Thursday, July 05, 2007

Rule of Law? not the usual jerk of the knee

Apropos of Bush granting clemency to Scooter Libby, there’s a lot of talk about “rule of law”… how it should apply equally to everyone, what a good thing it is.

And I admit to feeling personally outraged when the LA Sheriff let Paris out on medical leave after serving only 3 days of her sentence.

Yeah, there’s been a lot of talk about “rule of law” for some time now. Maybe it’s a George Bush thing.

Anyway, if “rule of law” is another way to say “justice”, then I’m all for it. Only I don’t really think that’s what it’s about. Reminds me of my lawyer of many years ago, Jim Collins – but that would be another story. Anyway, Jim, a notorious and successful criminal defense attorney, made it very clear to me that the legal system is not about justice. (I think it’s about winning.)

Nevertheless, the rule of law is still a huge improvement over using violence to settle disputes. Beats the rule of force any day.

But I’m still not ready to worship at the altar of the Rule of Law. Which, ironically, puts me on the same side of a fence as Georgie B -- for possibly the first time ever.

Law is intended to bring order and predictability – stability, not justice. I think that’s the core of my quarrel with the rule of law: I care more about justice than stability. But I don’t think I’m in the mainstream in this regard.

So what’s the alternative to the rule of law? Janet likes the philosopher king, but that’s not for me either. Is there a free market morality? (Am I going libertarian here?)

There is an arbitrariness to the law that is just unnatural. Logical, to be sure. Even helpful, if it can restrain the likes of Georgie B, but that ain’t lookin’ so likely, is it? ‘Cause it ain’t natural. Just as people knew the persecution of Bill Clinton was legal, but didn’t hold it against him, Georgie knows that when God is on your side, the law of man is trivial. He’s right about the law of man. He’s wrong about God being on his side.

Justice comes from judgments far more nuanced than static laws, which are written in the abstract in hopes of anticipating any possible conflict. But life is infinitely more complex, so judges are left to interpret words far beyond their intended scope.

We do need laws – as some kind of line drawn in the sand to define the boundaries of commonly accepted behavior. But when they get carved in stone – institutionalized as The Rule of Law – we end up with a mechanistic system that treats people like input rather than human beings.

Now this seems to have evolved for rational and compelling reasons: the rule of law had to be strong enough to stand up to the divine right of kings. And, in theory, it should protect us from tyrants in the White House. But, as I observed, that’s clearly not working.

Actually, I think a lot of people would actually prefer a sense of fairness in society over either guarantees of security or order. Security and order are illusory goals – temporary conditions that cannot persist without violating the laws of physics. “Fairness” may be equally illusory, not to mention hard to define in practice – but it really depends upon the human heart (metaphorically speaking, of course, not biologically), not physics. “Fairness” is the sense of trusting one’s community and one’s place in it.

We need to move beyond the rule of law to a continuous, conscious renegotiation of the social contract.