lives.”
The desire to control everyone else’s lives, to a logical individual, is a lack of emotional control. This is seen frequently in the typical “fellow traveler” but not in the leaders of the liberal agenda who are cold hearted “Stalin’s” that would rule with no emotion just raw power. These people are just “predicting” what their rule would be like.
Pretty funny article. The author has no idea what the concept of the rule of law means.
It means you have a set of laws, published in advance, that reasonable people can understand. Then, you have a set of institutions that apply the rules impartially via a process that is procedurally fair--that is, the institutions do not guarantee a just outcome (only God can ensure justice) but they follow procedures (right to lawyer, right to confront witnesses etc) to make sure the adjudication is basically fair. This lets people govern their behavior rationally by knowing the law in advance and adjusting it to the law. It is one of the greatest innovations in human history.
Somehow, the author thinks a law against, say, abortion (really any conservative law) is inconsistent with the rule of law. That is silly. You make it illegal in advance and then enforce it as against aborters who did so after the law was passed in a fair trial. That is the rule of law in operation.
The author should be more concerned about the breakdown in the rule of law in other areas: (1) poorly written laws that people cannot understand; (2) delegation of law writing to administrative agencies who also enforce the laws; (3) appellate judges who don't like bright lines in well written laws and impose "balancing tests" to make them more "fair", thereby rendering them ambiguous; (4) non-judicial administrative tribunals like the Canadian Human Rights Commission or Child Protective Services who improvise the law as they go along or provide summary, ex-parte procedures with drastic consequences in which there is no right to present your case; etc etc etc.
right on! I have an irrational fear that foreign madmen will hijack airliners and crash them into large buildings (sarc)
“that agenda might include no gun control, no abortions, minimal government and similar issues”
These are not agenda items they are constitutional items. The real rule of law.
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