Encroachments of Power -Cedar Sanderson
About two hundred years ago, a British jurist named Albert Venn Dicey coined the phrase the Rule of Law. The idea behind the phrase extends back as far as written history, however, with the tablets of Hammurabi that laid out the laws of a long-vanished society, and the even older Code of Ur-Nammu (Kramer). The Rule of Law holds that not only one person ought to be obedient to the laws as recorded, but the governing body must be equally constrained. The opposite side of the Law is Man, capricious and vindictive. “The law – and its meaning – must be fixed and publically known in advance of application, so that those applying the law, as much as those to whom it is applied, can be bound by it. If courts (or the officials of any other institution) could make law in the guise of applying it, we would have the very ‘rule of men’ with which the Rule of Law is supposed to contrast.” (Fallon)
The Rule of Law means different things taken in different contexts. Applied to a single individual, it is usually taken to mean adherence to the written laws of the nation where that person is in residence. Applied to governments, it can be taken to mean the codex of laws recorded, enforced consistently and without capricious punishments handed down outside of those laws. Public officials, despite being elected or appointed, are not to be above the rule of law, even while they guide and refine it.
The Founding Fathers of the United States attempted to anticipate the need for a rule according to law in the new nation they struggled for. Alexander Hamilton wrote “how easy it is for men to change their principles with their situations; to be zealous advocates for the rights of the citizens when they are invaded by others; and, as soon as they have it in their power, to become the invaders themselves; to resist the encroachments of power, when it is in the hands of others; and, the moment they get it into their own, to make bolder strides than those they have resisted.” Our government, far from being a monolithic machine, is made up of just such people, and the rule of law is what must remain in place to prevent them from seizing power in some petty tyranny.
Governments around the globe in modern times display varying adherence to the Rule of Law. In some places, lip service is paid without reality reflecting what is said. China recently proclaimed “fairness is the lifeline of the rule of law.” However, external observers and activists reject that statement, “like a rooster dreaming that he can lay eggs, the basic political system is incompatible with rule of law, they mainly want to use the law to control society and control the public,” Teng Biao, a prominent rights lawyer, wrote this week. Currently in Hong Kong, a pro-democracy movement called the Umbrella Movement is testing the limits of that rule of law in China, and finding that it is fading in the once independent city.
Zimbabwe and its fall from the Rule of Law to the Rule of Man is a perfect example of why the ideal of the Rule of Law is a worthy one to strive for. In 1999 it was reported “Mugabe has arrested, jailed and tortured journalists, imposed bans on the media, outlawed strikes and “stay-aways” and allowed the military and the Central Intelligence Organisation (CIO) to arrest and detain civilians. He has openly flouted court orders and challenged judges to resign.” In the fifteen years since then, an estimated 30,000 deaths have occurred under his genocidal regime.
On an organizational level, the Rule of Law means not only obedience of the laws in place, but protection from infringement of the individual’s rights by the organizations that impose and enforce those laws. Police, for instance, are intended to be a force for good, “Cops and liberties are not zero-sum rivals; a strong and effective police force is not a corrupt or abusive police force; good street policing does not oppress and brutalize.” Here in the United States, the core principles of the Bill of Rights are intended to give every person an equal chance before the law, something that has been refined, battled, and re-discovered many times since the ink was wet on that document.
Policing seems to be a central point of a growing concern here in the United States. Laws, loosely adapted to suit the purposes of those organizations which once proclaimed an intent to protect and serve are now turned against that very citizenry, often if no intent or crime exists. Seizure of assets, originally intended to work under the Rule of Law to threaten drug dealers, is now seen as a ‘revenue stream’ for “A thriving subculture of road officers on the network now competes to see who can seize the most cash and contraband, describing their exploits in the network’s chat rooms and sharing “trophy shots” of money and drugs. Some police advocate highway interdiction as a way of raising revenue for cash-strapped municipalities.”
The police are not alone in this tactic of seizing money for no good reason. “The Internal Revenue Service agents did not accuse Ms. Hinders of money laundering or cheating on her taxes — in fact, she has not been charged with any crime. Instead, the money was seized solely because she had deposited less than $10,000 at a time, which they viewed as an attempt to avoid triggering a required government report.” The NY Times goes on in this article to enumerate other instances, and the frightening fact is that there is no Rule of Law that can stop the IRS, it seems. Rule of Man holds sway in what is possibly the most draconian of government bureaucracies. Not a tyranny of a single dictator, but that of thousands of petty tyrants, pecking the nation to death in their pursuit of power.
For each individual, living under the Rule of Law ought to mean trust and security, and when the authorities fail as sometimes happens, recourse to not only make it right for that single person, but to safeguard others, and to mend the broken trust before it threatens to decay into the Rule of Man. The United States government was designed with checks and balances between the three branches for good reason, to prevent the tyranny of a single man at the apex of the pyramid proclaiming that he holds the pen that dictates the Rule of Law.