Phil Parker (tigertoy) wrote,
Phil Parker
tigertoy

About "The Rule of Law"

The phrase and concept "the rule of law" seems to come up frequently in discussions these days, and it's usually interpreted, in a very loose reading, as saying "because we pride ourselves on living by the rule of law, we must always follow and enforce the exact letter of the law, even if the law was a bad idea".  In short, it is often implied, because we believe in the rule of law, any time someone breaks the law they must be punished for their crime, or we undermine the rule of law itself.

I've always been uncomfortable about this, but I've had trouble articulating my discomfort the right way.  A small, but to me significant, insight occurred to me a few minutes ago, which I will record for my own benefit and maybe yours too.

The rule of law should mean that any time someone breaks the letter of the law, they should have to answer for their transgression.  The facts should be considered, and the accused should explain his actions.  However, that does not mean that the accused should automatically be found guilty and punished.  In many real world cases, a person can actually break the letter of the law, and yet not merit punishment, if no harm was done or if circumstances offered justification.  The principle of the rule of law is not undermined by actually considering the particulars of each case; it is in fact strengthened.  To be called to answer for one's transgressions is not the same as to be called to pay for them, if we allow for the possibility that the accused could have a legitimate answer other than "I didn't do it".

I've had the feeling for a long time that the rule of law wasn't really such a good idea.  Better than not having any law, certainly, but not the be-all and end-all of government.  I would have said that what we call the rule of law is the starting point for a just society, not the end.  But when I recast it as I did above, I think it becomes something I can believe in wholeheartedly.
Tags: ethics, philosophy
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