
The Myth of the Rule of Law (1995) - Tomte
http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm
======
rayiner
The exercise in the article is really fantastic:

> Unless your responses were: 1) False, 2) True, 3) True, 4) False, 5) True,
> 6) True, and 7) True, you chose to interpret at least one of the words
> "Congress," "no," "law," "speech," and "press" in what can only be described
> as something other than its ordinary sense. Why did you do this? Were your
> responses based on the "plain meaning" of the words or on certain normative
> beliefs you hold about the extent to which the federal government should be
> allowed to interfere with citizens' expressive activities? Were your
> responses objective and neutral or were they influenced by your "politics"?

These days you read a lot of comments about courts "ignoring the
Constitution." I don't imagine those same people were upset when the Supreme
Court "ignored" the word "speech" in striking down restrictions on video game
sales, or conjured up a "right to privacy" that it could not place anywhere
within the text of the Constitution.

That said, law being political does not mean that adherence to rules is
unimportant. The "rule of law" means that people are willing to abide by legal
decisions. That willingness depends on judges at least _justifying_ their
decisions in terms of broadly-accepted rules.

~~~
tptacek
I don't know. The bit that says:

 _If your response to question two was "False," you chose to interpret the
word "Congress" to refer to the President of the United States and the word
"law" to refer to an executive order._

... has a faulty premise. The corresponding question:

 ______ 2) The President may issue an executive order prohibiting public
criticism of his administration._

suggests that it's within the power of the President's Executive Orders to
forbid public speech. But except where pertaining to powers delegated to the
Executive by the Constitution, Executive Orders have no force not already
provided by laws passed by Congress, and Congress can't pass such a law.

The premise for question 4 is similarly faulty:

 ______ 4) A federal statute may be passed prohibiting a citizen from falsely
shouting "fire" in a crowded theater._

(and)

 _If your response to question four was "True," you have underscored your
belief that the word "no" really means "some."_

Instead of relaxing the meaning of "no" or "speech", we can instead come to
the conclusion that you can't yell "fire!" or, for that matter, defraud people
with radium tonics because it's illegal to knowingly and deliberately coerce
people through deception; it's the action and its intent that's illegal, not
the speech itself.

~~~
bmelton
Regarding 4, to my knowledge, there actually is no law against shouting fire
in a theater. Everyone assumes that there is because of the opinion in Schenck
v. US[1], which more accurately stated insists that falsely shouting fire in a
crowded theater is not insulation against the punishments for fraud just
because it is speech.

So, despite all the hullaballoo about shouting fire in a theater, there is no
(federal) law against it to my knowledge, and to anyone who knows different,
please correct me.

That said, there are no ante facto restrictions on speech within a theater,
crowded or not (much to our collective chagrins), nor are our first amendment
rights in any way curtailed by being in a theater, being in a crowded theater,
or on conversations regarding fire, whenever and wherever, time, place and
manner restrictions notwithstanding -- there are simply expressions that are
not protected by the first amendment, which still does not entitle Congress to
make such laws, even though they already have for other circumstances, and
surely will again.

Edit: The bigger issue to my mind is that Congress has, and routinely skirts
the issue by implementing through regulatory agency rule-making that has the
effective force of law but without requiring such a law to be actually made --
for example, the ability of the FCC to enact decency bans against news
agencies on public airwaves (even thought that is also on Constitutionally
shaky on its own).

[1]
[https://en.wikipedia.org/wiki/Schenck_v._United_States](https://en.wikipedia.org/wiki/Schenck_v._United_States)

~~~
dragonwriter
> The bigger issue to my mind is that Congress has, and routinely skirts the
> issue by implementing through regulatory agency rule-making that has the
> effective force of law but without requiring such a law to be actually made

Agency rulemaking, in order to be valid, requires that it is authorized by
Congress _and_ that Congress has the power in the first place. So, it doesn't
get around First Amendment restrictions by not "requiring such a law to be
actually made".

~~~
bmelton
On paper, you're obviously correct. In practice, that is not nearly always the
case. This is further complicated by Chevron deference, which has often
shielded even the inquiry from getting far enough along in the process to be
substantive.

~~~
dragonwriter
If your initial complaint had been about the Supreme Court finding excuses to
avoid doing its job, rather than about Congress avoiding the need to make laws
to do something by making laws to do exactly what they are supposedly avoiding
making laws to do, I would have been more inclined to agree with you.

~~~
bmelton
Fair. Still, it's a collaborative effort.

A lot of deference was assumed before Chevron, especially post-FDR, and as a
result, Congress + agencies began exploiting that deference more and more, to
the extent that it became somewhat codified in Chevron.

The peril of stare decisis is that to be dutiful, SCOTUS must endeavor to
abide previous decisions even when those decisions abdicated on matters of
law. The net result is that the process is often exploited.

Government's a big system, and I'm as wary to assign a central figure for
blame as I will be hearing my uncle Roger describe any of his crackpot
theories over Thanksgiving dinner this-coming Thursday, but I think it's naive
to say that the government isn't getting away with things on occasion -- the
discussion really is how often, and how much we should care. To that
discussion, I don't aim to be instructive, as my own caring would likely be
considered excessive by most, or perhaps overzealous.

------
1812Overture
Big problem here is that he's missing the primary role of the State. The State
is the organization that has the monopoly on violence in a certain territory.
If you look around the world there are plenty of areas that are "Stateless"
and they tend to have multiple organizations competing (always violently) to
gain this monopoly and become the State. His examples perfectly play into
this: 1900s immigrant communities in New York had violent competing gangs,
Medieval Europe has a crazy high murder rate (as that was a very common means
of dispute resolution), and many black communities are still struggling with
having been abandoned by the State.

What these anarchist arguments come down to is saying that profoundly non-
utilitarian arrangements that have repeatedly shown to be rife with human
suffering are superior to stable first world societies due to adherence to
some hokum about liberty being the most important thing.

~~~
donatj
> hokum about liberty being the most important thing

So if everyone were locked in a cage but safe and sound that would be ideal?
Last I checked the death rate was 100%. I'd take violent freedom, adventure,
and life over safety any day of the week.

~~~
harryjo
You don't get to take "life". You get violent freedom, adventure, and a nasty,
brutish and short life.

------
tomcam
Sure. Now ask yourself where you'd rather invest in property: in the USA,
Russia, China. If you answer "China", "Russia", or "It doesn't matter", you're
also in denial. Because the current real estate bubble is being driven largely
by foreign nationals who are putting their money where their freedom is, and
they are not choosing Russia or China.

The article is well worth reading. It makes some truly provocative points, but
in real life we have to choose between unpleasant options, not an unattainable
theoretical place and unpleasant options.

~~~
johnchristopher
I have to ask: is something going on regarding real estate and Chinese
investors in SF or California ? It's not the first time I read hints about it
on HN.

~~~
rconti
Yes? They've been buying property for some time now. Not just in the US, but
in Canada (Vancouver in particular). Same with Russians buying property in the
UK.

I'm not sure what you found controversial or surprising in the parent comment,
though I haven't read the article because holy dense TLDR.

------
AnimalMuppet
> Specifically, I intend to establish three points: 1) there is no such thing
> as a government of law and not people...

Point 1 is true. And yet, societies that have the "rule of law" function
differently[1] than those that don't, and that difference is very beneficial
to the people living in that society.

[1] Not completely differently, but still substantially differently -
differently enough to matter a great deal.

------
chiaro
There are many laws and rules we have created in the past that seek to be
universally applicable. The golden rule, Kant's categorical imperative, the
non-aggression principle are all attempts at this, and each one has
accumulated an extensive list of exceptions and footnotes. The golden rule
breaks down with masochists, the categorical imperative breaks down with
increasing specificity of the action in question and the NAP flat out ignores
externalities.

The world is too complex for simple rules, honourable though their intentions
may be, and older attempts at this are guiltier than modern ones. The
steadfastness to which America cleaves to an 18th century charter has posed
significant roadblocks to establishing effective policy in the 21st century.
While very readable, the Constitution is frustratingly unspecific. An enormous
effort is spent in "interpreting" it in a way that can support policy, in the
same way that the Bible or Koran is bent to suit the individual ideologies of
their adherents.

With the right to bear arms, all that can really be agreed upon is that "arms"
is something more than a butter knife and something less than nuclear
ordinance. Free speech shall be guaranteed, except when it comes to
advertising speech, fighting words, death threats and the list goes on. In
these debates, the opinions of the framers should be only slightly more
relevant than those of Plato, Hume or Rousseau, and what should dominate the
debate is the actual consequences of the policy in question. What's more, the
absence of certain rights in the constitution has hindered recognition of the
right to shelter, or safety, for example.

When Ruth Ginsberg was asked to recommend new founding policy for a
revolutionary Egypt she said this:

"I would not look to the U.S. Constitution, if I were drafting a Constitution
in the year 2012. I might look at the Constitution of South Africa. That was a
deliberate attempt to have a fundamental instrument of government that
embraced basic human rights, had an independent judiciary. … It really is, I
think, a great piece of work that was done. Much more recent than the U.S.
Constitution."

[http://abcnews.go.com/blogs/politics/2012/02/ginsburg-
likes-...](http://abcnews.go.com/blogs/politics/2012/02/ginsburg-likes-s-
africa-as-model-for-egypt/)

~~~
kemitchell
"Well, daddy, don't you know that things go in cycles..."

Every once in a while, we come up with a new generalization that cuts through
the complexity of current, seemingly intractable problems. With time, they
break down, succumb to exceptions, or lead to blind alleys. Consider
"privacy", which is very new from a legal point of view, but no longer has
quite the same new-rule smell. Compare "consideration" (for contracts), which
has functioned a good long while, but isn't applied universally, and might be
breaking down.

It's a kind of technology. Best case, our advances keep pace with our needs.

But the _pursuit_ of universality, as a principle for rulemaking, has lasted a
good long while. The further we get from the incisive "moment of truth" for a
rule, the less "just" it feels in application. The more the exceptions and
uncertainties, the more we suspect corruption and discrimination. In other
words: The more a rule shows its age, the more those who do not (and,
practically, cannot) understand its subtleties perceive it as arbitrary.

It's a somewhat indulgent, idealistic line of thought. But it gives me hope.
Thought I'd share.

------
kemitchell
Is it "doublethink" to know the legal system is flawed while believing it
_ought_ to be better? Perhaps I'm laboring under "the myth of professional
success"? But don't I just aspire to it?

As for this doublethink, I personally don't hear many strongly held
generalizations about how the legal system works "under the hood". When I do,
the word is either that it's utterly mysterious, or that lawyers don't do much
of anything at all. Not that they do so with any particular rigor.

Perhaps among academics it's different. The folks I hear and read mostly just
complain about cost and poor communication.

And the same could be said of auto mechanics. And programmers. Crises?

------
Const-me
“I suspect that in many ways a free market in law would resemble the situation
in Medieval Europe” — I’m an emigrant from such country. Sometimes funny place
to visit, impossible to live, hard to do business. “Disputants could select
among several fora” — the author forgot about one very important “if”.
Disputants could select among several fora IF they were from the same social
class. The fun starts when they’re from different social classes. In nowadays
Russia, a public prosecutor or a police officer can literally kill whomever he
wants. Unless the victims were from equal or higher social strata, 99% such
cases will be closed, 1% will be presented to a court like “a person assaulted
a public prosecutor and was shot dead as a reasonable self-defense act”.

The western society isn’t stratified that much, almost no one thinks it’s OK
to kill people regardless of how many stars are on the killer’s epaulets.
However, there are still many cases with great asymmetry between two dealing
parties. Like when you buy electricity for your home. Don’t you think your
electricity supplier would love to add “no disputes are allowed, I’m the final
authority” to your contract, if they could? If you don’t like that contract,
they don’t care — you only bring 0.00001% of their income, however they bring
you 100% of your electricity, and in many places you don’t even have much
choice.

~~~
harryjo
> Don’t you think your electricity supplier would love to add “no disputes are
> allowed, I’m the final authority” to your contract, if they could?

They do!
[https://www.google.com/search?q=federal+arbitration+act](https://www.google.com/search?q=federal+arbitration+act)

------
gohrt
This is why I became an engineer instead of a lawyer, when I faced the choice.
I couldn't handle the illogic of law.

~~~
kemitchell
The law is very logical, in the way applied mathematics is very mathematical.
I've a hobby of getting fellow lawyers started in programming. There's nothing
to teach them about boolean logic but some new symbols. Most have all the
instincts for set theory and even graphs, too. Intellectually, those're just a
few of the tools they couldn't function without.

The United States legal systems are massively distributed, fault tolerant,
resource starved systems that consume exclusively dirty input from malicious
users. Like any system that consumes unstructured input, the uncertainty
inherent in how the facts of a situation get mapped to structured conclusions
("questions of fact"), and how the legal rules operate on those inputs
("questions of law") to produce a result, are all infected with that
uncertainty. Few of the facts the system is meant to deal with reduce to
anything so discreet as bitstrings. Legal rules in statutes and even in case
law, like the bit of First Amendment in the article, start out trying to state
rules with all the rigor of a pure function. But law is a highly dynamic,
reprogrammable language. It's Ruby, not C. The statutes aren't the running
state, they're just input.

That's partly why I still program to relax after work. It's satisfying to
address little bits of a problem in isolation, to see my solutions work, and
to know they're reliable. Problem solved.

~~~
joesmo
"The law is very logical, in the way applied mathematics is very
mathematical."

So applied math is not mathematical? Or are you being sarcastic? I don't
understand how you can claim the law is logical when it's constituted of laws
and cases that are completely contradictory and can lead to any conclusion. Or
do you mean that practicing law requires logical skills (rather obvious, IMO)?

~~~
kemitchell
The law is concerned primarily with the practical application of logic. Logic
is a core tool of legal practice, but the day-to-day of practice is mostly
grappling with the uncertainty that comes of applying generalized law to
specific circumstances. At a very high level, you could compare it to
engineering, especially on the transactional side.

Legal theorists---the mathematicians of the legal world---can stick to the
pure forms, and even consider ones with no practical application, without
pesky clients dragging them back to earth. They often get to use more of the
arcane, cutting-edge tools of logic, which is also a branch of philosophy IMO.

At least speaking of the American legal system I deal with, laws and cases
don't lead to just any conclusion. (I would call such a system "arbitrary",
rather than "illogical".) Outcomes are rarely certain, but every time you read
about especially civil litigation, you're usually reading about a case where
at least two sides made big bets they were right.

A few thoughts on inherent contradiction:

1\. Statutes, regulations, and cases cant' be read off the page and
understood. They're just inputs to a system. For instance, statutes are
routinely read very restrictively to avoid conflict with other statutes with
greater authority. Some states will mark laws that are struck down accordingly
in their statute books, but some don't.

2\. When lawyers speak of "The Law", they usually don't just mean written,
statutory law, or even case law. They're referring to the mass of
probabilistic hypotheses informed lawyers hold about how courts and other
institutions will react to regulated situations. Lawyers maintain running odds
on various outcomes that matter to their clients by consuming legal input:
reading case reports, monitoring new legislation, trading stories with
colleagues. A very rigorous logic determines how those inputs affect the odds
under which we all play. It's not simple boolean logic. It's much more
developed than that.

------
tinalumfoil
> They are obviously aware that the law is inherently political... [yet this]
> in no way prevents people from simultaneously regarding the law as a body of
> definite, politically neutral rules amenable to an impartial application
> which all citizens have a moral obligation to obey.

Why should it? There's no law that says rigid absolutes can't come from chaos.
Look at quantum mechanics: a bunch of seemingly random nanoscopic reactions
come together to form an elegant predictable macroscopic world. And why can't
it be neutral? If the Wisdom of the Crowd theory holds any weight (hint: it
does) the misconceptions and biases of a large group of people should cancel
out leaving us with the correct, or in this case most neutral, answer.

Now, of course, there's no denying law _is_ highly political for reasons that
extend beyond Congress being highly political. That said, this is understood
by most people. Did you know TRAP laws aren't actually designed to mark
abortion clinics safer but to make abortions more difficult? So did everyone
else that follows the issue!

------
fl0wenol
I followed this article until it got to arbitration as a suggestion for the
evolution for dispute resolution between private parties.

~~~
kemitchell
I'd encourage you to read a bit more on arbitration. The more people know, the
less they tend to see it black-or-white.

Arbitration is routinely used to place contract parties at an unfair
disadvantage in dispute resolution. It is also routinely used to avoid and
compensate for various shortcomings of the publicly administered, publicly
funded judicial system, which takes years to decide most anything, without the
benefit of any experience in the area. Arbitration also plays a roll in
international disputes, especially for business in countries without effective
legal systems. If you're Russian in 1992, you're not going to attract billions
in outside investment in reliance on your local legal system.

If you'd prefer a high-level metaphor to start: It's perfectly possible to
believe folks should have access to both public and private mail carriers.
Perhaps, as in the US, certain kinds of mail service should only come from the
government; that's up for debate. Maybe certain kinds of mail service
shouldn't be offered at all, like mailing children or dangerous chemicals.

Right now it's possible to litigate publicly (in court) and privately
(arbitration). Consumer and other less-powerful parties can agree to
arbitrate, but courts are very skeptical of such contracts. On the other hand,
if you want to change what public law means for the public at large, you have
to litigate publicly. Neither do we arbitrate criminal matters, though some
plea bargain processes come close, engendering much controversy.

~~~
fl0wenol
If you asked me 20 years ago when this article was written, and the practice
less commonplace, I'd have been more optimistic and open minded about it.

And I agree that contract disagreements between parties can be more easily
settled through a 3rd party with concurrence of those involved. But this
assumes that both parties have roughly equal resources and can't game the
venue.

Our increasing use of private law (including HOAs and similar types of
agreements listed as examples) seems to have absorbed many of the drawbacks of
the systems they supersede while not having that "pomp" that socially-
ingrained Law with a capital 'L' has surrounding it; that which otherwise
empowers the middle-managers of the practice to sometimes interpret the law in
the favor of those with fewer resources.

In private law it's the financial bottom line (who's paying for this
service?), personal whims, groupthink-- forces unchecked because the
practitioners or those coerced into it have no expectations it should be
different.

As far as I know, we have no public arbitration services that are paid for by
taxes or charity for the benefit of those who choose to use it as an
alternative to the state-based justice system.

------
cpursley
If you enjoyed this paper, you'll likely enjoy this:
[https://itunes.apple.com/us/itunes-u/for-a-new-
liberty/id380...](https://itunes.apple.com/us/itunes-u/for-a-new-
liberty/id380694819?mt=10)

------
btilly
Yay!

I saw this article back in 2011. I wanted to re-read it a couple of years ago,
but couldn't find it.

Thank you, HN!

------
vinceguidry
Rule of law can be understood first by taking apart the linguistic
construction, and then by examining the political conditions under which it
emerged. Society is to be ruled by laws, not people. This is not trivial to
accomplish. As they say, freedom isn't free, and neither is rule of law.

I could not take this article seriously because it tries to understand rule of
law by actually examining law, rather than by examining law's place in
society. Rule of law is an appellation given by historians to describe a
society, not a specific legal concept.

Whatever ideological construct we want to order society by, a part of that
society has to be dedicated to actually enforcing that construct. Medieval
England had an innovative institution dedicated towards adjudicating disputes
that came to be known as common law. Local magistrates collaborated to create
a body of judicial decisions and understandings that other magistrates would
respect.

This freed law from the vagaries of local and national politics. The norm in
the rest of the world was that both judges and the law were the sole domain of
the monarch. The monarch picked the judges and the laws and that was that.
What allowed English crowdsourced jurisprudence to flourish was that it was
protected by England's other major innovation, Parliament. Parliament held the
purse strings of the national budget, and the king had to ask Parliament for
money whenever it needed to do things like raise an army. Without Parliament's
approval, the king was limited to using his own land holdings to finance his
affairs. In most of continental Europe, the king was free to tax the citizenry
directly using the army to enforce collection.

What allowed England to do this was its relative isolation from the rest of
Europe, this allowed England enough safety and security to not need a
standing, national army. Instead England was free to iterate on this body of
law and produce a diverse array of commercial contracts that allowed people to
collaborate on business ventures on a scale the world had never seen before.

It also allowed England to, eventually, displace the monarchy as the ultimate
seat of power in their society, replacing that role with the Prime Minister,
who had to rise through the political ranks to his office. Continental Europe
needed their monarchs to pursue national defense, as every European nation was
at constant risk of invasion. Failure to do so resulted in getting conquered,
as Spain was throughout much of the Middle Ages. Civic institutions never
achieved the democratic buy-in that they did in England.

I have written before that rule of law, as we consider it, is a uniquely Anglo
institution, the British exported their legal innovations everywhere they
went. Not having to worry too hard at appeasing their kings gave British
citizens unprecedented ability to contribute to local government. Government
itself was viewed as just another type of legal organization, when
establishing a colony, there was a well-trodden map to governance that was
established by Parliament and slowly perfected over the course of the colonial
period.

It is this series of innovations in the role of government in society over the
course of history that provide Anglo nations with rule of law. The term was
never intended to carry the connotations I often see people ascribe to it. It
is not a property of law, but a property of the society using law. I see it as
having been baked into the very fabric of Anglo society. I do not take
seriously falling-sky pronouncements that the rule of law is under attack by
whatever nefarious political actor. Certainly, we are running hard into the
limitations of our legal institutions, but that's a product of their continued
success. It's a resource allocation problem, not one of defense from attacks
without or within. Eventually the institutions will evolve to meet those
needs.

~~~
TeMPOraL
I'm not sure I agree with you about not treating seriously the issues of rule
of law being under attack. As you said, it's not a piece of legislation, it's
a feature of a society. But like most things in a society, it works because
people trust in it. Living under the rule of law makes me inclined to follow
the rules because I know everyone else will play ball too, and those who try
to gain an unfair advantage will be punished. That the system is not always
efficient - hence some amount of crime and corruption - is something people
generally understand and can live with. But when one sees that law gets
applied unevenly, that people "dedicated to actually enforcing that construct"
can't handle the issue or are themselves corrupt, when some get rich by having
companies that blatantly break the law and _get praised for it_ , one starts
to wonder why they're following the rules in the first place. I see the rule
of law as something that can very well break down fast when the public loses
its trust in it.

\--

An interesting theme in your comment is how _geography_ led to the creation of
the rule of law and moving away from absolute monarchy. England could develop
those because it was relatively safe, while the rest of Europe was constantly
fighting fires. It's a lesson about the importance of stability - when you
don't have to keep fighting for what you have, you can focus on doing
something else. This is one of the reasons I don't buy the libertarian dream -
having to constantly fight for your interests is a tax on attention. We
progress by abstracting things away, even if imperfectly.

~~~
vinceguidry
> But like most things in a society, it works because people trust in it.
> Living under the rule of law makes me inclined to follow the rules because I
> know everyone else will play ball too, and those who try to gain an unfair
> advantage will be punished.

I can't emphasize enough that rule of law isn't just having laws or having
people respect the law. It's specifically about powerful people and what they
can and can't do. Every battle we can point to fought over what we
traditionally call rule of law has been about the relatively less powerful
clawing freedom and opportunity away from the rich.

If you look at it in this regard, it's easy to see that rule of law has only
evolved and grown since the 1700s. There are ever more opportunities to climb
the social ladder in ever more places. We've given women the vote, we've made
good strides against racism. The Magna Carta mostly only protected rich
landowners from the predations of the monarchy.

Britain's battles concerned the ability to enter into contracts, freedom from
arbitrary, executive-driven faux-judicial action. The kinds of shenanigans
that kings pulled to keep people in line and fund its operation. The poor
weren't concerned because they didn't have anything to take, no way to
alienate the king.

When I look at the battles these days, I see nothing but steady, constant
progress in attempting to allow every person the opportunity to thrive.

Much of what we think of as evil now was quite common in colonial times. Only
the steady march of rule-of-law improvements eradicated such abuses.

Another thing that a lot of people don't realize is that the Bill of Rights
had very little judicial impact until civil rights movements forced the
judiciary to actually consider that just having a democratically elected
republican government is not enough to safeguard minority rights. The idea of
minorities having inalienable rights would have been utterly strange in
colonial Britain. One had exactly as much protection from the powerful as they
could afford.

Rule of law was progressive in implementation. First from the king to the
nobility, then from the king and nobility to the merchant class, then finally
to everyone through civil rights.

