31/05/2024
Is your giddy friend really relieved the “Rule of Law” was preserved upon the verdict in the most recent high-profile legal case, or are they just supporting “lawfare” that bolsters their pre-conceived conclusions?
“The Rule of Law,” conceptually, is contrary to modern Leftist doctrine, which is subjective and coercive in nature. Leftists and Dems always try to claim legal outcomes are a victory for “the Rule of Law” when it suits their purposes, but not when legal outcomes contradict them. The focus for them is on the particulars of cases and how they aid their ends goals in relation to the system they want built. This of course is a misuse of the term, and really is more in line with the opposite notion that the true “Rule of Law” concept is meant to keep in check.
The “Rule of Law,” as the American Founders understood it, is a reflection of an objectively-derived morality, with a recognition of natural law and reason as the basis for practical action. The first principles involved are universal and unbiased. Fundamental inalienable rights are derived from this and all subsequent man-made law must be compatible with, and complementary to, these higher rights and principles. Action ought to come from a respect for, and duty to, these concepts and processes. This is the “government of law, not of men” mentality. Opposite of this is the “government of men, then the law” mentality, which places subjective determination at the forefront, working backwards to mold law, practices, and direct action to these desires. Western thinkers, since at least Aristotle (as expressed in his Politics), have wrestled with this dichotomy, with most, including the American Founding Fathers, concluding it is better to base a society and legal structure on the Rule of Law via reason than that of a Rule of Men that is more arbitrary, less stable over time, and more subject to tyranny and error. The genius of the Founding Fathers was creating a practical political system that struck a logical balance between fundamental inalienable rights, democratic interests, and liberty and security (stability). The Rule of Law concept fits nicely into the true idealized American system of law and justice.
While injustice can occur within either system, it is much more prevalent in the “government of men” system, and is in fact built into the structure of it. The popular “Nobody is above the law” aspect to the “Rule of Law” concept applies in both systems, as does the notion of following set procedures, but as the concept is explored further it becomes apparent these are not necessarily the extent of it nor are they the abused or controversial part in themselves. In a “government of men” system, powerful factions of the day gain unjust influence over the determining criteria, and the rights and interests of others will inevitably be coerced “for the greater good.” This is how “lawfare” gains legitimacy. Similar to some of the valid critiques of “structural discrimination” in the past, proponents of lawfare tactics can claim a legitimacy via legal precedent when really the basis for the actions is illegitimate and/or the situation at issue is not a solid example of the supposed moral/ethical breach the law is meant to address. The error can transcend procedure. Often times the rationalization is sketchy at best, and usually it is inconsistently applied. Inevitably, loopholes will begin to be exploited in the increasingly bloated legal system, allowing the connected to manipulate outcomes with technicalities and guided prosecutorial avenues in their favor. Often lawfare is aimed at seeking revenge for some notion of perceived general error rather than an actual concern for wrong caused by a specific act of injustice. Selective lawfare as a norm allows for the magnification of the petty so blatant wrongs can loom in the background or even become thought of as acceptable. It is also inherently divisive and sure to be politicized.
We are seeing more and more of this, both in our domestic politics and in foreign affairs. In both cases, the best solution is to return to a more Constitituonal system of governance that limits top-down authority, reduces bureaucratic power, simplifies and clarifies law, and restores Federalism, checks and balances, and separation of powers. We must also revisit our norms and expectations regarding prosecutorial discretion, 10th amendment theory, and jury nullification. Regarding foreign affairs, we must also recognize the dynamics of the current anarchic world state system and ensure our actions and expectations from others are not contrary to universal principles and values. Saying one thing and doing another is not indicative of a rules-based system or reflective of the moral principles upon which they are built. We cannot do any of this however unless we start once again respecting the Founding ideals of this nation, that being those of objectively-derived moral principles/maxims and natural law.
With propaganda and social engineering becoming even easier to implement with the aid of internet and social media, powerful interests can have us obsessing over trivial acts by controversial individuals or groups while real crime, corruption, and rights violations ominously increase around us, usually at the hands of the propagandizers. “Lawfare” becomes a tool against the “Rule of Law” when it allows for the systematic destruction of its actual basis, or in other words, creates an inherent contradiction. None of us will be safe if we universalize such a maxim, and ironically, it helps destroy the democratic process and “social justice” goals that Democrats claim to love so much. Don’t be a tool for the lawfare crowd to wield in their quest for political and ideological dominance. The next time you hear someone say “This is a victory for the Rule of Law” ask yourself if their collective words and actions suggest they support America’s founding ideals or if they seek to “fundamentally transform” America towards a more subjectively-oriented system preferred by the Left. While they may or may not have a decent rationale for their statement on the case at issue either way, keeping the answer to this question in mind offers a valuable lens through which to consider their argument.