Monday, May 14, 2007

Rule by Law instead of Rule of Law

Interesting discussion at Balkinization of how the Bush administration's corruption of the Justice Department threatens the very fabric of our society, the rule of law.

Although there are various definitions of the “rule of law,” a core element that all definitions share is the notion that the government and its citizens must abide by the law. This idea raises a problem that prompted philosophers as diverse as Aquinas and Hobbes to express doubts about whether the rule of law is possible....

Aquinas put it in these terms: “The sovereign is said to be exempt from the law; since, properly speaking, no man is coerced by himself, and law has no coercive power save from the authority of the sovereign. Thus then is the sovereign said to be exempt from the law, because none is competent to pass sentence upon him, if he acts against the law.”

We have partially solved this conundrum through an institutionalized separation of the “sovereign.” Now there is no single sovereign in control of producing and applying the law, but rather legal actions are divided up between the legislature, executive, and judiciary. Thus it is no longer the case that a sovereign “is bound to himself only,” because each institution has various ways to hold the others accountable to the law.... More specifically, how can we insure that the Justice Department, which holds the coercive power of the federal government, abides by and enforces the law?

We can try internally dividing up the Justice Department [but if] the entire Justice Department is compromised, it is impossible to construct any mechanism that will be capable of “coercing the coercive power.” Under these circumstances, the rule of law, in the sense that the government is bound by the law, would indeed be impossible.

In the end, Hobbes and Aquinas were right: whatever wields the coercive power cannot coerce itself. The only possible answer to this problem was given by Aquinas: the source of coercive power, through a commitment of its own will, must bind itself to abide by the law in good faith. Without this, the rule of law would not exist. It’s a thin reed on which to rest the rule of law, but there is no other way.

For this reason, although it has largely gone unnoticed from the outside, the non-partisan culture within the Justice Department has made a large contribution to the rule of law. Although the heads of divisions are political appointees who change with administrations, the rank and file have always taken pride in being excellent lawyers committed to upholding the law. The political party membership of the lawyer didn’t matter. Administrations may be Republican or Democratic, but never the Justice Department itself. What made this work was the commitment of each lawyer to, above all else, abide by and act consistent with the law....

When the institution that has the authority to enforce the law — wielding the awesome coercive power of the government — becomes “politicized,” the “rule of law” [ceases] to exist.

The system becomes one of “rule by law,” in which those who control the levers of government utilize the law to advance their ends... |Balkinization| (emphasis added)
The comments are interesting as well, if you're interested in reading more.

However, I stand firm in my conviction that Bush and Cheney both belong in prison for their many outrages. The lobotomization of the Justice Department is just the last in a long list of crimes.

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