The lack of rules of law, which leads to ad hoc and inconsistent adjudication.
Failure to publicize or make known the rules of law.
Unclear or obscure legislation that is impossible to understand. [Or difficult for most people to agree on the meaning of.]
Retroactive legislation.
Contradictions in the law.
Demands that are beyond the power of the subjects and the ruled.
Unstable legislation (ex. daily revision of laws).
Divergence between adjudication/administration and legislation.
These are a good start, but we can identify more, and better organize them, in this first part of a discourse on the topic.
Fuller's formulation addresses the need for internal consistency and predictability, but omits the critical component, that it provide for the reasonable protection, and accessible remedies for violations, of the natural and social rights of the people, whether individuals, minorities, or majorities. With that in mind, we can begin to prepare our own list.
Specifications for a Rule of Law
Laws that apply uniformly to everyone, including lawmakers, administrators, and adjudicators, except as individuals may earn different treatment, consistent with the general good.
A written constitution of government that is consistent with the superior constitutions of nature, society, and the state (understood as society with dominion over a well-defined territory), from which all other laws must be derived, and with which such derivative laws, administration, and adjudication must be consistent.
Institutional structures and procedures that allow orderly and competent notice, deliberation, and decision of legal issues, both for the society as a whole and political subdivisions of it, and for individual cases, in which all stakeholders are represented.
Affordable access to remedies for anyone whose rights have been violated or are threatened, and for anyone seeking to protect the rights of others.
Establishment of the right to a presumption of nonauthority.
Establishment of the right to the means to supervise public agents and hold them accountable.
No contradictions among laws or the administration or adjudication of them or of cases involving private matters.
Reasonable and impartial discretion consistent with general principles of law, not used abusively or to redistribute.
These will be further discussed in subsequent installments of this series.
Most of the constitutional debates in which I participate are about whether to comply strictly with the Constitution as originally meant and understood, or with court precedents even their defenders admit have drifted far from original meaning, or even with disregard for the Constitution altogether as a relic that is no longer relevant to solving modern problems.
The second most common thread is among those who would like to be able to strictly comply with the Constitution as originally meant, but lament that so many seem bent on not doing so that they represent a political force that is difficult for the constitutional loyalists to overcome. Most of those see the problem not as a deficiency in the Constitution but as a decline in civic virtue, and wonder how that decline might be reversed.
Some see a problem arising from the evolution of legal English, such that the language of the Constitution, written in the legal English of 1787, is no longer readily accessible to modern users of the language, suggesting either the need for translation or amendments to clarify the language for moderns.
But there has been raised a different argument, that the problem is the Constitution, because it demands too much of people, and that it needs to be replaced by a constitution that demands less. The argument that the people are naturally unfit to govern themselves has often been made by monarchs and oligarchs.
About the time of the English Civil War, 1645-49, a royalist
was quoted to have said, "A commonwealth is not fit for the people,
because the people are not fit for a commonwealth."* By
"commonwealth" he meant a representative democracy or republic, such
as that once proposed by Simon de
Montfort in 1265 and by the Levellers
during the English Cromwellian period.
Since 1787 many countries have experimented with various
constitutions of government, written or unwritten, most modeled on
those of the United States and Britain, with varying success, and
with occasional reversions to monarchical or dictatorial forms,
which usually return to some kind of republican form after a time.
From this experience we can conclude that constitutional republican
government is marginally fit for people, and people for it, although
either may fall short for periods of time that usually drive the
people to improve. Most people only learn from suffering, and some
challenges are only met if people don't become too comfortable.
What I call civic virtue seems to have been at
its height in the aftermath of the American Founding, was high on
the Frontier, and seems to rise during periods of war and to decline
during long periods of prosperous peace. That is what prompted
William James to write his famous essay, "The Moral Equivalent of
War", in which he tried to identify alternatives to war that
might encourage that increase in civic virtue, although his
suggestions are not very convincing.
Although we can identify a basic "human nature" that changes only
through genetic evolution, and which sets some bounds on what it is
reasonable to expect of civic virtue, the range of performance
within those bounds is large, and can vary with time and
circumstance for groups and individuals, who may rise to some
challenges and not to others.
It may be useful to try to define metrics for the talent and virtue
that various challenges require to meet them, and that are
distributed among a population at any given moment. An adequate
metric must be many-dimensional, reflecting the many functions that
must be exercised to solve the problem the challenge presents. It
will in general have a unimodal gaussoid or bell-shaped distribution
that varies with time, the civic culture, and the challenge, both
actual and perceived.
An appropriate and effective collective response to a challenge,
whether it be to a war or depression or the demands of a written
constitution of government, may depend on the current talent-virtue
distribution meeting or exceeding the distribution the challenge
requires, but not necessarily across its entire range. Challenges
are usually met by the efforts of a subset of the population, and
their effectiveness may depend less on support from the mass of the
people than on that mass merely refraining from interfering with
them.
Remember that the American War of Independence was won with
the active participation of only about 3% of the population, and
moral support of about a third, who joined in electing and following
the few. Another third even opposed their efforts, but that
opposition was not as well-organized and focused. Today that third is organized, as government employees, contractors, pensioners, or recipients of entitlement benefits. Indeed, it is estimated that more than half of the American population are tax getters rather than tax payers, consumers rather than producers. Most of government and the legal profession is composed of persons whose careers are built on the departures from constitutional compliance, not on strict adherence. They are collectively called "reliance interests".
There is also a problem with cognitive dissonance, a term coined by social psychologist Leon Festinger, who observed how people compelled to act contrary to their beliefs will change their beliefs to agree with their actual behavior. Being embedded in a herd of constitution violators causes many to first abandon constitutional compliance as a personal value, then abandon the Constitution itself as a supreme law.
The Constitution could use some clarifying amendments to adjust for the changes of an evolving legal language, but the most important reform needs to be to reduce the number of people who rely on violation of it.
* Seeking the cite for this.
Some quotes:
"[N]either the wisest constitution nor the wisest laws will secure the liberty and happiness of a people whose manners are universally corrupt." ― Samuel Adams
“Among a people generally corrupt, liberty cannot long exist.” ― Edmund Burke
"Only a virtuous people are capable of freedom. As nations become more corrupt and vicious, they have more need of masters." ― Benjamin Franklin
“Experience has shown, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.” ― Thomas Jefferson
"Dependence begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition." ― Thomas Jefferson
"To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea." ― James Madison
"Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." ― John Adams
"No free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles." ― George Mason
"Freedom is never more than one generation away from extinction." ― Ronald Reagan
“Power attracts the corruptible. Suspect any who seek it.” ― Frank Herbert, Chapterhouse: Dune
