I think the virtue of the rule of law is in contrast to the rule of men in how those in power behave, i.e. there being pre-agreed upon rules laid out that people know to follow and can point to when some debate of wrong doing arises, as opposed to whomever is in power at the moment getting to arbitrarily make up what the rules are. Rule of Law describes the behaviors of those in power, not necessarily the obligations of the subjects.
What we saw with the COVID mess was a good example of not having the rule of law. Officials passed arbitrary mandates and requirements with highly questionable legal backing to their right to do so. If mandating e.g. work places demand employees get vaccines or be fired was legal, they wouldn't have had OSHA try to enforce it. If they were following the rule of law they would have been able to point to exactly what paragraph in the legislation said "We can do this".
You are quite correct that there is no moral reason to comply with unjust laws. Importantly, just like regularly enforced laws are evidence for the justice of the law, the lack of Rule of Law is evidence for the injustice of demands from those in power. If those in power cannot or will not put their rules in place through the agreed upon processes for doing so, that is very strong evidence for not obeying being morally preferable.
Agreed. I would add that the tendency of virtually all legislators - both federal and state - to massively delegate (I would argue that it is unconstitutional to do so) is a violation of the rule of law. We saw a great deal of this during covid (how many people still believe that the CDC is a law-making, governing and authoritative body??) - that was revealing and should certainly been eye-opening, but it is not a new problem.
I can't see any bright line between, Laws, Rules, Protocols and operating guidelines. I also can't see a fundamental difference between unjust laws and a bunch of dumb-ass rules that just piss me off.
Libertarians never seem to use examples of people working on large projects that require a high degree of co-ordination and co-operation between a large number of people. Isn't that what a society IS ? The construction worker doesn't get to ignore the building plan because there's a bunch of dumb stuff in it he doesn't understand, nor the soldier in the army, nor the sailor on board ship.
A decision to ignore the rules could only rationally be made on the basis of having the information that hardly anyone ever has. Your decision to break the rules and do your own thing might not be a cover for evil doing but could very easily be a cover for simple laziness that gets disguised with self serving righteousness.
Your examples aren't very relevant when we are talking about laws. The construction worker can just choose not to work on that job, the soldier can leave the army, the sailor can not board the boat (this is more complicated if the boat is at sea of course). In these examples both sides have voluntarily entered into the agreement. The arrangement between a citizen and its government is much less voluntary as leaving the country is much more difficult.
Additionally, other than the soldier in the army, the punishment in your examples is not going to be jail or death as it often is when breaking the law. At worst the penalty is financial.
I don't agree with Bryan's argument in this post, but there are definitely bright lines between Laws, Rules, Protocols, and operating guidelines.
(Also in all your examples there are plenty of edge cases where the person can justly refuse to follow the plans)
"the sailor can not board the boat (this is more complicated if the boat is at sea of course)."
Isn't that the situation that we are all in, some sort of a ship at sea ? "There are no passengers on spaceship Earth, we are all crew" said Carl Sagan. On less cosmic level The Ship of State was one of Plato's metaphors. It's a ship no individual chose to board but if we want to live we have to live with it and on it, it sinks we all die. there are some ways off the ship of course, suicide being the most obvious. We could flee to another society but that would just be swapping one ship for another and starting off again with the added disadvantage of being a foreign alien. The real heroes are the very small number who reject society totally and just walk out to become desert hermit or mountain monks. Not being in society they can't be rewarded or punished by it. they are much braver than the libertarian who hangs around believing they are entitled to break what ever rules they don't like but expect to profit from society as a whole. The terrible price an exile or a hermit must pay shows that written laws DO fade off gradually into social rules, etiquette, protocols and guidelines. People suffer in many ways by breaking them and profit greatly by following them and not just financially. for many people social death can be a prelude to literal death. How many people are killing and being killed RIGHT NOW , (themselves and others) for breaking social codes ? Very few can survive outside of society.
The whole reasoning would (maybe) be interesting if most of the existing rules (I would even say if any of the existing rules) followed a sensible "social building plan". They just don't do that.
So your reasoning is kind of "if rules were what they are not them, maybe, following them would make sense"
Bryan, you've lived most of your life in the US, which may not be a rule-abiding as Germany or Japan, but certainly moreso than much of the world. I think you'd appreciate the rule of law more if you lived somewhere without it.
Rule of law refers to a political philosophy about a just structure of governance; it is not the same thing at all as a general duty to respect actual existing law. In fact, the concept of "rule of law" has been explicitly used throughout the centuries to argue against existing unjust laws and systems of government.
At its most basic form, rule of law refers to particular procedural characteristics of laws, such as general and equal applicability, non-retroactivity, transparency/publication (i.e., people need to know what the laws are), certain and uniform enforcement (i.e., not selectively enforced), etc. For example, a retroactive law enacted to criminalize the past conduct of a specific person disfavored by those in power would very much not accord with the rule of law. Rule of law says that those attributes of retroactivity and non-generality are enough standing alone to make the law unjust, regardless of the substantive content of the law.
On the flip side, a law may satisfy all the criteria for rule of law and still be substantively unjust. Rule of law does not guarantee the propagation of laws that accord with all aspects of justice and does not say anything about a duty to obey or disobey substantively-unjust laws. (Some broader theories also include respect for individual rights and democracy as characteristics necessary for rule of law, but I tend to think that makes the concept too fuzzy and prefer the traditional definition. I see rule of law as a limited concept that speaks to the necessity of very particular values for a just system of governance, not as a comprehensive definition that encompasses all values necessary for a just system. In that framework, respect for individual rights is no less important to creating laws that are actually just simply because it's not part of the rule of law concept.)
This is right. I think Bryan's point is good, but I agree that the phrase "rule of law" is maybe not the right one to make that point. When thinking about the rule of law, think about the Magna Carta - and again, COVID is a fantastic example of the rule of law being essentially suspended (in WA state, it is STILL suspended, and governor Inslee still claims "emergency" powers!). I also think of the rule of law as speaking to consistency within the law. I was not a fan or supporter of Trump, but during Trump, I think Democrats provided some amazing examples of violating the rule of law - if you pointed out that Trump was treated very differently from any democrat (Obama being the best example) doing the same things - you were accused of arguing "whataboutism."
But "whataboutism" is simply the rule of law. If it is illegal for everyone to do X, but the prosecution of that law is arbitrary (or personal, or political), then the law is meaningless except as a tool for stifling opposition. What's important about the rule of law is that it applies to everyone equally (the blindfolded woman holding the scales of justice), and that it applies to the law-maker as well as the citizen (the magna carta).
Is "rule of law" really about random individuals obeying even when they could get away with breaking the rules? It's definitely not the typical usage. The Encyclopedia Britannica defines it as: "the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power", which is a good thing from a libertarian perspective.
Arbitrary power and government means your post might get you imprisoned by the state with no recourse. Your "righteous scofflaw" calculus goes from something you have to use occasionally (when confronted with a bad law), to nearly-constantly (whenever you take any action that might be noticed by someone else).
Rule of Law is much more important when applied to officials rather than citizens. The rightious citizen can work out what's good and break laws in order to bring that about. But government officials almost never can.
What you miss is that it is often more important that everyone follow the same laws than that anyone follow the right laws. E.g., traffic laws. If everyone followed the traffic laws they believe most just and efficient, even if the average person's private traffic laws were better than the ones we currently have, it would be disastrous, because the most important thing about traffic laws is that we all follow the same ones, even if they are imperfect. Same with property rights. Following from Coase's theorem, it's more important that property rights are assigned than how they are assigned. A society where everyone has and acts on his own ethics of property rights will be rife with violent conflict and economic uncertainty. It's better for everyone to submit to the same property rights system that each thinks is in some way unjust than for each person to follow his own conscience.
I think you assume that which rules are just or unjust is self-evident to everyone. Once one realizes that people have wildly different ideas about what a just or unjust law is, and (contrary to your claim) that many people will, in fact, interpret the righteousness of a law according to their own self-interest, the case against rule of law weakens considerably.
The main issues here with libertarians, I think, are 1) when the rule of law is enforced unequally by those in power to coerce some unfairly targeted people but not others (no "equal justice under the law"), and 2) rule of law as a means prevent general lawlessness of the type we see in some failed states. Most libertarians would agree that clearly unjust laws should not be obeyed.
So much wrong here. If one finds a law to be unjust, we have this process of organizing with others to elect government officials to work on that. Some of them are actually called…lawmakers!
This has been done successfully quite a few times. Did not require lifetime DIY. Shows support for a system that has been improving for hundreds if years. Just a thought!
We could instead go for anarchy. But given availability of a constitutional republic, doing so would make one an ignorant ass.
This is why I believe that a minimum of laws is necessary. Each unjust (or unnecessary) law undermines the people's sense of the legitimacy of the state. The fewer the laws, the more focus can be placed on making the right ones. Every time, the state makes people train for 100's of hours to become a hairdresser, I take it a little less seriously.
The flaw in Thoreau's argument with which you start and base your essay is assuming we all have the same conscience that holds the same (or at least similar enough) views as to what is right and wrong. My own life experiences (and my readings of others') have sadly demonstrated to me this is very often _NOT_ the case.
I'm not saying we should all be slavishly obedient and not listen to our conscience, but laws and common customs are important. And where law and conscience might be at odds, or at least in need of careful consideration of circumstance, we have that wonderful system of Common Law evolved by the Brits and Americans - in which law, custom, and conscious are explored on a case by case basis to try and discover what should be done, or what is a proper remedy. Though sadly, the Common Law system is badly decayed and often ignored now and a more slavish obedience to administrative law (another term is Napoleonic Code) seems to have fallen into place pretty much everywhere.
This reminds me of the “the law of anarchist calisthenics" from James Scott's Two Cheers for Anarchism. He recommends finding way to break small laws whenever possible to prepare you psychologically to break important laws when the time comes. As a compulsive rule follower, I think this is a valuable pratice.
I agree that citizen do not need to obey unjust laws. But what is an unjust law? I reason laws not passed through a legitimate process and laws that violate Constitution limits on individual liberty are unjust. That said I still might follow such laws if I judge it not worth my time and money to be arrested or fired.
There's some subtlety here. Is your advice really: "take a cursory look at a law and decide yourself whether it's worthy of being obeyed"? While there are many, many stupid and unjust laws on the books, some of them have real value. Do we really want people to decide for themselves which is which? Lots of people would look at piracy laws and decide they aren't hurting anyone by using a file sharing site to avoid paying for a movie. Others might think that killing an adulterous wife is valid. In the recent COVID situation, requiring lock downs and masks probably was unwarranted, but there could be cases where it is totally warranted if the virus was more deadly and more contagious. I don't have the answer, but telling people to pick and choose what laws to obey seems over-simplistic.
I think the virtue of the rule of law is in contrast to the rule of men in how those in power behave, i.e. there being pre-agreed upon rules laid out that people know to follow and can point to when some debate of wrong doing arises, as opposed to whomever is in power at the moment getting to arbitrarily make up what the rules are. Rule of Law describes the behaviors of those in power, not necessarily the obligations of the subjects.
What we saw with the COVID mess was a good example of not having the rule of law. Officials passed arbitrary mandates and requirements with highly questionable legal backing to their right to do so. If mandating e.g. work places demand employees get vaccines or be fired was legal, they wouldn't have had OSHA try to enforce it. If they were following the rule of law they would have been able to point to exactly what paragraph in the legislation said "We can do this".
You are quite correct that there is no moral reason to comply with unjust laws. Importantly, just like regularly enforced laws are evidence for the justice of the law, the lack of Rule of Law is evidence for the injustice of demands from those in power. If those in power cannot or will not put their rules in place through the agreed upon processes for doing so, that is very strong evidence for not obeying being morally preferable.
Agreed. I would add that the tendency of virtually all legislators - both federal and state - to massively delegate (I would argue that it is unconstitutional to do so) is a violation of the rule of law. We saw a great deal of this during covid (how many people still believe that the CDC is a law-making, governing and authoritative body??) - that was revealing and should certainly been eye-opening, but it is not a new problem.
I can't see any bright line between, Laws, Rules, Protocols and operating guidelines. I also can't see a fundamental difference between unjust laws and a bunch of dumb-ass rules that just piss me off.
Libertarians never seem to use examples of people working on large projects that require a high degree of co-ordination and co-operation between a large number of people. Isn't that what a society IS ? The construction worker doesn't get to ignore the building plan because there's a bunch of dumb stuff in it he doesn't understand, nor the soldier in the army, nor the sailor on board ship.
A decision to ignore the rules could only rationally be made on the basis of having the information that hardly anyone ever has. Your decision to break the rules and do your own thing might not be a cover for evil doing but could very easily be a cover for simple laziness that gets disguised with self serving righteousness.
Your examples aren't very relevant when we are talking about laws. The construction worker can just choose not to work on that job, the soldier can leave the army, the sailor can not board the boat (this is more complicated if the boat is at sea of course). In these examples both sides have voluntarily entered into the agreement. The arrangement between a citizen and its government is much less voluntary as leaving the country is much more difficult.
Additionally, other than the soldier in the army, the punishment in your examples is not going to be jail or death as it often is when breaking the law. At worst the penalty is financial.
I don't agree with Bryan's argument in this post, but there are definitely bright lines between Laws, Rules, Protocols, and operating guidelines.
(Also in all your examples there are plenty of edge cases where the person can justly refuse to follow the plans)
"the sailor can not board the boat (this is more complicated if the boat is at sea of course)."
Isn't that the situation that we are all in, some sort of a ship at sea ? "There are no passengers on spaceship Earth, we are all crew" said Carl Sagan. On less cosmic level The Ship of State was one of Plato's metaphors. It's a ship no individual chose to board but if we want to live we have to live with it and on it, it sinks we all die. there are some ways off the ship of course, suicide being the most obvious. We could flee to another society but that would just be swapping one ship for another and starting off again with the added disadvantage of being a foreign alien. The real heroes are the very small number who reject society totally and just walk out to become desert hermit or mountain monks. Not being in society they can't be rewarded or punished by it. they are much braver than the libertarian who hangs around believing they are entitled to break what ever rules they don't like but expect to profit from society as a whole. The terrible price an exile or a hermit must pay shows that written laws DO fade off gradually into social rules, etiquette, protocols and guidelines. People suffer in many ways by breaking them and profit greatly by following them and not just financially. for many people social death can be a prelude to literal death. How many people are killing and being killed RIGHT NOW , (themselves and others) for breaking social codes ? Very few can survive outside of society.
The whole reasoning would (maybe) be interesting if most of the existing rules (I would even say if any of the existing rules) followed a sensible "social building plan". They just don't do that.
So your reasoning is kind of "if rules were what they are not them, maybe, following them would make sense"
Bryan, you've lived most of your life in the US, which may not be a rule-abiding as Germany or Japan, but certainly moreso than much of the world. I think you'd appreciate the rule of law more if you lived somewhere without it.
Rule of law refers to a political philosophy about a just structure of governance; it is not the same thing at all as a general duty to respect actual existing law. In fact, the concept of "rule of law" has been explicitly used throughout the centuries to argue against existing unjust laws and systems of government.
At its most basic form, rule of law refers to particular procedural characteristics of laws, such as general and equal applicability, non-retroactivity, transparency/publication (i.e., people need to know what the laws are), certain and uniform enforcement (i.e., not selectively enforced), etc. For example, a retroactive law enacted to criminalize the past conduct of a specific person disfavored by those in power would very much not accord with the rule of law. Rule of law says that those attributes of retroactivity and non-generality are enough standing alone to make the law unjust, regardless of the substantive content of the law.
On the flip side, a law may satisfy all the criteria for rule of law and still be substantively unjust. Rule of law does not guarantee the propagation of laws that accord with all aspects of justice and does not say anything about a duty to obey or disobey substantively-unjust laws. (Some broader theories also include respect for individual rights and democracy as characteristics necessary for rule of law, but I tend to think that makes the concept too fuzzy and prefer the traditional definition. I see rule of law as a limited concept that speaks to the necessity of very particular values for a just system of governance, not as a comprehensive definition that encompasses all values necessary for a just system. In that framework, respect for individual rights is no less important to creating laws that are actually just simply because it's not part of the rule of law concept.)
That's how I understand the concept as well. As Emma Casey said, its importance is in restraining officials.
This is right. I think Bryan's point is good, but I agree that the phrase "rule of law" is maybe not the right one to make that point. When thinking about the rule of law, think about the Magna Carta - and again, COVID is a fantastic example of the rule of law being essentially suspended (in WA state, it is STILL suspended, and governor Inslee still claims "emergency" powers!). I also think of the rule of law as speaking to consistency within the law. I was not a fan or supporter of Trump, but during Trump, I think Democrats provided some amazing examples of violating the rule of law - if you pointed out that Trump was treated very differently from any democrat (Obama being the best example) doing the same things - you were accused of arguing "whataboutism."
But "whataboutism" is simply the rule of law. If it is illegal for everyone to do X, but the prosecution of that law is arbitrary (or personal, or political), then the law is meaningless except as a tool for stifling opposition. What's important about the rule of law is that it applies to everyone equally (the blindfolded woman holding the scales of justice), and that it applies to the law-maker as well as the citizen (the magna carta).
Is "rule of law" really about random individuals obeying even when they could get away with breaking the rules? It's definitely not the typical usage. The Encyclopedia Britannica defines it as: "the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power", which is a good thing from a libertarian perspective.
Arbitrary power and government means your post might get you imprisoned by the state with no recourse. Your "righteous scofflaw" calculus goes from something you have to use occasionally (when confronted with a bad law), to nearly-constantly (whenever you take any action that might be noticed by someone else).
Rule of Law is much more important when applied to officials rather than citizens. The rightious citizen can work out what's good and break laws in order to bring that about. But government officials almost never can.
So you don't like the litter in your new neighborhood, but you admire the litterers and intend to emulate them.
What you miss is that it is often more important that everyone follow the same laws than that anyone follow the right laws. E.g., traffic laws. If everyone followed the traffic laws they believe most just and efficient, even if the average person's private traffic laws were better than the ones we currently have, it would be disastrous, because the most important thing about traffic laws is that we all follow the same ones, even if they are imperfect. Same with property rights. Following from Coase's theorem, it's more important that property rights are assigned than how they are assigned. A society where everyone has and acts on his own ethics of property rights will be rife with violent conflict and economic uncertainty. It's better for everyone to submit to the same property rights system that each thinks is in some way unjust than for each person to follow his own conscience.
I think you assume that which rules are just or unjust is self-evident to everyone. Once one realizes that people have wildly different ideas about what a just or unjust law is, and (contrary to your claim) that many people will, in fact, interpret the righteousness of a law according to their own self-interest, the case against rule of law weakens considerably.
The main issues here with libertarians, I think, are 1) when the rule of law is enforced unequally by those in power to coerce some unfairly targeted people but not others (no "equal justice under the law"), and 2) rule of law as a means prevent general lawlessness of the type we see in some failed states. Most libertarians would agree that clearly unjust laws should not be obeyed.
So much wrong here. If one finds a law to be unjust, we have this process of organizing with others to elect government officials to work on that. Some of them are actually called…lawmakers!
This has been done successfully quite a few times. Did not require lifetime DIY. Shows support for a system that has been improving for hundreds if years. Just a thought!
We could instead go for anarchy. But given availability of a constitutional republic, doing so would make one an ignorant ass.
This is why I believe that a minimum of laws is necessary. Each unjust (or unnecessary) law undermines the people's sense of the legitimacy of the state. The fewer the laws, the more focus can be placed on making the right ones. Every time, the state makes people train for 100's of hours to become a hairdresser, I take it a little less seriously.
The flaw in Thoreau's argument with which you start and base your essay is assuming we all have the same conscience that holds the same (or at least similar enough) views as to what is right and wrong. My own life experiences (and my readings of others') have sadly demonstrated to me this is very often _NOT_ the case.
I'm not saying we should all be slavishly obedient and not listen to our conscience, but laws and common customs are important. And where law and conscience might be at odds, or at least in need of careful consideration of circumstance, we have that wonderful system of Common Law evolved by the Brits and Americans - in which law, custom, and conscious are explored on a case by case basis to try and discover what should be done, or what is a proper remedy. Though sadly, the Common Law system is badly decayed and often ignored now and a more slavish obedience to administrative law (another term is Napoleonic Code) seems to have fallen into place pretty much everywhere.
This reminds me of the “the law of anarchist calisthenics" from James Scott's Two Cheers for Anarchism. He recommends finding way to break small laws whenever possible to prepare you psychologically to break important laws when the time comes. As a compulsive rule follower, I think this is a valuable pratice.
Every bar with a parking lot is a glaring middle finger to those who follow the law.
I agree that citizen do not need to obey unjust laws. But what is an unjust law? I reason laws not passed through a legitimate process and laws that violate Constitution limits on individual liberty are unjust. That said I still might follow such laws if I judge it not worth my time and money to be arrested or fired.
There's some subtlety here. Is your advice really: "take a cursory look at a law and decide yourself whether it's worthy of being obeyed"? While there are many, many stupid and unjust laws on the books, some of them have real value. Do we really want people to decide for themselves which is which? Lots of people would look at piracy laws and decide they aren't hurting anyone by using a file sharing site to avoid paying for a movie. Others might think that killing an adulterous wife is valid. In the recent COVID situation, requiring lock downs and masks probably was unwarranted, but there could be cases where it is totally warranted if the virus was more deadly and more contagious. I don't have the answer, but telling people to pick and choose what laws to obey seems over-simplistic.