There Is No Such Thing As Rule of Law

Rule of Law is often cited as one of the distinctive characteristics of the West, and of Western cultures, which has enabled the West and kindred cultures to rise above despotism, corruption, and poverty. And so it is. The keeping of the Law is traditional in the West.

But, the Law is only as good – can do only so much good – as the men who keep it. It is men who by their acts keep to the Law, enforce and adjudicate it honestly and as fiduciaries of the nation, or who do not; who transmit the tradition they have inherited, or who traduce it.

Rule then is always of men.

Good men are lawful, fair, and loyal, and will keep the Law; so then are they likely to rule by the Law. Evil men who get the reins of power are not likely to keep the Law. They are likely rather to bend and twist and use it to suit and serve their own ends.

As we see.

When good men are not in government, and ruling according to the Law and their own best lights, then is there war.

36 thoughts on “There Is No Such Thing As Rule of Law

  1. Rule of Law is evil when substantive, usually meaning that the men who are in charge should apply the law like machines, ignoring their reason and morality entirely in favor of the law as written (which due to the nature of language isn’t even really a possibility) or it is banal, simply meaning the law ought to apply when the law ought to apply.

  2. Dang, I wish people could understand the simplicity of all of this. Yet, it seems, they can’t. Remember that long, drawn out, fruitless discussion we all had awhile back concerning the slogan “equal before the law” or whatever it was. Zippy (RIP), as you’ll recall, got in the middle of it too. Did he do any good with his refined thinking on the matter? In the short term, emphatically not (except with the choir, of course). In the long term, well, maybe. That latter is where my hope lies. Onward!

  3. Álvaro d’Ors, “Derecho es lo que aprueban los jueces” (1970), in Escritos varios sobre el Derecho en crisis (Roma, Madrid: Consejo Superior de Investigaciones Científicas, 1973), 45–54. [“Law is what the judges say it is.”]

    In his article in the festschrift for Frederick Wilhelmsen, “Saints, Sovereigns and Scholars”, Don Alvaro reminds us, and especially the judges (as I remind my own judicial spouse) that ultimately there is a supreme judge to whom all will answer.

  4. Pingback: There Is No Such Thing As Rule of Law | Reaction Times

  5. Years ago when teaching my son how to drive, I made the point repeatedly to him that no intrinsic property of a stop sign or a red light compels another driver to stop. There is only observance of the rules.

  6. Truce of God, in the Middle Ages, an attempt by the Catholic church to limit private warfare between feudal lords. It is related to the peace of God, which exempted clergy, women, children, and peasants from battle or attacks. The truce of God was proposed (AD 958) by Pope John XV and was first applied in 1027. It prohibited fighting from 9 PM Saturday to 3 AM Monday, which was soon extended to span Wednesday evening to Monday morning. Religious days were also included. That left only 80 days a year for fighting. The truce spread from France to Germany, Italy, Flanders, and Spain, and from 1123, it was backed by the threat of excommunication. The increasing power of kings (the peace of kings ) and the subsequent rise of strong national governments rendered the truce of God unnecessary and ineffective for enforcing internal peace. It lapsed in the 13th cent.

    (source)

    The law is kept only when lawful men keep laws. As demonstrated when Martin Luther pinned his theses on the door, once people realize that ignoring the law is materially rewarding, despite the risks (i.e. ignoring stop signs gets you to your destination faster, with a commensurate risk of immediate traumatic injury), people will fall away in droves. Once the cat is out of the bag, it’s hard to get it back!

    • Fascinating, Scoot, thanks for this reference. I had never heard of the truce of God. What a great idea! Particularly clever was the proscription of involving anyone other than Kshatriya in fighting. I realize now that this is why in our legends of chivalric knights we always see good knights errant fighting evil knights who oppress peasants or women.

      • The Lex Innocentium (Law of the Innocents) was first proclaimed by Adomnan, ninth Abbot of Iona, at the Synod of Birr in 697 AD. It was later called the Cain Adomnain (Law of Adomnan) in honour of the Saint.

  7. I prefer the phrase “rule by law”. Impartial application of previously explicitly promulgated laws is one way for the sovereign to operate–a good way in some contexts, but it doesn’t fundamentally change the nature of authority.

  8. Men who keep the law are of two types: those who enforce it on themselves (by, for instance, stopping at stop signs), and those who enforce it on others (by, for instance, writing tickets for those who do not stop at stop signs). This is why we say that the law-abiding citizen carries a policeman in his head.

    The problem arises when bad, officious and niggling laws turns that policeman in the head into a tyrant and a scold, and it becomes the duty of every decent man to break those bad, officious and niggling laws. Not just violate those laws, but break and destroy them through civil disobedience.

    Christians call this martyrdom. The legal position of the martyr is indeed rather curious, for he is neither law-abiding nor criminal. He breaks the bad, officious or niggling law in the hope that it will one day be altogether broken and destroyed, but he submits to the punishment out of fealty to Law.

    Going back to the ancient Greeks, the defining character of Western man was that he saw himself as neither servile nor savage. The orientals were servile and lacked the spirit to disobey a despot. The Scythians were savages who lacked the reason to obey a just laws. The crucial question was therefore how to distinguish just laws from the bad, officious and niggling laws of despot.

    And the answer was that a just law cannot be contrary to “higher laws” of nature, reason, or the revealed will of God. If an oriental despot commands me to fly, the higher law of nature commands me to show civil disobedience and perhaps suffer martyrdom. If an oriental despot commands me to affirm that up is down, the higher law of reason commands me to show civil disobedience and perhaps suffer martyrdom. If an oriental despot commands me to dishonor God (perhaps by worshiping the despot), the higher law of revelation commands me to show civil disobedience and perhaps suffer martyrdom.

    The true martyr (with a true understanding of nature, reason and God’s will) is more perfectly “under the law” than some servile lickspittle. This too is an essential part of the Western legal tradition.

    • The problem arises when bad, officious and niggling laws turn that policeman in the head into a tyrant and a scold, and it becomes the duty of every decent man to break those bad, officious and niggling laws. Not just violate those laws, but break and destroy them through civil disobedience.

      Some years back (around 2012 as I recall) I had an interesting telephone conversation with one of my (elder) cousins concerning this very issue. My position was almost precisely that of your own, whereas my cousin took the “conservative” position that the law, regardless of its morality/immorality, must be obeyed until it can be changed through the electoral/legislative process. I of course strongly disagreed with his position, and we argued (fruitlessly) back and forth over the matter for several minutes until, at length, my cousin got very frustrated with and angry at me and began to yell at and curse me. “It’s the mother-f***ing law!,” exclaimed he. To which I calmly replied, “yes, but it is an immoral law, and I am therefore under no obligation to obey it; indeed, I view it as ipso-faco non-law.” By this point my cousin was seething with anger and was cursing like a madman. I asked him to calm down and allow me to ask a relevant question of him. He conceded. I then asked, “so what do you think of the Founding Fathers such as Washington, Jefferson, Madison, Hamiton, Webster, etc – lawbreakers or no?” “Hell no!” says he; “they were great and honorable men of God who were throwing off tyranny!” “I beg differ,” says I; “they were in rebellion against the laws of their King and country. This means that they were in fact Law Breakers.” I had struck the right note. My cousin went silent for a few seconds, then finally replied that “Well, all I am saying is that if you’re going to break the law, then you had better be ready to suffer the consequences.” “No argument there,” says I. And that was the end of the conversation.

      • This is why temperamental conservatives become good leftists when the Left is in power. They respect authority but have no theory of the grounds of authority. The Left calls this the “authoritarian personality,” and actually has no objection to it so long as it is taking orders from the Left. There is also a confidence that a democratically elected legislature will never pass a truly wicked and evil law–such as, say, a law to draft our daughters into combat units. Never happen. Right?

      • @JMSmith, on temperamental conservatism. I agree, but it is a very difficult obstacle to overcome, it is not just temperament. For example, the German police says that when the big refugee waves in 2015 started, crime indeed went up, but now it is down again. I flat out disbelieve that. It might be true in some formal sense like old people no longer daring to go out after dark and thus don’t get victimized, but in the essential sense of people actually getting safer, or smaller numbers of predators out on the streets, not. But I have no evidence against it. And my temperament is indeed that that I should believe the police. I would believe evidence over the police, but I don’t have. All I have is my skeptical mind, because I see no logical reasons for a reduction in crime. And disagreeing with the police just based on that is temperamentally quite difficult. It is simply hard to imagine the police being converged into an institution that covers up and thus supports attacks on citizens and its reasons.

      • @Dividualist

        I suspect it is ‘recorded crime’, not ‘crime’ per se, that has been reduced.
        That has been the standard political trick on this side of the pond for decades.

      • To your cousins visceral response “It’s the mother-f***ing law!,” There’s that innate Oedipus curse projection emerging again – such as is common among mankind. On tap. Instantly summonable from within. By which mankind by “nature” consistently evidences and proclaims instinctually his guilt and self-rage at the primal recollection that some or all are the offspring(s) of such forbidden unlawful acts. “F”or “U”nlawful “C”arnal “K”nowledge. Used also not unsparingly as an lyrical ingredient of street credibility authenticity in RAP music.

  9. Discipline is the basis of all education and every civilisation. Permissive ‘pedagogical’ theories cannot but lead to the failure to transmit knowledge, as is so evident today.

    Th e belief that ‘self-discipline is possible for all’ is a tragic perversion of aristocratic individualism. Only superior beings are capable of self-discipline, not the common man. But, against common sense and overwhelming evidence, egalitarian ideology refuses to acknowledge that there are differences between those capable of self-discipline and those who aren’t.

    Th e refusal to accept legally-established disciplines leads to the most savage oppression, to a law of the jungle. Egalitarian ideology associates discipline and order with their excesses, that is, with arbitrary dictatorship. But just the contrary is the case, for freedom and justice are founded on rigorous social discipline. Th e anthropologist Arnold Gehlen, like the ethologist Konrad Lorenz, has shown that man, by his very biological nature, is ‘a being of culture’ ( Kulturwesen ), that is, ‘a being of discipline’ ( Zuchtwesen ). It’s patently obvious that so-called defenders of freedom (actually license) challenge social disciplines in the name of freedom and the rule of law, but the social and political model they advocate has the effect of destroying all freedom, all law, all social justice: as seen in the spread of delinquency and insecurity, the collapse of public education and equal opportunity, the toleration of delinquents and gangsters, privileges for influential or violent pressure groups, etc. all this comes at the expense of the citizen’s security. We shouldn’t be afraid to say that every society refusing to uphold law and order, that is, collective discipline, is ripe for tyranny and the loss of public freedoms. *

    Th e judicial imposture of the dominant ideology endeavours to make us believe that the absence of social discipline is a guarantee of public freedoms, insofar as it wards off the spectre of a ‘police state’. But just the opposite is true. The ideology of license is the foundation of contemporary despotism. Th e greatest of liberalism’s impostures has been to confuse indiscipline with freedom and freedom with anarchy.

    Th e anti-disciplinary societies of today are hardly exempt from repression and other, more cloaked, forms of totalitarianism. Repression has merely changed its object and nature. Th e rigours of the law, fiscally and punitively, now fall on the ‘transparent citizen’, but the number of no-go zones keeps expanding, just as delinquency and other criminal activities are increasingly tolerated. Indeed, all kinds of violent delinquencies have grown. ‘Hate speech’ (i.e., identitarian speech) or ‘homophobia’ is strictly repressed, as the thought police demand, but drugs are decriminalised, the threshold for urban delinquency is raised, secularism is violated in favour of Islam, terrorists and urban rioters are appeased, etc. Th ese are the signs of a society whose fundamental values have become suicidal a society which represses and censors everything that is vital and encourages everything that is culturally and biologically pathological. (see order; personality ) * * *Guillaume Faye, “Discipline”, in “Why We Fight”, 2011.

    • I would venture the further thought that in line with this discussion of social discipline, the judges would be expected to apply the laws to the end that the society desires, by way of enforcing social discipline, but when there is no social consensus on desirable conduct, then the judges are left to their own devices, no doubt reflecting their own backgrounds and the like, and the legal indeterminacy which bedevils US society today, if not also others, is the result.

  10. I think Moldbug went further than this. The law is up to interpretation which is inherently a human thing. Thus, you cannot tell objectively is someone is keeping the law or not. They claim they are keeping their own interpretation of the law. There is no objective way to determine which interpretation is correct. The law-giver had an intent, wrote it down as law, the interpretation is basically reading the intent out of it, but the intent is not known beyond what is actually in the law text.

    Thus we cannot simply say good and honest judges interpret laws correctly.

    What we can say – this is my ideas, not his – that good judges:

    1) Interpret the law consistently, there is no one set of interpretation for their friends and another for their rivals.

    2) Interpret it in a way that is close enough to how everyday people interpret it. Because the primary purpose of the law is make people behave in a certain way. Punishing those who do not is secondary. We want to minimize surprise, that is, that people think the way wants them to behave in a certain way and then it turns out the judge interprets it differently and punishes them. We want to minimize surprise because want to maximize the predictability of the social environment because that fosters long-term thinking and investment into the future, low time preference behavior which fosters the process of civilization (Hans-Hermann Hoppe).

    As Sir Robert Filmer had put it, saying the laws rule is like saying the carpenter’s measuring tape is building the house. The law is a tool in the hand of the ruler. However good rulers maximize social predictability, stability for the above reason. Thus they will almost always steer close to a common-sense interpretation of the laws.

    This is one of the reasons a nation needs one absolute king, not a bunch of politicians, judges, neither on their own nor with a constitutional king. As their interests differ, they are going to have different interpretations of the law. If there is literally just one man who is allowed to interpret the law (and delegate that job to others) then at least you have a hope that it will be close to the common-sense interpretation. After all, that one man writes laws by royal decree because he wants people to behave in a certain way. So it is in his interest to formulate them in a way that people will understand it correctly.

  11. ‘Be you ever so high,’ said Lord Denning to the Attorney-General (after having had him dragged out of Parliament to appear in the Court of Appeal when he was disinclined so to do), ‘the Law is above you.’
    Sadly, the House of Lords overturned Lord Denning”s judgement

  12. Afterthought: Is “Rule of Law” Reification of juridical norms? Rule ‘by’ law as Bonald suggests is the ontological truth, Rule ‘of’ law is the fallacious misconception thereof. Men rule, and the tool they use is instead of the Scepter, the law. Tools can be used for good or ill, depending on he who uses it (ask anyone who has tasted my cooking). So the Law takes on the character of the men who use it to rule.

  13. Burns summed up the issues pretty well in ‘Ye Jacobites by Name’ thus:

    ‘What is Right, and What is Wrang, by the law, by the law?
    What is Right and what is Wrang by the law?
    What is Right, and what is Wrang?
    A short sword, and a lang,
    A weak arm and a strang, for to draw, for to draw
    A weak arm and a strang, for to draw.’

    The Corries do a wonderful rendition at:

  14. PS: It’s not strictly on topic but, as this is a Christian site and I have introduced the Corries,
    here is their version of what I think is the greatest 20th Century English hymn (written to the old Shaker tune ‘Simple Gifts by Sydney Carter in 1963):

  15. “Romans 2:12For as many as have sinned without law shall also perish without law: and as many as have sinned in the law shall be judged by the law; 13(For not the hearers of the law are just before God, but the doers of the law shall be justified. 14For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves: 15Which shew the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the mean while accusing or else excusing one another;) 16In the day when God shall judge the secrets of men by Jesus Christ according to my gospel.“

    Nature’s God or God’s Nature, whichever brand of the original source of Good or Forbidden admixture of Good and Evil one may or may not subscribe to. For those which have not the law, do by nature the things contained in the law, sounds to me like we are innate creatures of law and either self accuse or excuse our thoughts and actions. Therefore there is no such thing as Madness – Defense of Criminal Insanity as an excuse for unlawfulness. Only the choice to descend into it (Madness) or wear it as a Dionysian Mask during Trial.

    Where’s my Roy Cohn? 🙂

    • Madness is real enough, sometimes, and it seems to me that it is sometimes involuntary. Nevertheless it is at most an explanation of wickedness, and not an exculpation. If responsibility is real, then there is no way out of it, whatsoever.

  16. Kristor: I don’t know where to leave this, so I chose one of your threads. We have a mutual friend who we both corresponded with by email for a time. His screen name is Svar. This young man has already endured unbelievable levels of suffering and he is again ill and the treatment he is facing is truly terrible. He’s only 26. His faith is in grave danger. May I ask you and your friends to pray for him? I can’t emphasize enough how urgent the situation is.

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