August 5, 2010

FREEDOM ISN'T FREE:

What Is the “Rule of Law”? (David W. Skubik, 08/03/10, First Principles)

An important catchphrase of modern conservative leaders and thinkers, the “rule of law” captures what conservatives see as the need to return to past assumptions about government.

One commonly held view of the meaning of “the rule of law” is that governments ought to be so structured that citizens perceive society as grounded on the impartial application and enforcement of agreed norms of behavior rather than on the whims or prejudices of political leaders. In most contexts that mention the rule of law, the implied if not explicit contrasting phrase is “and not of men.” As outlined in Montesquieu’s seminal The Spirit of the Laws (1748), influential in the thought of the founders of the American Republic, there should exist a certain balance of power between the various branches of government so that no partisan can disturb the overall structure. This arrangement allows citizens to trust in the fair administration of the laws. Constructing and maintaining this balance are themes in James Madison’s famous Federalist 10 (1787), which urges ratification of the new Constitution because it will serve as a crucial tool for ameliorating the activities of factions (i.e., political parties and special interest groups) in American political life.

This practical political result requires more than customary observance of the usual technical legalisms—that is, that no act should be designated a crime and no punishment meted out, without law. As important as these legalisms might be, the overall structure of government must be so framed as to inspire and protect the confidence of the people. This requires a written constitution as the fundamental formulation of governmental authority. In Thomas Jefferson’s words, “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”


Note that in a republic, freedom does not mean that you are free to do what you want, but as free as every other citizen to do what they want: "Action regulated by law is free...not when the law is accepted voluntarily, or when it corresponds to the desires of the citizens, but when the law is not arbitrary, that is, when it respects universal norms (when it applies to all individuals or to all members of the group in question), aspires to the public good, and for this reason protects the will of the citizens from the constant danger of constraint imposed by individuals and therefore renders the will fully autonomous."


Posted by Orrin Judd at August 5, 2010 5:42 PM
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