Thursday, March 24, 2005

The Rule of Law

In a previous blog post entitled What is the Law? I brought up the concept of the rule of law and stated in so many words that this concept is a traditional notion that presupposes a limit on the exercise of power wielded by the state and by state actors. To wit, those who are responsible for making and enforcing the law are not supposed to be above the law. Also inherent in the concept of the rule of law is the notion that the law should be fair and just, which is why most people should (in theory) feel obliged to obey the law, even when they disagree with its particular edicts.

Simply put, the rule of law is an ideal that seems correct and self-evident to most civilized people, even those who have never heard of it or taken the time to articulate it as a guiding principle. But while there is general agreement among most civilized people that the rule of law should be a guiding principle for anyone and everyone who makes, enforces, and/or interprets the law, this is as far as the general agreement goes. To wit, whenever someone disagrees with the opinions of another person regarding what the law is, what the law should be, or how the law should be enforced or interpreted, they seem to appeal to the rule of law as a guiding principle.

In the final analysis, the rule of law is all things to all people, a guiding principle that begs the question of jurisdiction. To wit, I have my idea of what the rule of law is or should be, and you have yours. But when I am contacted by a police officer who has the machinery of the state behind him to reinforce his or idea of what the rule of law is or should be, at that moment that police officer has de facto jurisdiction over me, and his or her idea of what the rule of law is or should be will obtain. Moreover, should a police officer choose to take me into custody, he or she can rely upon his or her brothers and sisters in blue to reinforce his or her idea of what the rule of law is or should be.

A myth that is perpetuated by crime dramas on television is that police officers will always defer to the authority of the United States Constitution, as well as the authority of codified statutes and published court decisions. By far the most famous court decision in this regard is Miranda v. Arizona, 384 U.S. 436 (1966), which sets forth the legal principle that whenever a criminal suspect is placed under arrest, he or she must be advised in a timely manner of certain constitutional rights that he or she enjoys under the Fifth and Sixth Amendments to the United States Constitution. Indeed, virtually every English-speaking resident of the United States can recite the Miranda warning, and most people in the United States believe that criminal charges are routinely dropped when a criminal defendant truthfully asserts, "No one read me my rights!"

I don't remember the exact numbers, but the vast majority of criminal defendants that I have met (numbering in the hundreds) have told me that they were not read their rights when they were taken into custody, and most of the criminal defense attorneys that I know (also numbering in the hundreds) tell a similar tale. However, I do not know a single criminal defendant or criminal defense attorney who has succeeded in getting a criminal charge dismissed on the grounds that a criminal defendant was not read his or her rights. Truth be told, the reason that the vast majority of criminal defendants are never read their rights is because they are so busy confessing that the arresting officer cannot get a word in edgewise. Even so, I find it remarkable that so many otherwise intelligent people buy into the myth that the Miranda decision has some sort of talismanic significance that inhibits police officers and criminal prosecutors from putting someone behind bars.

The prevalence of this belief is symptomatic of the larger system of beliefs that is part and parcel of the unquestioning faith that most people who live in the United States place in the rule of law. Few people understand that, as a practical matter, there is nothing to stop a police officer from lying, other than his or her own conscience. To wit, "Sure, I read him his rights." And while my sympathies typically lie with the accused, the purpose of this essay is not to impeach the integrity of police officers as a group. Suffice it to say that I have seen more than one police officer lie about matters both trivial and important, and the lies are usually very practiced and believable.

Needless to say, the same thing is even more true when it comes to criminal defendants -- indeed, I have never met a criminal defendant (innocent or guilty) who did not lie to me about something -- which is one of the reasons why some police officers can so easily rationalize their own dishonesty. The important thing to remember is that it only takes one overzealous, perhaps even well-intentioned police officer to convict a truckload of innocent defendants, as most judges and juries are much more willing to believe the word of a police officer sworn to uphold the rule of law than they are to believe the word of someone who stands accused of a crime. Accordingly, in my not-so-humble opinion, bearing false witness is one of the greatest sins that a human being can commit.

In theory, criminal prosecutors form a firewall between the occasional overzealous police officer and the rule of law, as criminal prosecutors have a duty "to seek the truth and see that justice is done." In reality, many criminal prosecutors are former police officers who have taken their game off the street and into the courtroom. As if that weren't enough of a stacked deck, many trial judges are former criminal prosecutors, and their sympathies typically lie with the prosecution. Moreover, when judges consistently try to be fair and fail to play ball with criminal prosecutors, said criminal prosecutors can (and usually do) exercise peremptory challenges to make sure that those judges do not hear any criminal cases whatsoever; similar perversions of due process occur in civil lawsuits wherein wealthy people effectively silence the voice of those with legitimate grievances.

Somewhat insulated from the harsh realities of overzealous law enforcement, overzealous criminal prosecution, and overzealous civil litigation are the judges who sit on courts of appeal. In theory, appellate court judges act as the guardians of the rule of law and keep trial court judges honest. In reality, however, appellate court judges are almost always pulled from the ranks of trial court judges, and they typically see little or no need to initiate any type of reform when it comes to the rule of law. As far as they are concerned, the judicial system works quite well for the most part, and they typically see their jobs as facilitating the work that trial court judges do in upholding the rule of law. For guidance in determining what the rule of law is or should be, both trial court judges and appellate court judges actually will turn to statutes and constitutional provisions set forth by the legislative branch of government, . . . sort of. More often than not, appellate court judges will simply ignore the facts of a case and decide said case on some esoteric and irrelevant point of law that captures their attention.

If there is a single branch of government that has a truly legitimate claim to jurisdiction regarding what the rule of law is or should be, it is the legislative branch. However, the legislative branch of government does not speak with a single authoritative voice. Indeed, if there is a central point or nexus of points to this blog post, it is that no branch of government speaks with a single, authoritative voice, that government actors are remarkably arbitrary and capricious, and that in the cacophony of schizophrenic voices with which the government does speak, it seldom defers to any objective standard regarding the nature of the rule of law. Rather, the government typically serves as a collection of naked power organs that are used by those in power to advance their own selfish interests, the rule of law be damned.

To be fair, the powers of government in a modern democracy, particularly the powers of the legislature, are subject to constitutional restraints, judicial review and a number of other checks and balances. Even so, this is not the same thing as living "in a nation of laws, subject to the rule of law"; if there is such a thing as natural rights and an objective rule of law, the proper role of government is to discover these things, not create them by fiat. To wit, government is, at its best, an institution that is supposed to secure the rule of law, but most people conflate the rule of law with majority rule, or rather the peculiar form of plurality rule found in modern democracies wherein overlapping special interests form the basis for coalitions through which the rule of law is consistently thwarted by consensus.

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