"The Myth of the Rule of Law"
From the comments section of another post, Debbie cited an interesting Wisconsin Law Review article by John Hasmas entitled "The Myth of the Rule of Law"...
The title makes the paper's purpose self-explanatory. In a nutshell, he illustrates how law is more a tool laden with the subjective values of those who wield it-- than an objective, value-free norm. The result is that mutually exclusive inferences can be supported with equal validity by "the law".
Troubling in one sense; freeing in another; and insightful and provocative in any case.
posted by Eric Schansberg @ 6:07 PM
6 Comments
6 Comments:
It's been maybe two years or more since I first read this article and I'm STILL pondering it.
Though I didn't read the whole paper, I don't think anyone would argue with the basic idea that there will always be a certain measure of subjective interpretation on the part of judges & juries when applying the law to situations. I am not surprised by the conclusions.
In a democracy the laws will most likely reflect majority opinion, which may not necessarily be the opinion of judges/jurors who decide the cases. Two different people with different backgrounds/experiences may come to completely opposite conclusions applying the law to identical situations. Look at O.J.??
However, this doesn't change the fact that in order to have some semblence of law and order, we have must have certain objective standards of right and wrong.
[Which standards we include and where they come from is another discussion.]
Will the system work perfectly - of course not.
As an aside, I agree with the author that this has become a country "of the banks & multinational corporations, by the banks & multinational corporations and for the banks and multinational corporations" - and we can't forget their buddies in Congress/White House who give them their way in exchange for campaign funding.
There is no doubt that many of the laws on the books are to protect and provide for this symbiotic arrangement; not to ensure the freedom and justice of the people.
I was just thinking that perhaps the bigger question posed is not "Can people be objective in applying standards of truth", but
Does "absolute truth" exist?
To me, the funny thing is that absolute truth can (and does) exist, even though we cannot necessarily (often?) figure out what it is.
The two errors-- as is often the case-- are libertine on the one side (no absolute truth) or legalistic on the other side (too often "knowing" an absolute truth, or applications thereof).
This shouldn't be too troubling. Since we're finite beings, we will have trouble discerning truth, especially given our limited information and deceitful hearts.
As related to human beings trying to do government, an overall point would be that "justice" requires that certain standards of right/wrong exist in the form of laws which carry consequences if not followed. We should try to get as close to "truth" (which by definition is more objective, less experiential) when making law, as well as applying it.
Your last sentence on trouble we may have discerning truth & the deceitfulness of the heart makes me think of this verse:
Matthew 5:25: "Settle matters quickly with your adversary who is taking you to court. Do it while you are still together on the way, or your adversary may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison.
I'm sure there's the deeper meaning that we will face God one day in judgement, so make things right with your brother/sister now. But in the literal sense, it sounds like advice from Jesus to stay out of the court system, if possible??!! (maybe due to the point you made in your last sentence)
That's a very reasonable application of that verse!
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