Rethinking the Rule of Law

rule of law

As a judge, I am, almost on a daily basis, confronted with the notion of the Rule of Law. This concept is omnipresent, especially in recent legislation, scholarly papers, political debates and media. But, do we really know what this concept means? Sure, in theory it is the rule of laws and not of men (in a broader sense, it entails the equality before law, human rights protection and checks and balance), but are we sure about that? Before tackling this concrete question, which I will try to answer in a concise, plain and precise way, I have first to refer to the question: which world do we live in? I know, to the reader it seems now that this is something too far-fetched and disconnected with the main question. But, I promise, the answer to this question (one of my premises) will open a new viewpoint on the notion of the Rule of Law.

The World in Us

The world we live in is the world we perceive. This is the shortest possible answer to this question.

Our perception of this world is enabled (or constraint) by our sensory system. Our sensory system includes not only receptor cells which react on stimuli from the outside world but also includes the processing of this information, previously transformed by our sensors into readable information to our brain (something like a compiler in computers).

And, in our brains, we create the final picture of the world. Is this picture the representation of the objective world (if something like that exists)? By far, as cognitive science claims, no.

Our whole perception is trimmed to one ultimate goal: survival in an environment (the objective world?) that exists around us and interacts with us (mainly sending us information in form of radiation, light and other stimuli which is prepacked in a way our sensory system can process). Furthermore, our perception, obeying the principle of survival and bearing in mind the limited data processing capabilities of our brains, is guided by emotions which function as a sort of a filter by setting criteria which data is relevant in a concrete situation, enabling us to react in a most efficient way (without complex and time-consuming data analysis) ignoring all other irrelevant data. (When a lion approaches, you simply run and do not care about other things, because you are guided by the emotion of fear).

All said before means that we, humans, as a whole, have an inter-subjective perception, which we falsely call a objective one (it is the result of the subjective perceptions of all humans which, by default, possess the same sensory system). Nevertheless, we humans are the most effective data-processing units, from what we know and until now (think of artificial intelligence).

In this anthropocentric worldview, we describe the observed (perceived) facts and the interaction between them and call the observed results of such relationships, if they are always the same for a given relationship (if nature behaves the same), “natural laws”; i.e. if I push a stone down the hill, it will roll down, not upwards. This is the result of the law of gravity.

But, natural laws do not explain why the phenomenon exists or what causes it. The explanation of a phenomenon is called a scientific theory. And this human ability to create theories is the result of the ability to think in a mode of detached perception (to seek explanation based on incomplete information by inferring). That means that humans not only perceive reality (through the sensory system described above) but also create a reality that is not based directly on any concrete input of the outer world. This ability is an evolutionary advantage because humans, based on previous experience (stored perceptions of the reality which are not reproduced as a whole picture, but are rather resembled every time we try to remember) mentally explore various combinations to predict a result of a planned action. Such mental mode allows us to make predictive models and ideas for future events, or to explain not directly-observed past occurrences.

But, it is risky to assume a future outcome (even past occurrences) without having all the relevant and testable information. There is always, as Taleb remarks, a chance of hidden evidence or random events. Even the nature is only to some point (on the macro level) predictable, but as quantum physics shows (this is the actual state of science) nature on the subatomic level is unpredictable (at least for our cognitive abilities), much like the human free will in the social sciences. It seems that humans, as an inevitable part of nature, are much like quants, or at least it appears to be so. Because of all the aforesaid, it is, as Hayek knew, naive to claim knowledge about future behaviour of humans.

The Uncertain Dynamics of Society

The point is that we exist in an uncertain, random, non-static (maybe some processes appear in the human eye to be static on the macro level, but on the micro level they are not), probabilistic, interconnected and, therefore, fragile environment that we try to cope with by creating unrealistic and static models of our world (even geometry is not a true representation of the perceived natural world, or have you ever seen a perfect circle or triangle created by nature? It is a geometrical idealisation).

Law, as an attempt of formalisation of social life by a “violence-exercising” entity (mostly called a state which has the pretension to monopolise this violence) is an example of an idealised, theoretical and static model. When such model is proclaimed, the basic principle on which a society has to function then becomes an ideology: the ideology of the Rule of Law.

Contrary to law, we have social norms that evolved  “naturally” (for human beings) in numerous social interactions and they function, or when not, they disappear. This principle of “survival of the fittest norms” does not apply, in most cases, to law, since it does not follow empirical and functional criteria (either because of ideological reasons or politicians are afraid of repealing it, under pressure from those benefiting from current law). Think here of the legislation of modern states. You can find there reasonable universal rules (like basic criminal law, tort law, contract law) that have evolved either as social norms or by reasoning of courts in numerous concrete cases and that have been later formalised by legislation (they have been socially proofed). But most of the legislation (laws and by-laws) of modern states is based on ideology, is non-functional and unnecessarily complex (think of excessive criminalisation of all possible behaviour, administrative law, human rights law, intellectual property law, tax law etc.).

The courts of a state are, although more flexible and more “natural” in creating law,  significantly and inseparably under the influence and guidance of legislation which makes them, in the end, part of the ideology of the Rule of Law. Here one should also iterate that even the rise of common law is the result of initial conscious intervention of royal courts in order to establish a uniform law on behalf of the king. But later, dealing with social problems, courts came up with new solutions, which made common law an evolving spontaneous order, in the sense Hayek stated.

What a social norm differentiates from most of law, is that the initial idea has become actual social behaviour through numerous interactions which further lead to adjusting, refining and sometimes, given the stage of social development, to refuting a social (customary) norm (note that the same process generates language). These social processes are inherent to social life and the end-results are not controllable by a central authority. A social norm is in the end is always a constraint to individual behaviour (not always based on a voluntarily basis) in order to make social life relatively predictable (with predictability comes trust, an essential part of functioning societies) and stable, thus possible. Social norms are sticky and durable, which is the reason that it takes time or/and great efforts to change them.

Trying to Regulate Life

The state, too, tries to generate new social norms; only this time through the means of legislation, which leads to more rapidly-expanding, deeply constraints of the freedom of action (the most important asset humans can have, because with freedom of action comes creativity, happiness and progress).

Rules consciously designed by government, as Hayek stated, are “legislation.” We obey legislation, though, only because government will fine, imprison, or execute us if we do not obey. So people who favour a more involved state in almost every aspect of social life, because they are afraid of individual responsibility, do not realise that every time the state “proclaims” and “gives” a right to someone or a social group, it creates on the other side an obligation and burden for someone else or another social group.

Sometimes the state manages to balance these competing interests, but, mostly, it miserably fails, which creates dissatisfaction on both sides of the spectrum because the one in favour of regulation ends up disappointed (the state cannot deliver due to unrealistic and unexecutable promises and, to catch up, it creates even more bureaucracy that intrudes more and more in every aspect of life) and the other side will fight and sabotage the regulations perceived as unfair.

Furthermore, when someone thinks that the state (actually it is an agglomeration of individuals interacting in a mostly-hierarchical network of self-interests, exercising physical force) acts primary in the interest of the majority of people (the common good), he or she should take notice of the empirically-proven minority rule, which Taleb describes as follows:

“It suffices for an intransigent minority — with significant skin in the game to reach a minutely small level, say 3 or 4 percent of the total population, for the entire population to have to submit to their preferences.”

Rothbard, in this sense, emphasizes:

“We must, therefore, emphasize that ‘we’ are not the government; the government is not ‘us.’ The government does not in any accurate sense ‘represent’ the majority of the people.”

Every minority group that wants to impose its view to the majority has (through norm creation) either to use physical force (a short time investment) or persuasive means like ideology (a long time investment). The state uses both strategies, resolving the collective action problem. But, as Taylor noticed:

“Any state, no matter how powerful, cannot rule solely through the use of brute force. There are too few rulers and too many of us for coercion alone to be an effective means of control.”

By creating an ideology, like the sense of belonging to a greater collective (nation) or the concept of the ‘Rule of Law, not men’, the state acts on the psychological (emotional) level of humans which is the deepest possible level to reach for the purpose of controlling behaviour. The state (the ruling social group) creates the perception of legitimacy.

Reality vs. Paper

When the state, based on its perceived legitimacy, legislates, someone (still humans, although one should consider the future with AI development) has to apply the legislation. The first problem arises here, as Hasnas states, that:

“… law consists of contradictory rules and principles, sound legal arguments will be available for all legal conclusions, and hence, the normative predispositions of the decisionmakers, rather than the law itself, determine the outcome of cases. For even if the law were consistent, the individual rules and principles are expressed in such vague and general language that the decisionmaker is able to interpret them as broadly or as narrowly as necessary to achieve any desired result.”

That is why Justice Oliver Wendell Holmes argued that certainty in law is an illusion; judicial decisions rely more on the language of logic than they do on objective enforcement. The second problem, which is connected with the first one, lies in the very same people who interpret and apply law. In this manner, Taylor stated that:

“Legislative edicts are always subject to the biases and agendas of those who interpret them, and will be imposed in this manner by whoever currently wields the power of the monopoly state over society.”

Because of that aforementioned, someone would ask how is it possible that the law is relatively stable and certain. This is the case, as Hasnas concludes, because:

“The stability of the law derives not from any feature of the law itself, but from the overwhelming uniformity of ideological background among those empowered to make legal decisions… It should be clear that, culturally speaking, such a group will tend to be quite homogeneous, sharing a great many moral, spiritual, and political beliefs and values. Given this, it can hardly be surprising that there will be a high degree of agreement among judges as to how cases ought to be decided. But this agreement is due to the common set of normative presuppositions the judges share, not some immanent, objective meaning that exists within the rules of law.”

This is the reason why law seems to “function” and we call that, then, “the Rule of Law.”

* Mahir Muharemović is a judge, social and legal scholar and  author of the book Law: The Essence – A Different Approach. Email him at [email protected]

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