The Rule of Law

The Rule of Law is a phrase that gets tossed around and we will hear it a lot this week. The words make it sound like it is chiseled in stone somewhere independent of human change. In fact, the rule of law is a dynamic series of written and unwritten restraints that compel us to behave in a certain way. We accede to these restraints because it is nice to know that there is a definition of where the tip of my nose begins, and the arc of a moving fist begins. So, where does it originate? Is it a codified moral sense of what is right and what is wrong? Is it the civil byproduct of religious beliefs – i.e. The Ten Commandants? Or is it both?

Aaron Burr, a reviled member of the Founding class made the following statement, “Law is whatever is boldly asserted and plausibly maintained”. There is an element of truth to this, and it’s implications should frighten us. Our faith in the law stems from a belief that it reflects a sense of fairness that is innate and requires only that we reveal it. If it is simply the byproduct of bold assertions, I can make the case that the gangs of Haiti and the cartels of Mexico are making bold assertions and maintain their plausibility through violence and murder.

The law can be arbitrary and quite often does not reflect the public sentiment. Changing laws is an arduous and byzantine process, and typically lags behind social change. In the past, civil disobedience has been an instrument of change that reformed racist laws that reflected the worst impulses of our society. The difference between civil disobedience and the actions on Jan 6 of 2021 on our Capitol steps is that an act of civil disobedience acknowledges the rule of law while defying a particular strand of it’s dictates. Riots and violence reject the rule of law. They may arise from the legitimate frustrations of a group of people but violence tears at the cloth of our civil society. It does not attempt to mend what it believes is ripped.

Finally, politics is how we change laws. We elect people whose ideas and interests coincide with our own and hope that they will make changes that reflect our values and add them to the codified Rule of law.
Today we have a pollical class whose contempt for the rule of law is apparent. One can only hope that they do not ascend to political power. The rule of law is not always right, and it is not always fair, but we are all far better off if we respect it even if we wish to change it. It is the byproduct of bold assertions of what is right and what is wrong and must be plausibly maintained through peaceful rather than violent means, and through a political process that reflects its tremendous benefit to us all.