The Myth of the Rule of Law

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Wednesday, January 10. 2018

The Myth of the Rule of Law

Thanks to a reader for forwarding the link to this brilliant 1995 article from the Wisconsin Law Review by John Hasnas.

It's not just about "how to think like a lawyer." It's about how political law is, and about how much doublethink is required to understand American law. He makes the case that good laws must be squishy. He offers excellent examples too.

From The Myth of the Rule of Law:

Specifically, I intend to establish three points: 1) there is no such thing as a government of law and not people, 2) the belief that there is serves to maintain public support for society's power structure, and 3) the establishment of a truly free society requires the abandonment of the myth of the rule of law...

Posted by The Barrister in The Culture, "Culture," Pop Culture and Recreation at 13:14 | Comments (8) | Trackbacks (0)

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Great article. Except for one thing. The author leaves out the notion that maybe the law is a search for rules, to reduce as many situations as possible, to clear and objectively applicable rules. Much of the time it can't happen. But if it can happen, and we can reduce the amount of politics, subjective judgment calls and scientific wild ass guesses inherent in much judicial decision-making, it is a good thing.

I follow Scalia's argument here. Not everything can be reduced to a bright line rule. But where it can, it should, if for no other reason than to make the law more predictable and out of mercy to non-lawyers.

#1 Jablonski on 2018-01-10 13:28 (Reply)

I can't help but think that in the last election the Democrats paid so little emphasis on the importance of "control" of judicial appointments should their self-anointed queen Hillary fail - an epic miscalculation.

Thanks for the good read. I've saved it.

#2 Bob in Stafford on 2018-01-10 16:07 (Reply)

The article was weasel words on steroids. It lays out the law, a sound interpretation of it, then the liberal emotional interpretation of the law and tries to say the two interpretations are equal.

Shameless

#3 jpm on 2018-01-10 17:21 (Reply)

I liked it greatly. I echo Jablonski's reason why it might not be the last word, however.

#4 Assistant Village Idiot (Link) on 2018-01-10 18:29 (Reply)

I can tell you from my own personal experience that the law in America just doesn't work. I got arrested, and charged with a crime. When I went before the Judge, I was not allowed to speak. The Judge said that my attorney could speak for me. Further, only a licensed attorney could represent me; even though many paralegals and non-lawyers could have done so just as effectively. The legal profession is operating a very expensive and profitable cartel.

And to make matters worse, court costs and fines are out of control. http://www.washingtonsblog.com/2018/01/tale-two-americas-rich-get-richer-poor-go-jail.html

The system needs to be redesigned so that anyone can represent a plaintiff or defendant; and so that the fines and fees are as low as possible. In fact, it wouldn't be a bad idea to hold a referendum: What should be the price of a speeding ticket? $10.00 $50.00 $300.00

#5 Ron Liebermann on 2018-01-10 21:33 (Reply)

Justice is open to everyone in the same way as the Ritz Hotel. ~Judge Sturgess>>
So true....

#5.1 RL on 2018-01-10 21:55 (Reply)

I'm not sure I understand the story of dirty coal and clean coal per the law.
But I did ask the state milk inspector what the state rules are. He couldn't tell me, but did tell me what MY Company rules are.
"No, that is My company rules. The state ones are more lax than that." He couldn't even find them on the state website.
So when you have a rule that is "No more than 10 ppm, but the test is accurate to 2 ppm" how do you prove you didn't break the law, at say, 8 ppm?

#6 Jerry on 2018-01-10 22:54 (Reply)

I couldn't help but think of the controversy over "net neutrality" as I read this article.
It illuminates how we got to a place where half the country can't imagine order in the digital world without the heavy hand of the state.

#7 Jane on 2018-01-11 11:55 (Reply)

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Wednesday, January 10. 2018

The Myth of the Rule of Law