"I refer to the
myth of the rule of law because, to the extent this phrase suggests a society in which all are governed by neutral rules that are objectively applied by judges, there is no such thing. As a myth, however, the concept of the rule of law is both powerful and dangerous. Its power derives from its great emotive appeal. The rule of law suggests an absence of arbitrariness, an absence of the worst abuses of tyranny. The image presented by the slogan "America is a government of laws and not people" is one of fair and impartial rule rather than subjugation to human whim. This is an image that can command both the allegiance and affection of the citizenry. After all, who wouldn't be in favor of the rule of law if the only alternative were arbitrary rule? But this image is also the source of the myth's danger. For if citizens really believe that they are being governed by fair and impartial rules and that the only alternative is subjection to personal rule, they will be much more likely to support the state as it progressively curtails their freedom.
In this Article, I will argue that this is a false dichotomy. Specifically, I intend to establish three points: 1) there is no such thing as a government of law and not people, 2) the belief that there is serves to maintain public support for society's power structure, and 3) the establishment of a truly free society requires the abandonment of the myth of the rule of law."
I posted this because I felt as if we began to vaguely discuss the edges of this topic at the most recent CLR. The article is a little long, but really worth the read. I'm wondering what everyone's thoughts are on this, and if you do agree with John Hasnas's argument, any thoughts on what should be done? Or what implications this has?
1 comment:
That essay (along with being rather looooooong) Was rather convincing when it came to showing that law cannot be objective or politically neutral in the real world and that it is harmful to society to believe it can be/is that way.
But his solution of free-market legal systems just doesn't work. Today in the US there are already free-market legal services available in certain places where the court systems have become backed up and they seem to do a great job and use some of the things the essay mentions, but there is a big thing in the equation that the essay doesn't mention. These legal services are all voluntary. Much, maybe most, of the most important legal matters are completely involuntary for one of the concerned parties. If I am dumping toxic waste in a river and you are down steam of me and try to take me to court in a voluntary society I can either refuse to acknowledge your complaint, or ONLY agree to go to the free market courts who I know will side with me. This doesn't happen today with the free market legal services because if someone refuses to go to a free-market court then he can be dragged to a government court.
Somewhere in the system has to be a man with a big stick ready to use force to defend the defenseless and he MUST be given a monopoly on who can use violent force or else he will inevitably go to war with his competitors. That is the whole point of government. Force in the hands of everyone, or numerous groups of people, is much worse dangerous in then in the hands of a single entity who we can focus our attention on to restrict to the maximum degree possible his potential for abusive use of force.
Take his example with a University and their own private police. The only thing stopping those police from abusing their position is the govt which holds the true monopoly on the use of force. Don't imagine that they wouldn't fall to the position of extortionists once the government no longer holds them at bay. They will innocently, and perhaps reasonably, demand pay raises and better equipment to fulfill their larger and more dangerous new role. And who will decide just how much more they should be paid how much equipment they will need? Likely the men with the sticks.
You can actually see an example of this in the final centuries of Ancient Rome. Rome had grown tired of paying its troops so it instructed their border troops to live amongst the towns they defended and to utilize the resources of those towns they defended to supply and pay themselves. This was exactly the chance the essay's author would have jumped at... and then quickly have become disappointed. Abuses ran rampant and the towns quickly learned that the tyranny of many kings is much worse then the tyranny of one.
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