Rule of Law: 8 Methods to Evaluate Violations of the Rule of Law

This lesson is an excerpt from: Lawless America: What Happened to the Rule of Law by Bruce Frohnen.

The purpose of the Rule of Law is to provide settled, enforceable rules, known by the people, which allow them to plan their lives according to those rules.

8 Points of violation of the Rule of Law

Lon. J. Fuller lists eight ways in which a regime can fail to establish or maintain a rule of law.[ref]Fuller, Morality of Law, 39.[/ref] Below are a brief summary of his central points:

  1. A regime fails to live by the rule of law if it does not have rules—if everything has to be decided on an ad hoc basis.

We see this in many of our own Supreme Court’s decisions regarding, for example, the Constitution’s religious establishment clause. The “interior decorating decisions” regarding crosses in public squares and the like may be seen by their authors as applying rules. But it is rather clear that the question of how many Santa Clauses can make a nativity scene “constitutional” is not based on a principle or rule. Proof of this is provided by the fumbling, niggling distinctions and inconsistent decisions themselves.[ref]Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 399 (1993) (Scalia, J., concurring).[/ref]

  1.   a) A regime may fail to publicize, or at least make available to the affected parties, the rules they are expected to observe.

   b) Parties are expected to follow an unknown law, which is not possible, save by mere chance. Secret laws are not law, as even Hobbes noted. [ref]Thomas Hobbes, Leviathan, Chapter XXIV: “Of the Civil Laws.”[/ref]

  1. A regime abusing retroactive legislation destroys the rule of law by negating the proper immunizing effect of enacted law.

There is actually some ground for debate as to how bad retroactive legislation is and when. But this much seems generally acknowledged: If a few people are using a hyper-technical reading of, say, a tax code provision to get a massive tax break that was not intended, the government can rewrite the legislation and apply it retroactively, and still be acting in a law-like manner. The state in effect is saying “do you remember that tax break? You don’t get it, including for the year you claimed it, because you should have known it wasn’t what was intended.” But it is not law-like, for example, for the government to pass a law that would imprison people for criticizing government ministers, and then apply it to people who made such criticisms before the law was passed.[ref]“Our Constitution specifically forbids ex post facto laws, of course. Moreover, I personally would have a problem with the first form of retroactive legislation. The power of retroactive legislation seems just too liable to abuse, though the correction of erroneous judicial decisions (such as those awarding a tax break not intended) resides within the legislature’s appropriate powers.”[/ref]

  1. Laws that are not understandable, whether the Internal Revenue Code or increasingly arcane regulations applied to small businesses—are not law-like because they do not effectively tell people what is required of them.

And it is no solution to say that everyone should have a lawyer to explain the law to them. “Rational lawyers’ expectations,” however widely spread (and lawyers are too expensive for it to be widely enough spread), simply are not the same as people’s rational expectations.

  1. Contradictory rules and,
  2. Rules that require conduct beyond people’s natural capacities in effect make it impossible to follow the law.
  1. Rules that change too often fail to guide us in determining what conduct is required.

Think, for example, of the number of times you have been berated by a security guard at the airport who is upset that you have failed to divine the latest requirement added to your search before boarding an airplane.

  1. When the rules as announced are not the rules enforced—the Soviet constitution [ref]”The Soviet Constitution promised paradise—the right to work, to leisure, to free speech, and so on—but delivered none of these, instead producing tyranny and mass murder.”[/ref] and the Zimbabwe land reform laws under Mugabe [ref]The Zimbabwe Land Reforms under Robert Mugabe When this dictator decided it was time to confiscate property held by white farmers, he first changed the constitution―which already had provided for some land transfers, with compensation―to allow his government to take the land, then tell the farmers to get compensation from the British government.[/ref] are examples—you do not have law.   [ref]”And after that? There was written into law a land-reform program providing for rules regarding which landless peasants would be eligible for land, how compensation would be carried out, and so on.”[/ref] [ref]”Of course these provisions were ignored and the courts were bullied into rubber stamping whatever the government decided to do with the land it had seized.”[/ref] [ref]”It is after all in the nature of theft that the booty will be divided up among the powerful, not those best able to make use of it. My point is this: few regimes want to look as arbitrary as Mugabe’s actually is, so they use the language of law, and then violate it.”[/ref] [ref]Constitution of Zimbabwe S. 16 A(1) (c) ii, viewed online at: http://www.parlzim.gov.zw/inside.aspx?mpgid=25&spid=68.[/ref] [ref]Land Acquisition Act, Chapter 20:10[/ref] [ref]John McClung Nading, Comment: Property under Siege: The Legality of Land Reform in Zimbabwe 16 Emory Int’l L. Rev. 737 (2002).[/ref]

Conclusion

If a regime fails too much on any or any combination of these aspects, there is no rule of law. Why not? Because the regime fails to provide settled, enforceable rules, known by the people, which allow them to plan their lives according to those rules.

 

This essay is an excerpt from Lawless America: What Happened to the Rule of Law by  Bruce P. Frohnen, a Senior Contributor at The Imaginative Conservative. He is Professor of Law at Ohio Northern University College of Law and the author ofVirtue and the Promise of Conservatism: The Legacy of Burke and Tocqueville, The New Communitarians and The Crisis of Modern Liberalism and editor (with George Carey) of Community and Tradition: Conservative Perspectives on the American Experience.

 

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