Saturday, March 9, 2013

Rules of Law

"Once you get to be president, they take you into a little room and they tell you about all the bad guys in the world that you and I don't know about and that's your chief job, to protect people. I know it's bad and we do bad things, but it's a bad world."

Everything would be legal if we had no laws.  Nothing would be legal if we legislated comprehensively enough.

The question: how do we determine what is and is not legal?  How do we measure the impacts of ordaining or rejecting rights explicitly?

Let me put it this way, if we were to abolish any murder law then no one could be prosecuted for the act.  Would our society crumble?

Probably not.  We would most likely see some escalation of violence in our society but I believe our moral fiber is stronger than laws that reinforce what most of us already know--killing sucks.

In this example, the repeal of the law granted an implicit right, the right to kill. It is instructive to note that implicit rights are tenuous. They can be given, removed, or truncated by enacting new laws.  They are also susceptible to exploitation.

So what often happens is a right becomes explicit. In this form, rights are never blanket statements. This is where philosophies and culture collide with the real world.  This is where efficacious actions are evaluated.  And  often, the creation of comprehensive laws has to fail at least partially.

So we end up with laws that are vague, overly precise, or poorly enforced.  Rarely does a society get a law right on the first go.  So we have to have a process of revision.

Let's take a law that accepted murder in most circumstances.  That is, if someone were murdered, it would be presupposed that the perpetrator had good cause for his action.  The right to murder would have been bestowed on the citizenry.

During the evolution of this right it would probably become evident that the government wasn't doing enough to protect some of its citizens, because a protection for murder excludes those that cannot murder for various reasons--specifically weak and powerless individuals.

Basically those without the ability, not the disinclination, to murder cannot take advantage of the right, and in a life threatening circumstance are unable to properly defend themselves.  The protection is disproportionately applied.

Therefore it is up to the state to manage the right either through equalization programs or by executing the right for the powerless.  Alternately, the right may be removed, but only by the state.

This is the rule of law. Laws created by a government and enforced with authority because everyone mutually consents.  In the united states the rule of law is not only enforced by the people but it may be willfully and peacefully changed.

Democracy is a game of Calvinball, the rules change but the mutual agreement to abide by them does not.

In the case of legal murder we are put into an interesting predicament.  The right to kill is given to the people and how they exercise that right could significantly undercut the state.  The state has bestowed an authority it cannot control.  Nothing it imposes limiting the right in any way can be perceived as less than an unsafe truncation.  That is, the state would definitely be perceived as out of control by part of the people regardless of its action.

New laws hurt the empowered.  No laws hurt the disempowered.  Does the state have a higher obligation to the underprivileged purely because they retain less power in society?  Fundamentally, we find ourselves asking if inaction by the state would itself favor certain classes.  Do those that can exercise a right to murder have more rights than those that cannot?  Is it the state's responsibility to be an equalizing force? And if so, how much equalizing may the state impose before it hurts the rights of those already empowered?

At what point does the rule of law, under a consenting populace, break down because evolving standards leave some people behind?

This would ultimately lead to breaks with regular society.  Groups would form that imposed their own rule of law.  Classic examples of these groups include the KKK, the Black Panthers, and lynch mobs.

These groups arise because of a perceived inability of the state to adequately mete out justice.  This failure of the state would throw into stark contrast the opposing forces.

The state's obligation, first and foremost, is to maintain stability and facilitate peaceful alterations to society.  The introduction of groups that decide their own justice continues to undercut the state's power, further reducing the probability of peaceful resolution.

The outcome is largely a product of how much control the state may wield to control these groups and whether their demands may be integrated into peaceful process.

Ultimately, we ask, does the state have the ability and right to create laws that would limit certain freedoms?  And if so, is the state vested with an authority that its citizenry is not--in this example it is whether the prohibition and regulation of murder can be applied differently to the people and the state.

In the real world yes. Many states still have capital punishment and maintain armies for the express purpose of waging legal wars when necessary.  They may enact laws that implicitly or explicitly limit certain freedoms; this is neither new nor aberrant.

It is then in the interests of the state to delineate rights that only a body of people and no individual can hold.  Sometimes people cannot do things unless it is under the banner of a state.  The purpose is to declare some actions beyond the authority of a single individual and hold accountable a regime and not the governed.

"We the people" calls this out.  No individual tends to be held accountable for actions of a group except for the leaders.  And even then there is an implicit assumption that only the most heinous crimes will be prosecuted traditionally.

The point of this exercise is to think through the complexity of a hypothetical issue without adding in the detail of real world application, politics, or even cultural history.  It is an attempt to show how rights distribution can be neither uniform nor complete through any one process.  That's all I have to say about that.