The Myth of the Rule of Law by John Hasnas does a great job dispelling the myth of the rule of law.
The long essay makes a strong case against the possibility of the rule of law, and talks about spontaneous justice in communities outside the state justice system.
Excerpts:
The same is true of the violence directed against the nonviolent civil rights protestors in the American South during the civil rights movement. Although much of the white population of the southern states held racist beliefs, one cannot account for the overwhelming support given to the violent repression of these protests on the assumption that the vast majority of the white Southerners were sadistic racists devoid of moral sensibilities. The true explanation is that most of these people were able to view themselves not as perpetuating racial oppression and injustice, but as upholding the rule of law against criminals and outside agitators. Similarly, since despite the . 60s rhetoric, all police officers are not “fascist pigs,” some other explanation is needed for their willingness to participate in the “police riot” at the 1968 Democratic convention, or the campaign of illegal arrests and civil rights violations against those demonstrating in Washington against President Nixon’s policies in Vietnam, or the effort to infiltrate and destroy the sanctuary movement that sheltered refugees from Salvadorian death squads during the Reagan era or, for that matter, the attack on and destruction of the Branch Davidian compound in Waco. It is only when these officers have fully bought into the myth that “we are a government of laws and not people,” when they truly believe that their actions are commanded by some impersonal body of just rules, that they can fail to see that they are the agency used by those in power to oppress others.
The reason why the myth of the rule of law has survived for 100 years despite the knowledge of its falsity is that it is too valuable a tool to relinquish. The myth of impersonal government is simply the most effective means of social control available to the state.
. . . .
It is true that the Crits want to impose “democratic” or socialistic values on everyone through the mechanism of the law. But this does not distinguish them from anyone else. Religious fundamentalists want to impose “Christian” values on all via the law. Liberal Democrats want the law to ensure that everyone acts so as to realize a “compassionate” society, while conservative Republicans want it to ensure the realization of “family values” or “civic virtue.” Even libertarians insist that all should be governed by a law that enshrines respect for individual liberty as its preeminent value.
The Crits may believe that the law should embody a different set of values than liberals, or conservatives, or libertarians, but this is the only thing that differentiates them from these other groups. Because the other groups have accepted the myth of the rule of law, they perceive what they are doing not as a struggle for political control, but as an attempt to depoliticize the law and return it to its proper form as the neutral embodiment of objective principles of justice. But the rule of law is a myth, and perception does not change reality. Although only the Crits may recognize it, all are engaged in a political struggle to impose their version of “the good” on the rest of society. And as long as the law remains the exclusive province of the state, this will always be the case.
XI.
What is the significance of these observations? Are we condemned to a continual political struggle for control of the legal system? Well, yes; as long as the law remains a state monopoly, we are. But I would ask you to note that this is a conditional statement while you consider the following parable.
. . . .
Most people have been raised to identify law with the state. They cannot even conceive of the idea of legal services apart from the government. The very notion of a free market in legal services conjures up the image of anarchic gang warfare or rule by organized crime. In our system, an advocate of free market law is treated the same way Socrates was treated in Monosizea, and is confronted with the same types of arguments.
The primary reason for this is that the public has been politically indoctrinated to fail to recognize the distinction between order and law. Order is what people need if they are to live together in peace and security. Law, on the other hand, is a particular method of producing order. As it is presently constituted, law is the production of order by requiring all members of society to live under the same set of state-generated rules; it is order produced by centralized planning. Yet, from childhood, citizens are taught to invariably link the words “law” and “order.” Political discourse conditions them to hear and use the terms as though they were synonymous and to express the desire for a safer, more peaceful society as a desire for “law and order.”
The state nurtures this confusion because it is the public’s inability to distinguish order from law that generates its fundamental support for the state. As long as the public identifies order with law, it will believe that an orderly society is impossible without the law the state provides. And as long as the public believes this, it will continue to support the state almost without regard to how oppressive it may become.
. . . .
So, what would a free market in legal services be like? As Sherlock Holmes would regularly say to the good doctor, “You see, Watson, but you do not observe.” Examples of non-state law are all around us. Consider labor-management collective bargaining agreements. In addition to setting wage rates, such agreements typically determine both the work rules the parties must abide by and the grievance procedures they must follow to resolve disputes. In essence, such contracts create the substantive law of the workplace as well as the workplace judiciary. A similar situation exists with regard to homeowner agreements, which create both the rules and dispute settlement procedures within a condominium or housing development, i.e., the law and judicial procedure of the residential community. Perhaps a better example is supplied by universities. These institutions create their own codes of conduct for both students and faculty that cover everything from academic dishonesty to what constitutes acceptable speech and dating behavior. In addition, they not only devise their own elaborate judicial procedures to deal with violations of these codes, but typically supply their own campus police forces as well. A final example may be supplied by the many commercial enterprises that voluntarily opt out of the state judicial system by writing clauses in their contracts that require disputes to be settled through binding arbitration or mediation rather than through a lawsuit. In this vein, the variegated “legal” procedures that have recently been assigned the sobriquet of Alternative Dispute Resolution (ADR) do a good job of suggesting what a free market in legal service might be like. (35)
Of course, it is not merely that we fail to observe what is presently all around us. We also act as though we have no knowledge of our own cultural or legal history. Consider, for example, the situation of African-American communities in the segregated South or the immigrant communities in New York in the first quarter of the twentieth century. Because of prejudice, poverty and the language barrier, these groups were essentially cut off from the state legal system. And yet, rather than disintegrate into chaotic disorder, they were able to privately supply themselves with the rules of behavior and dispute-settlement procedures necessary to maintain peaceful, stable, and highly structured communities. Furthermore, virtually none of the law that orders our interpersonal relationships was produced by the intentional actions of central governments. Our commercial law arose almost entirely from the Law Merchant, a non-governmental set of rules and procedures developed by merchants to quickly and peacefully resolve disputes and facilitate commercial relations. Property, tort, and criminal law are all the products of common law processes by which rules of behavior evolve out of and are informed by the particular circumstances of actual human controversies. In fact, a careful study of Anglo-American legal history will demonstrate that almost all of the law which facilitates peaceful human interaction arose in this way. On the other hand, the source of the law which produces oppression and social division is almost always the state. Measures that impose religious or racial intolerance, economic exploitation, one group’s idea of “fairness,” or another’s of “community” or “family” values virtually always originate in legislation, the law consciously made by the central government. If the purpose of the law really is to bring order to human existence, then it is fair to say that the law actually made by the state is precisely the law that does not work.
. . . .
One thing it seems safe to assume is that there would not be any universally binding, society-wide set of “legal” rules. In a free market, the law would not come in one-size-fits-all. Although the rules necessary to the maintenance of a minimal level of order, such as prohibitions against murder, assault, and theft, would be common to most systems, different communities of interest would assuredly adopt those rules and dispute-settlement procedures that would best fit their needs. For example, it seems extremely unlikely that there would be anything resembling a uniform body of contract law. Consider, as just one illustration, the differences between commercial and consumer contracts. Commercial contracts are usually between corporate entities with specialized knowledge of industrial practices and a financial interest in minimizing the interruption of business. On the other hand, consumer contracts are those in which one or both parties lack commercial sophistication and large sums do not rest upon a speedy resolution of any dispute that might arise. In a free market for legal services, the rules that govern these types of contracts would necessarily be radically different.
This example can also illustrate the different types of dispute-settlement procedures that would be likely to arise. In disputes over consumer contracts, the parties might well be satisfied with the current system of litigation in which the parties present their cases to an impartial judge or jury who renders a verdict for one side or the other. However, in commercial disputes, the parties might prefer a mediational process with a negotiated settlement in order to preserve an ongoing commercial relationship or a quick and informal arbitration in order to avoid the losses associated with excessive delay. Further, it is virtually certain that they would want mediators, arbitrators, or judges who are highly knowledgeable about commercial practice, rather than the typical generalist judge or a jury of lay people.
The problem with trying to specify the individuated “legal systems” which would develop is that there is no limit to the number of dimensions along which individuals may choose to order their lives, and hence no limit to the number of overlapping sets of rules and dispute resolution procedures to which they may subscribe. An individual might settle his or her disputes with neighbors according to voluntarily adopted homeowner association rules and procedures, with co-workers according to the rules and procedures described in a collective bargaining agreement, with members of his or her religious congregation according to scriptural law and tribunal, with other drivers according to the processes agreed to in his or her automobile insurance contract, and with total strangers by selecting a dispute resolution company from the yellow pages of the phone book. Given the current thinking about racial and sexual identity, it seems likely that many disputes among members of the same minority group or among women would be brought to “niche” dispute resolution companies composed predominantly of members of the relevant group, who would use their specialized knowledge of group “culture” to devise superior rules and procedures for intra-group dispute resolution. (36)
I suspect that in many ways a free market in law would resemble the situation in Medieval Europe before the rise of strong central governments in which disputants could select among several fora. Depending upon the nature of the dispute, its geographical location, the parties’ status, and what was convenient, the parties could bring their case in either village, shire, urban, merchant, manorial, ecclesiastical, or royal courts. Even with the limited mobility and communications of the time, this restricted market for dispute-settlement services was able to generate the order necessary for both the commercial and civil advancement of society. Consider how much more effectively such a market could function given the current level of travel and telecommunication technology.
. . . .
My personal belief is that under free market conditions, most people would adopt compositional, rather than confrontational, dispute settlement procedures, i.e., procedures designed to compose disputes and reconcile the parties rather than render third party judgments. This was, in fact, the essential character of the ancient “legal system” that was replaced by the extension of royal jurisdiction. Before the rise of the European nation-states, what we might anachronistically call judicial procedure was chiefly a set of complex negotiations between the parties mediated by the members of the local community in an effort to reestablish a harmonious relationship. Essentially, public pressure was brought upon the parties to settle their dispute peacefully through negotiation and compromise. The incentives of this ancient system favored cooperation and conciliation rather than defeating one’s opponent. (38)
Although I have no crystal ball, I suspect that a free market in law would resemble the ancient system a great deal more than the modern one. Recent experiments with negotiated dispute-settlement have demonstrated that mediation 1) produces a higher level of participant satisfaction with regard to both process and result, 2) resolves cases more quickly and at significantly lower cost, and 3) results in a higher rate of voluntary compliance with the final decree than was the case with traditional litigation. (39)
. . . .
The fact is that there is no such thing as a government of law and not people. The law is an amalgam of contradictory rules and counter-rules expressed in inherently vague language that can yield a legitimate legal argument for any desired conclusion. For this reason, as long as the law remains a state monopoly, it will always reflect the political ideology of those invested with decisionmaking power. Like it or not, we are faced with only two choices. We can continue the ideological power struggle for control of the law in which the group that gains dominance is empowered to impose its will on the rest of society, or we can end the monopoly.
Our long-standing love affair with the myth of the rule of law has made us blind to the latter possibility.
I’m not sure how to reconcile his “Myth of the Rule of Law” with his 2006 winning of the Bastiat prize for an essay supporting the rule of law, but I think here was using the idea of the Rule of Law as a counterweight against Activist Judges.
Also by John Hasnas, Philosophical Case Against Corporate Criminal Liability
* Corporate criminal liability does not serve any legitimate purpose of punishment.
– retribution (It’s the owners, not the guilty people who are punished, and by definition, a coorporation is the seperation of ownership and control.
– deterrence (while it is a deternent, it is not deterrence by punishment of the guilty. Corporate criminal liability as deterrence is analogous to punishing parents for the crimes of their teenagers)
– rehabilitative (punishing the owners for the crime of employees is only rehabilitative in the sense of group punishment — the guilty along with the innocent)
@ 16:00 he makes a now-incorrect predition of Enron — that they won’t be prosecuted.
* No limit on discretion. No difference in evidence and burden of proof to charge individuals vs. coorporation. It’s entirely up to the discretion of the prosecutors and rife with abuse. Also corporations cannot control all their employees. Corporate criminal liability ensures innocent will be punished along with guilty.
* No difference in harm caused by individual vs. corporation. Individual criminal liability is a stronger deterrence than coorporate criminal liability. (Civil liabilities and regulations still exist.)
Why do we have it?
Supreme Court argues it’s a matter of public policy — more effective law enforcement. But this cannot (should not) override our protection of innocent people.
@ 29:00 Corporate criminal liability actually forces corporations to cooperate with Dept. of Justice, and PROTECTS guilty individuals.
Today the crime is not the criminal act, but failure to cooperate, and the punishment is a corporate endictment, which can be a death sentence.
Purpose of corporate criminal liability is to enlist corporations into the service of the “justice” system.
What’s so bad about this?
State unrestrained. Cost of law enforcement exported to private sector. No limitation to regulations.
@ 33:15 Example: KPNG investigated for tax sheltering which it camed was legal. Under threat of endictment, KPNG caved in, admitted guilt, did everything it could to help feds prosecute employees, partners, including refuing to pay attorney fees. Many of the partners thought everything they did was legal b/c KPNG’s legal department kept telling them the tax shelters were legal. KPNG ruined their defense. Pre-existing contract threatened to fire KPNG employees who disagreed with the company indictment of some of its employees.