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3025 words total, less than 1/2 of 1% in Latin, three (3) footnotes, one (1) lengthy digression. |
The Rule of Jaw
Craig Goodrich
Rant Magazine
April 1999
"It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?"-- James Madison, Federalist #62
Well, the Great Impeachment Circus has folded its tent and left town. As usual, a couple of members of the Famous Slick Willie Trapeze Troupe fell on top of the roustabouts, but its star attraction performed his flips and spins flawlessly. So pretty much all that's left for the local pundits to do is wander around the empty field analyzing the leftover manure from the trained donkeys and elephants while waiting for the Next Big Show to arrive.
For example, there's been a lot of commentary about the Congress' sudden rediscovery of the Constitution, most of it pointing out quite rightly that nobody in the Federal Government has paid any serious attention to that document for the better part of a century.
One cliche, though, that didn't inspire as much punditry as it should have was "the rule of law." It turns out that for a long time nobody in the Federal Government has been paying any serious attention to this concept, either.
It's much more than a question of, for example, applying the same standards to the behavior of the political elite that we do to Joe Sixpack, though that's an important part of our Western tradition, and it was only about four years ago that the Congress got around to making itself subject to some of the same rules and regulations they so freely inflict on their constituents.
It's a question of the nature of Law itself, and its relationship to whatever it is our governments at various levels think they're doing.
We teach our children to "obey the law." An answer to the question "why do I have to do that?" is frequently "it's the law." But why, really? It's not simply that some constituted authority made a decree and we are therefore morally obliged to comply: the 19th century Fugitive Slave Laws and the Nazi Judengesetz were both enacted by duly constituted, democratically elected governments, yet we believe we would be morally obliged to defy these laws if we were subject to them.
This question has been addressed by philosophers for at least 2500 years. The most ancient answer is religious: the Law is legitimate and binding on you because God says so. This is the account of the origin of the Ten Commandments (Exodus 20:3-18) as well as the less well-known but fascinating additional laws revealed by God on the same occasion (Exodus 20:22-23:19).
An even older example is the Code of Hammurabi (ruler of Babylon from 1795 to 1750 BC), who had the laws of the city engraved on a huge stone tablet and placed in the public square. Hammurabi explained, "then Anu ['the Sublime' etc.] and Bel ['the lord of Heaven and earth'] called by name me, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land ..."
The more modern answer is that certain specific principles of behavior must be followed in interpersonal relationships in order to facilitate the cooperation necessary for humans to survive in a world where most of the solid surface not covered with ice is inhabited by tigers and such.
The Institutes of Justinian, the definitive compilation of the laws of Rome, published in the sixth century AD (I only said more modern, right?) describes the principles this way (Book 1, Section 1):
Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere.
("The precepts of the law are these: to live honestly, to injure no one, and to give every man his due.")Contemporary scholars studying the English Common Law, which arose out of Saxon tribal customs and Norman feudal institutions, have come to essentially the same conclusion: that its underlying principles are a) respect others' persons and property, and b) do what you promise to do. And indeed it appears that these principles are shared by every legal system known, from nomadic Bedouins in the Sahara to the Quechua of the Andes. For that matter, these same principles are clear to every parent who has told his child, "Don't hit your sister! Go do your homework!"
In this sense, the law is "natural," like language and the free market: it's what happens when you leave people alone. Just as humans living together need a means of communication and are predisposed to use highly-structured vocal noises for that purpose, just as they need an efficient method of taking advantage of the differing talents of individuals in the community and are predisposed to exchange for that purpose, so they need a nonviolent conflict-resolution mechanism and are predisposed to a system involving the application of universal ideas of fairness by an impartial judge. The law is originally an example of "spontaneous order," a system that arises without conscious design or central direction when individuals interact freely with each other.Digression
So the classic answer to "why should I obey laws?" is that a) they make sense, since they are based on universal rules for human interaction, and b) they have so far succeeded in maintaining reasonable peace in our community, since their particulars grew out of our local traditions and the settlement of actual disputes.
This was the essence of the legal system we inherited at the time of the Revolution, and since it was based so largely on logical reasoning from fundamental moral principles, it was sensible, coherent and relatively simple, and most people regarded it as a source of wisdom.
British political thinker Edmund Burke wrote that in America, "all who read, and most do read, endeavor to obtain some smattering in that science [law]. I have been told by an eminent bookseller, that in no branch of his business ... were so many books as those on law exported to the colonies." And one British general in the Colonies complained that Americans are impossible to bully "because they are all lawyers."
The Law, then, was stable, comprehensible, widely known, and universally applicable: King Henry II was as much bound by the law in the 12th century as the villeins working in the fields; so was George III half a millennium later.
One problem with Parliaments and Congresses, though, is that they come to think their job is to make new laws for every occasion, and to act as though they were the legitimate source of the law.1
James Madison and his friends were acutely aware of this problem. When he wrote the lines cited above, he was acquainted with the previous century's power struggle between the British monarchy and the Parliament, which ended with near-total victory for the parliamentary faction. The common law survived, but the Parliament began to behave -- surprise! -- like a gang of politicians, and passed mercantilist legislation that favored the legislators' wealthy merchant supporters in London by essentially forcing the colonists to do all their trading through them.
After they drove the British out, our revolutionary forbears wanted to make damn sure nothing like Parliament's self-serving delusions of grandeur could ever happen here. So when they wrote up a constitution for the new government, they tried to ensure that it would be very difficult to pass any new law:
First, the proposed law would have to be approved by two different houses of Congress, composed of representatives selected by quite different processes -- members of the House were directly elected; Senators were appointed by State legislatures -- and then approved by the President. And every legislator, the President, and every other Federal official were to swear on the Bible to uphold and defend the Constitution.
Second, the Constitution was written specifically to restrict Federal authority to two basic areas of concern: foreign policy and relations between the States. This still was not stringent enough for several of the States, so the first US congress added ten amendments to the document, the effect of which was to prohibit any direct Federal interference in the private lives of its citizens. The first of these amendments begins, "Congress shall pass no law ...." Perhaps they should have just stopped there.
But it didn't work. In 1798 -- less than seven years after the Congress assured the states that it "shall pass no law ... abridging the freedom of speech, or of the press," the Federalists passed the Alien and Sedition Acts, which made it a Federal crime to criticize the Federal government, and John Adams signed it into law. The Jeffersonian Republicans bitterly attacked it as unconstitutional; Virginia and Kentucky accused the Federalists of breaking faith with the States and the people, in strong language that barely concealed a threat of secession.
(Two hundred years later, in our more enlightened age, the chief spokesman of the party Jefferson founded -- now called the Democrats -- is trying to make it a Federal crime to criticize incumbents without -- now get this -- approval from politically-appointed Federal bureaucrats. House Minority Leader Dick Gephardt: "What we have is two important values in direct conflict: freedom of speech and our desire for healthy campaigns in healthy democracy. You can't have both." How much more sophisticated we've become! Or how much more gullible.....)
Eventually the Alien and Sedition Acts were permitted to lapse (in 1802), but the die was cast. The mindset that says "laws come from the government" was already firmly established by the time of the Civil War, which was basically a conflict over which government got to make the laws.
But this still wasn't good enough. Actually passing laws had two great disadvantages for our political class:
First, it was a slow process. Every jot and tittle had to be worked out by both houses of congress, then the differing versions of the legislation had to be reconciled and voted on again, and then signed by the President. This can make for a heavy workload if you're out to "run the country" instead of just providing an orderly setting in which it can run itself.
Second, politicians' votes were recorded and could be used by their opponents if the new law proved unpopular. The politician might actually have to admit he made a mistake -- horrors!
Luckily as in so many other areas, the New Deal saved the day. After Franklin Roosevelt's harebrained intellectuals managed to prolong the Depression by aborting the fledgeling recovery of 1933, his administration's alibi was that it couldn't act quickly enough because of the lawmaking process, and proposed that broad regulatory powers be granted to the all-knowing experts who ran the New Deal's agencies.
What a fantastic idea! The politicians in Congress simply delegate their lawmaking authority to a bunch of Dedicated Public Servants in Washington, and it solves both problems at once!
Regulations can spew endlessly forth from Washington now, because lawmaking isn't restricted to a mere 535 politicians who are already busy investigating the ecology of Caribbean golf courses and raising money for their next campaign. You can fully utilize the talents of the (now) nearly 120,000 bureaucrats and clerks in Washington's rich alphabet-soup of agencies. The lifelong dream of every elitist can finally be realized: "If it moves, regulate it. If it doesn't, tax it."
And the politicians can't be held accountable for the disasters these regulations cause; all they voted on was a vague statement of good intentions and an appropriation (just a teeny one, too; probably only five or ten billion dollars). As a bonus, if the regulatory agency causes a problem for one of their constituents, they can get credit for being helpful by leaning on the regulator to bend the rule, just as a favor -- a favor which the politician will repay by voting to give the cooperative agency even more of his constituents' money when the next budget rolls around.
Everybody wins. The special-interest busybodies inside the Washington Beltway no longer have to lobby a diverse collection of legislators; they can just cozy up to their favorite bureaucrats.
The career bureaucrats themselves -- since they can make, interpret, and enforce their own decrees -- enjoy an arbitrary power that would make one of Louis XIV's ministers jealous.
And the politicians, freed from all actual responsibility, can get back to the important business of socializing with their major contributors: promoting the Rule of Jaw.
Of course, the average citizen may not be quite so happy with the situation. He finds himself paying for an air bag in his car that he doesn't want and might kill his kids, but he can't turn it off without explaining why to one of the regulatory inquisitors in Washington.
He has to pay two or three times as much for air conditioning that doesn't work as well as it used to, because some bureaucrat at the EPA needed to seem to be doing something useful.2 So the bureaucrat found some wild hypotheses about ozone and banned Freon. The mere fact that man-made fluorocarbons are now believed to have no perceptible effect whatever on atmospheric ozone makes no difference; it's The Law because His Excellency the Third Assistant Director says so!3
And on and on and on, through the global warming hoax, the new antitrust theory of the week, the FDA's murderous lethargy in drug approval (it was originally established just to check the labeling on drugs), and all the rest of the 90,000 pages of the Federal Register. Stacking that up with the additional huge load of letters of interpretation and explanation would make a pile nearly as tall as the Washington Monument.4
Or maybe the average citizen really just loves the idea that every aspect of his life is run by one or another nagging special interest group in Washington -- or in Montgomery or Nashville or Sacramento, since the State governments have learned the trick, too. We've come a long way since the Kentucky and Virginia Resolutions against the Alien and Sedition Acts, haven't we?
Perhaps this will go down in history as the greatest achievement of the American Experiment: to have moved in hardly two centuries from a libertarian republic, through a sort of democracy, to an almost oriental system of capricious despotism-by-committee, without the citizenry even noticing it.
At least when the Soviets adopted the same system in 1917, it was in all the newspapers....
Notes
- On the "naturalness" of law, that is, the existence of normative laws of behavior independent of legislation, F.A. Hayek writes, in Law, Legislation and Liberty,
Law in the sense of enforced rules of conduct is undoubtedly coeval with society; only the observance of common rules makes the peaceful existence of individuals in society possible. ... Such rules might in a sense not be known and still have to be discovered, because from "knowing how" to act, or from being able to recognize that the acts of another did or did not conform to accepted practices, it is still a long way to being able to state such rules in words.
But while it might be generally recognized that the discovery and statement of what the accepted rules were (or the articulation of rules that would be approved when acted upon) was a task requiring special wisdom, nobody yet conceived of law as something which men could make at will. It is no accident that we still use the same word 'law' for the invariable rules which govern nature and for the rules which govern men's conduct. They were both conceived at first as something existing independently of human will. ... they were regarded as eternal truths that man could try to discover but which he could not alter.
To modern man, on the other hand, the belief that all law governing human action is the product of legislation appears so obvious that the contention that law is older than law-making has almost the character of a paradox. Yet there can be no doubt that law existed for ages before it occurred to man that he could make or alter it. ... A 'legislator' might endeavor to purge the law of supposed corruptions, or to restore it to its pristine purity, but it was not thought that he could make new law. The historians of law are agreed that in this respect all the famous early 'law-givers', from Ur-Nammu and Hammurabi to Solon, Lykurgus and the authors of the Roman Twelve Tables, did not intend to create new law but merely to state what law was and had always been.
Citation courtesy of Roderick T. Long of the Free Nation Foundation
That is, under the traditional view, the role of the legislator is to clarify specific details of the law -- the extent of punitive damages for negligence, for example -- rather than to create laws ex nihilo -- for example, propounding an entirely new theory of negligence.
- Never allow a bureaucrat to fear for his job; it's more dangerous than cornering a rattlesnake. For example, it was unemployed Prohibition bureaucrats who succeeded in criminalizing marijuana in 1937. Or what about all the NATO bureaucrats worried about what to do now that Russia can't fight its way out of a paper bag -- they hit on the idea of bombing Serbia. (Yeah, hey, that should keep us in business a couple more years, anyway. Great!)
- And he's an expert, right? Well, no, actually, seven of the eight EPA administrators since its founding and seven of its nine assistant administrators have been (what else?) lawyers...
- Not a very stable pile, though -- the regulatory interpretations shift with every political wind, so what you could do yesterday can get you jailed today. And then the politicians complain that American business isn't as good at long-range planning as the Japanese...
Digression advisory: Reduced relevance
This warning required by the Federal Inter-Agency Taskforce on Expository Coherence.This is not simply an academic hypothesis about prehistoric times, either; there is the comparatively recent and well-documented example of the Law Merchant, which developed in Europe in the 11th century: "a transnational system of customary law enforced by informal courts of Piepowder (from pieds poudres, or dusty feet), which first appeared at the Champagne [trade] fairs and soon spread all over Europe, becoming more systematic as they did so." (Albert Loan of GMU)
At this period commerce in fabrics, spices, metals, and so on was growing rapidly between the various feudal kingdoms of Europe, the Middle East, and North Africa. The problem was how to settle contract disputes between the itinerant traders and merchants who might be subjects of different (or no) kings, since few traders were willing to risk being judged by a foreign court -- a court which probably would not have any detailed understanding of commercial issues anyway. The solution was a court system run by the merchants themselves, in which the judges were other merchants and traders, and where punishment for refusal to accept the court's decision could amount to no more (and no less) than a sort of boycott or "exile" from the trading community.
At about the same time, commercial shipping in the Mediterranean was also growing rapidly, and the practical problem of everyday communication between sailors, traders, and longshoremen arose. After the disintegration of the Roman Empire, there was no longer a single unifying dominant culture in the major trading ports. Once again, a solution arose spontaneously from the interactions of ordinary people: lingua franca, "the language of the Franks [Europeans]" -- a pidgin of various Italian, Greek, and Arabic dialects, shorn of the complex verb-tense systems needed for narrative literature but rich in terms relating to ships, cargos, and business transactions.
In summary -- to end this lengthy digression -- the reestablishment of international trade in the 11th century gave rise to new situations, to which the existing institutions of the feudal world were inadequate. So new institutions arose, quite spontaneously, from the varied cooperative interactions of the participants, totally without any central control, authority, or planning. There was no Grand Imperial Twenty-Year Plan to establish an international court system, nor any Exalted Sultan's Advisory Committee of Vizirs to create a trade language, just thousands of ordinary people using their individual intelligence and creativity to meet the challenges of their everyday lives. And -- as usual -- it worked.
Computer guru Craig Goodrich lives in a house in the woods in Elkmont, with his wife, two children, and four cats. He is a representative-at-large of the Libertarian Party of Alabama, a smoker, and a gun owner.