The Myth of the Rule of Law: An Analysis by Bill Buppert

Publisher’s Note: I have a tremendous debt of gratitude to the works of both John Hasnas and Lysander Spooner for inspiring the essay you’re about to read. I wanted to thank my friend, DH, for alerting me to Hasnas. For the longest time I have had a cognitive indifference, which turned to curiosity over time when I hear from so many quarters that we are under the rule of law and not men, and that makes everything better. Nothing could be further from the truth.

Incredible, a mere few days after this published, Supreme(s) Leader Roberts issues this ruling on National Socialists Healthcare in King v. Burwell:

“In this instance, the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase . . . Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”

You simply can’t make this up, even the Soviets would not use such tortured language and logic.

Please take a listen to Tom Woods’ interview with John Hasnas.

Read “The Myth of the Rule of Law,” “The Depoliticization of Law,” and “The Obviousness of Anarchy” by Professor Hasnas.

Edit: An attentive reader who happens to be an attorney pointed out the errors of my 1937-95 quote from Judge Napolitano; it should read under the Commerce Clause. My error and it has been corrected in the text. Napolitano: “Not one piece of legislation was seen as exceeding the scope of Congress’s commerce power.” –BB

“VICES are those acts by which a man harms himself or his property.

Crimes are those acts by which one man harms the person or property of another.

Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.

In vices, the very essence of crime—that is, the design to injure the person or property of another—is wanting.

It is a maxim of the law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another. But no one ever practises a vice with any such criminal intent. He practises his vice for his own happiness solely, and not from any malice toward others.”

– Lysander Spooner

“If the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good? Do not the legislators and their appointed agents also belong to the human race? Or do they believe that they themselves are made of a finer clay than the rest of mankind?”

– Frédéric Bastiat, The Law

America is not a free country. Its government labors under the illusion that the more laws that exist, the more secure and hence the more free a people. At least that’s the party line from the regime apparatchiks. What intellectual rubbish. This is nothing but a shabby justification for a state that grasps power at every turn and applies a tired Marxoid notion of Sovietizing every human transaction to make it transparent to the government (the reverse transparency is nowhere to be found) and use its ample resources of initiated violence to cajole, fine, kidnap, cage, maim or kill the alleged malefactors depending on their level of resistance to perceived state authority.

As Lysander Spooner observes:

If two individuals enter into a contract to commit trespass, theft, robbery or murder upon a third, the contract is unlawful and void, simply because it is a contract to violate natural justice, or men’s natural rights.” Unless you are the government.

Most of this rests on the iconic notion of the rule of law. Like the Constitution and limited government, the idea is assumed a priori to be correct for one reason or another. But like the two items I just mentioned, it does not stand any man’s scrutiny when examined.

So what is the rule of law?

John Hasnas:

[T]he law as a body of definite, politically neutral rules amenable to an impartial application which all citizens have a moral obligation to obey.”

Hasnas does a brilliant job of unpacking this nonsense and I urge my readers to read the full text of his 1995 examination of the rule of law in which he destroys the notion in detail. I wanted to add two observations to his magisterial essay.

First, there is no such thing as objectivity despite the mewlings of both presstitutes and attorneys. Even those of us who consciously practice critical thinking, bias is absolutely unavoidable in the human condition. We are all discriminatory in the rhetorical sense. We all have limited time and resources that inform our worldviews and perspectives; we all have lower evidentiary bars for information favoring our belief systems. This is confirmation bias. One can see it in any controversy. Whether a religionist or an atheist, both sides will debate their respective views from the bias filters they consciously and unconsciously employ for apprehending the world. This applies to practically any great controversy that happens to entertain people at the moment.

Per politics, the myth of the rule of law is ideal for creating, maintaining and expanding societal controls at the point of a gun. All politics is based on the use of violence. If we were honest, we’d call all politicians violence brokers. That is all they are, they dispense the rules for threatening and ultimately killing people by approved government agents. In America, the legislative branch of thuggery formulates the sparse guidelines for the latest variation in the application of the stick to a targeted victim group and then the executive agencies and the armies of bureaucrats crank out tens of thousands of pages of regulations that become the enforcement edict of the hundreds of thousands of badged and armed government bureaucrats who are the pointy end of all politics.

Many in my readership have had the misfortune of going to college (including myself) and suffering through the usual suspects in the political science department listening to over-educated half-wits drone on about the advantages of their favored system of institutional violence. The political science professorate is the intellectual soothsayer caste of the coercionists. Thought experiment: with extraordinarily few exceptions, what would the professor say to a class if he could not discuss the initiation or use of violence to keep government afloat? The class would go home early.

Second, I mentioned the pointy end of politics, the police. This merry band of Leninists has one mission, the enforcement of all laws. They can’t pick and choose and they are uniformly proud of this notion of alleged dispassion and objectivity but like the police protection of politically connected pedophilia in the UK and the rapidly cascading escalation violence of the police nation in the US, one can see that police have the primary function of obeying their political masters and doing what they are told. This makes one think that the  Nuremberg trials may have been mistaken in their verdict of condemning men who simply follow orders. I simply cannot grok the apparent cognitive indifference on the part of the government that that was then and this is now.

The impossible moral calculus of all government: immoral means will yield moral ends.

Take any perspective of this legendary notion of rule of law and you can’t escape that it’s rule of men in their respective interpretive frameworks. This especially applies for those in power who manipulate and calibrate the levers of “justice” in the whole corrupt combine of the government-legal complex in the United Sates. many escape the grips of the very law they press upon the Helots.

Look at the sheer hubris and madness that is the Drug War in the US. Cannabis may finally be released as a de-scheduled and controlled substance (controlling a vegetable, fascinating) yet how does the system make up for all the past abuses of the Drug War to do so much more than make America “safer”. Many before me have ably documented the abuse of this throughout the entirety of the “legal” system in the US. Yet big pharma produces SSRI drugs that are the primary common element among all serial and mass shootings. The only exception to this is the apparently drug-free shooting rampages conducted by the government police against the American populace over the decades.

So let’s get to the fulcrum of the Hasnas argument, which is quite compelling.

“I would argue that this ability to maintain the belief that the law is a body of consistent, politically neutral rules that can be objectively applied by judges in the face of overwhelming evidence to the contrary, goes a long way toward explaining citizens’ acquiescence in the steady erosion of their fundamental freedoms.”

Political neutrality much like objectivity is a quaint notion with no foundation in reality whatsoever.

He goes on:

“I refer to the myth of the rule of law because, to the extent this phrase suggests a society in which all are governed by neutral rules that are objectively applied by judges, there is no such thing. As a myth, however, the concept of the rule of law is both powerful and dangerous. Its power derives from its great emotive appeal.”

That robed government employee is the arbiter and apparent final voice on what is legally correct and what is not. Please keep in mind that the apex body of these creatures in the land, the Supreme Court, ruled nothing under the Commerce Clause unconstitutional that came on their docket between 1937 and 1995. Nothing. This means that these great minds took every congressional and executive act as the law of the land with no reservations if it had to do with two magic words: Commerce Clause. This would include the proto-communist nonsense of the FDR administration through the first Clinton residency in the Offal Office. This would include the infamous Wickard V. Filburn to the “infringing” 1968 Gun Control Act. Let that sink in. The legal mandarins gave Congress a 100% score in moral and Constitutional rectitude during that time.

Those of you still foolish enough to be registered to vote, ask yourself honestly: are all government employees treated identically to citizens when it comes to perceived injustices, infractions and violations of law? Really? All of these psychopaths are in the same legal morass that all of you potentially are?

Hasnas makes another supposition about this hallowed body of law:

“This is because unlike the laws of nature, political laws are not consistent. The law human beings create to regulate their conduct is made up of incompatible, contradictory rules and principles; and, as anyone who has studied a little logic can demonstrate, any conclusion can be validly derived from a set of contradictory premises. This means that a logically sound argument can be found for any legal conclusion.”

Mind you and this is no snark against the good Dr. Hasnas, this is all intuitively obvious. We live in a country that embraced slavery in the Constitution (unlike the Declaration of Independence), imposed unlimited taxation on everyone it could target and used this as the basis to wage war on the rest of the world since 1871 after the Second American Revolution was sadly concluded in 1865 and the aboriginal American pogrom was continuing apace swimmingly. I merely mention this to briefly buttress the point.

Anyone who has ever been in an American courtroom at any level gets an uncomfortable feeling as a defendant that you and your privately retained defense attorney are the only non-government employees in the arena working at the “courthouse”. Yet all deliberations and sentences are dispassionately and objectively delivered? I don’t think so. The system has two primary missions: it guarantees obedience and acts as a concierge mechanism to get yet another body into the correctional pipeline for fun and profit.

Hasnas: “This is because the law is always open to interpretation and there is no such thing as a normatively neutral interpretation. The way one interprets the rules of law is always determined by one’s underlying moral and political beliefs.”

Again, normal humans who haven’t been to law school grok this intuitively. Of course the absence of objectivity and the built-in bias wiring of all human beings would agree with this conclusion. Yet we all know someone who thinks that the law is an objective arbiter and in the end, justice is served. There is only one way I have ever seen justice served for the greater good. That is when the government decriminalizes a thing or takes it off the statute books if it is a malum prohibitum offense. Who is the victim when you can’t marry another race, alter your consciousness as you please or read books you choose? You guessed it, the government.

Rule of law is a government scam and the state is a bloody terrific grifter when it comes to moral inversion.

The other horrific injustice remains the ability of the state to take a few sparse words like “general welfare” and “commerce clause” and turn them into empires of moral disgrace, mass imprisonment and choking regulation that makes Kudzu look downright coy in growth. Four bloody words. Empowered by the three most violent words to human freedom: rule of law. Government law is competing psychopathic ecologies of statist control. And just in case you suppose this is a federal issue, my tiny local burg stacks legal miscarriage upon juridical travesty on an annual basis lorded over by robed government employees so intellectually and morally enfeebled, the NKVD would blush. The politicos and those connected to the badged brotherhood tend to skate and in some cases, quite literally get away with murder.

Hasnas observes another sordid implication in the rule of law and all of us have seen this as neighbors turn in parents for free range children or the Department of Fatherland Security insistence on mimicking Cuban neighborhood snitch programs to inform on your fellow taxpayers.

“But the myth of the rule of law does more than render the people submissive to state authority; it also turns them into the state’s accomplices in the exercise of its power. For people who would ordinarily consider it a great evil to deprive individuals of their rights or oppress politically powerless minority groups will respond with patriotic fervor when these same actions are described as upholding the rule of law.”

So it turns out that the rule of law even acts as a force multiplier for the state. Fear and obedience are the brick and mortar of the state and the collectivists are the stonemasons. It appears the rule of law is a vital part of this recipe for making a free people slaves.

“The reason why the myth of the rule of law has survived for 100 years despite the knowledge of its falsity is that it is too valuable a tool to relinquish. The myth of impersonal government is simply the most effective means of social control available to the state.”

Again, Hasnas ably identifies the means by which the state has become so omnipotent and institutionalized the Stockholm Syndrome on a scale heretofore unimagined but harnessed by the state.

And here is the crux and distillate of the argument so eloquently stated by Hasnas:

“For with the acceptance of the myth of the rule of law comes a blindness to the fact that laws are merely the commands of those with political power, and an increased willingness to submit oneself to the yoke of the state. Once one is truly convinced that the law is an impersonal, objective code of justice rather than an expression of the will of the powerful, one is likely to be willing not only to relinquish a large measure of one’s own freedom, but to enthusiastically support the state in the suppression of others’ freedom as well.”

Rule of law is a myth. Yet another creation of the government supremacists to convince a slave people they are free.

Treason may very well be the word one uses to practice real freedom. That is certainly what the US government believes.

Read. Wake up. Resist.

“It is as if the mission of modernity was to squeeze every drop of variability and randomness out of life— with the ironic result of making the world a lot more unpredictable, as if the goddesses of chance wanted to have the last word.”

Nassim Taleb, Antifragile

“A government that can at pleasure accuse, shoot, and hang men, as traitors, for the one general offence of refusing to surrender themselves and their property unreservedly to its arbitrary will, can practice any and all special and particular oppressions it pleases.”

– Lysander Spooner

33 thoughts on “The Myth of the Rule of Law: An Analysis by Bill Buppert”

  1. I can say one thing, if there is one thing people can take away from your writings it’s an expanded vocabulary. I think I open up my thesaurus as much as I follow your links for more reading material. Thank you for that.

  2. I haven’t read through this excellent piece yet, but when I do, I’ll bet the idea conveyed of rule of law is really rule by “law”. No different than any construct of tyranny.
    It is time to go totally abo, it is time to nullify the bastards.

    The two tyrants Buckhannon and Lincoln have nothing on the rats called congress and their usurper cum leader of the voluntary human extinction movement. You watch, this “fast track authority” they gave the statist cabal of the “executive” branch, is a prelude to fabricating an illusion of power to impose literally any totalitarian diktat imaginable. Attempts to outlaw every fist which can be wrapped around a rifle is where this lunacy is heading. It is the main goal. They are desperate to disarm those who are afraid and will give up their arms so they can go after those of us who will never submit.

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    1. Thad,

      Indeed, I have, I literally have the T-Shirt. Hoping to get on in the future, timing hasn’t been right in the past.


      1. They do their research and very well I might add. Sure they are long, but not hard to digest or understand. It would good to hear you bounce ideas off of them and perhaps give them a better insight into the world as it is and not the illusion we construct. Cheers.

  4. As usual, a brilliant essay. As time goes by I am more aware of the sham that has been shoved down our throats. The other day I got into a discussion with someone about the constitution and said “it’s a useless screed”. You would have thought I had committed murder. This person said in a contemptuous voice “Don’t you know that your freedom comes from the constitution?” I played along. The conversation went something like this –

    Me – “So you don’t believe in the Declaration of Independence?”
    Him- “Well of course I do”
    Me – “You believe our rights are unalienable then?”
    Him – “Yes”
    Me – ” You do know then that unalienable means that they are not transferable? They cannot be usurped by another or a group of others”?
    Him – “Okay, what is your point?”
    Me – “My point is pretty simple. The constitution does not provide me freedom. I already have freedom because of my humanity.”
    Him – “But the constitution and bill of rights assures that you keep that freedom”
    Me – “So my rights come from the state? That is what you are saying. A document crafted by a group of men gives me my freedom. My freedom isn’t unconditional, it is dependent upon some words written on a piece of parchment.”

    The conversation went on and on into voting and consent. I enjoy taking people on word adventures, fleshing out their intentions and motivations and beliefs. In the end, this person believes that freedom comes from the state. That’s the bottom line. Most folks believe with every fiber of their being that whatever personal freedom they perceive they have comes from government.

    I read “The Myth of the Rule of Law” a couple of years ago and it continues to be one of my favorite essays on the subject. Thanks for expounding on it Bill and giving us your perspective.

    1. I think you misunderstand gov. doesn’t give are freedom but God, God of the bible the God of Israel not Allah and words of the Constitution were written so men couldn’t twist them without revealing their true nature. Government is the servant of the people to inact moral laws based on God’s laws love your God with all your heart, love your neighbor as yourself and the constitution would only work by a moral society. When our government goes beyond that position of servant the constitution provides a remedy for that as well. The best read you might consider is the Holy Bible

      1. With all due respect, I’m a Christian abolitionist and have read the bible. The constitution is a sham. 95% of the words in it pertain to government power. Article 1, Section 8 and the 16th amendment alone are a recipe for tyranny. Your contention that “Government is the servant of the people..” is just pure bovine scat. It reflects the prevailing viewpoint of many Christians and a perverse misinterpretation of Romans 13. When Paul wrote those words where was he? In prison for crimes against the state! Government does nothing, NOTHING moral. Its very existence is based upon the use of force and threat of violence in direct violation of what Christ taught. A strong case could be made that Christ was an anarchist. He was at odds with government from before his birth until his death. The last sentence you wrote is laughable. From its inception the government exacted violence and grew by way of immoral behavior. Just ask the naive peoples who were exterminated like vermin and herded into prison camps. Not exactly moral behavior was it?

  5. Proverbs 24:19 Fret not thyself because of evil men, neither be thou envious at the wicked:
    20 For there shall be no reward to the evil man; the candle of the wicked shall be put out.

  6. GREAT arguments, BUT we have a problem,THE GOVERNMENT is training to KILL everyone,and a great many will die soon,the rule of LAW is and always has been a joke, just to few knew it, NOW they have a very real problem to deal with,FOREIGN TROOPS IN OUR LAND,in total VIOLATION of that beloved rule of law,which only a few are having a problem with,SOON through,the whole country will be having a problem with it,THE UN has and always was nothing but KILLERS,RAPISTS,and child molesters,and THEY ARE IN AMERICA in mass numbers now,THEY PLAN to hand america TO CHINA,and the sheep will not see the truth till its way to late,the FEMA DEATH CAMPS will be over flowing for a while.

    BUT what worse is the sheep will gladly go to them for help that won’t EVER be coming,ONLY DEATH, with that in mind,PRAY TO THE LORD,YOU WILL BE FOUND WORTHY TO ESCAPE THE HORRORS OF WHAT IS COMING,and what ever you do “DON”T TAKE THE CHIP or THE MARK OF THE BEAST”,most, if not all americans will be killed in the coming WAR here shortly,MAKE SURE your LAMP is full of oil (prayers), and OUR LORD will find you worthy to enter into HEAVEN…………..

  7. Bill, it is just as you say. Another writer, Jon Rappaport, wrote an article along this vein that stuck in my mind. His premise is that we do indeed live in “the matrix”, that what we think we see is not what is present. Your article substantiates that premise. What we think we see, live and experience is not what is actually present.

    I tell my wife that we are only free to move about on the paved areas, and even then there are permits to be obtained. We are restricted to a home on a concrete pad, driving or walking along a concrete or asphalt path, and parking again at one of two places: a place to earn money or a place to spend it. All other places are off limits or are claimed by the government as its property. We may walk on them if we pay the appropriate fee.

    And Bill, a home in the country is worse. The person who paid for the land is subordinate to the county government who will most definitely tell him what he cannot do with his land.

    I appreciate the accuracy of your observations. Every tax law comes at gun point. Every movement towards individual liberty ends at state-required death or imprisonment.

    The state does indeed claim sovereignty over everything. Our children are claimed as property of the state. Our churches are required to speak within defined parameters, and on and on.

    Does any of this matter? As long as people are properly fed, clothed, sheltered and have opportunities to increase their wealth through reasonably fair means, does it matter that the government is in fact a slaver?

    You bet it matters, because while Joe Six-Pack is stupidly traversing the various patches of asphalt in his perceived freedom, the slaver is strengthening his grip on the throat of all of us, making the bands of iron restrictions ever tighter until we get to where we are today, where people are afraid to speak out about anything. Through obvious, blatant police murder with no prison for the killers, people are publicly conditioned to shut up and obey the politically correct dogma that is broadcast efficiently via TV.

    With a smile and a joke, the TV news reminds us to behave or bad things happen, and the network entertainment sterilizes all life into atheistic or satanic social engineering by repeating the same politically correct values on a thousand subtle ways.

    The conditioned response to submit is so deeply stained upon our psyche that people do not notice their immediate compliance when confronted with a “law”. Yet we all feel our compliance. We feel a brief spark of resistance followed immediately by fear of state retribution and the eventual and inevitable consequence of acting free: state mandated death.

    So large-scale submission is immediate with only the most delicate ripple across the surface of the matrix.

    The good news is this: All of this is about to climax with global totalitarianism and jack-booted murder universal – closing with the promised remaking of the earth by Jesus, The God of Gods. I do not fear death, in fact I yearn to be free from this world. But I notice that my will to live is exceptionally strong. Perhaps we will benefit most greatly by reminding one another that this life is not our lonely life, that we followers of Jesus are guaranteed a home in paradise when our physical body expires.

    It will be good to go.

    1. Krikey, Jerry, that’s a hell of a jeremiad. Thanks for taking the time to write a riposte so thoughtful. A home whether rented or owned in the USSA is a pain in the rear per creeping government busybodies and worse..

      I look around and we ARE slaves de jure and de facto.

      Keep your powder dry.


      1. Bill,
        I get talked at alot that I should “own/buy”a home, I laugh at all of them. I remind them you MIGHT own the stuff from the ground up, but you really just rent even if you think you own. It can be taken at anytime as wished by governmental types, banks who sneak in and devalue you land/property or major corperations as they see fit. You do not own your home then. I normally get a look from them like I just told them Santa is not real.

        1. Thad,

          Amen, I owned houses for years and finally sold our last one in 2013. What a relief. If only I could recover the hundreds of thousands of FRNs wasted on the “American Dream”. The only thing you own in the USSA is your disobedience if you take hold of it and keep it.


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  9. Great essay! Oh no! Now I’ve been logged as approving of your point of view.

    I have been dismayed by the growing number of regulations that have every other person becoming the enforcer of such nonsense.

    Today at the pharmacy I was told that I could not pick up a RX for myself because my Driver license had expired. It’s a photo ID I responded, it proves that I am the correct person isn’t that enough?

    No it’s not, it must be a CURRENT license. The enforcer behind the counter that had now donned a DMV hat told me that a CURRENT form was either a State issued photo ID, a Passport, or Military ID.

    Papers, Papers Please, thought was running through my head.

    Having none of those I learned a family member’s Drivers License that was Current would work. Luckily my wife was with me so I returned to our car and got her CURRENT Drivers license. Upon presenting it the Enforcer informed me that I still could not have my RX because she had to be present.

    My wife had knee surgery this week and has a full length knee immobilizing brace on I told the enforcer and I’m not going to make her walk the entire length of this store.

    Maybe it was the eye that had started twitching, or my delivery of that statement that let the enforcer know that she needed to provide a solution or I might just create a scene.

    She told me I could come through the drive-thru to pick it up then.

    I returned to the car telling my wife about how regulations had gotten to the point that people that followed the Law where becoming real nice little Nazis and didn’t even know it.

    To end this story when I got to the drive thru I had a different clerk that handled it as it should have been from the beginning. She took the ID and debit card and gave me my RX. Resistance to tyranny is a individual effort. That first clerk wasn’t resisting it at all, I actually have to wonder if making me jump through hoops wasn’t something she enjoyed! I was just glad that it wasn’t 1930s Germany and I was Jewish cause that first clerk would have called the State cause It’s the Law.

    1. Merlyn,

      Fear and obedience is the brick and mortar of the state and the collectivists are the stonemasons.

      One of the unintended consequences of the planetary Stockholm Syndrome in non-state repellant regions is that the state is enabled by most of the creatures it zoo-keeps through unintended consequences that benefit the lamprey that is government. The state is a virus or a remora that turns the host it feeds upon into the shambling zombie-like civilization that has occupied the planet for six thousand years. All the legal niceties and patriotic pablum and pretty rags on poles and bad music and all the centuries of programming are designed to convince the victim they are in the drivers seat while the state vampire exsanguinates them at will. Look at history, government is the planetary apex serial killer bar none. Even natural disease can’t keep up.

      You’ve awakened to the danger and now your interpretations of everything happening around you is tuned correctly. The coproaches don’t protect and serve, they are the pointy end of all politics and that clerk in the store is simply doing what it is programmed to do. Enforce obedience no matter the consequences. It hopes to get a wink and a nod from the enforcer drones if they arrive. It has done it’s duty.

      Read. Learn. Resist.

  10. From: The Myth of the Rule of Law by John Hasnas

    [in part…]

    I would argue that this ability

    ▪ to maintain the belief that the law is a body of consistent, politically neutral rules
    that can be

    ▪ objectively applied by judges in the face of overwhelming evidence to the contrary,
    goes a long way toward explaining citizens’ acquiescence in

    ▪ the steady erosion of their fundamental freedoms.

    To show that this is, in fact, the case, I would like to direct your attention to the fiction which resides at the heart of this incongruity and allows the public to engage in the requisite doublethink without cognitive discomfort:

    ▪ the myth of:

    ▪ the ‘rule of law’.

    I refer to the myth of the ‘rule of law’ because, to the extent this phrase suggests a society in which

    ▪ all are governed by neutral rules that are objectively applied by judges,
    there is no such thing.

    As a myth, however, the concept of the rule of law is both

    ▪ powerful


    ▪ dangerous.

    Its power derives from:

    ▪ its great emotive appeal.

    The rule of law suggests
    ▪ an absence of arbitrariness,
    ▪ an absence of the worst abuses of tyranny.

    I have been arguing that the law

    ▪ is not a body of determinate rules that can be objectively and impersonally applied by judges;

    that what the law prescribes is necessarily determined by:

    ▪ the normative predispositions of the one who is interpreting it.

    In short, I have been arguing that

    ▪ law is inherently political.

    If you, my reader, are like most people, you are far from convinced of this. In fact, I dare say I can read your thoughts. You are thinking that even if I have shown that the present legal system is somewhat indeterminate,

    ▪ I certainly have not shown that

    ▪ the law is inherently political.

    Although you may agree that the law as presently constituted is too vague or contains too many contradictions, you probably believe that this state of affairs is due to

    ▪ the actions of the liberal judicial activists,


    ▪ the Reaganite adherents of the doctrine of original intent,


    ▪ the self-serving politicians,

    ▪ the _____________________(feel free to fill in your favorite candidate for the
    group that is responsible for the legal system’s ills).

    However, you do not believe that the law must be this way, that it can never be definite and politically neutral. You believe that

    ▪ the law can be reformed;

    that to bring about an end to political strife and institute a true ‘rule of law’, we merely need to

    ▪ create a legal system comprised of consistent rules that are expressed in clear, definite language.

    – – – – – [aside] – – – – –
    I have finally come to the feeling [realization?] that when John Hasnas talks about “rule of law” he is not talking about law that applies to everyone equally whether to the manor born or the stable, he appears to be talking about “laws” and their interpretation..?
    – – – – – [end aside] – – – – –

    I have suggested that because
    the law consists of contradictory rules and principles,
    sound legal arguments will be available

    ▪ for all legal conclusions,

    and hence, the normative predispositions of the decision makers, rather than

    ▪ the law itself,

    ▪ determine the outcome of cases.

    It should be noted, however, that this vastly understates the degree to which

    ▪ the law is indeterminate.

    For even if the law were consistent,

    ▪ the individual rules and principles are expressed in such vague and general
    language that the decision maker is able to interpret them

    ▪ as broadly or as narrowly as necessary to achieve any desired result.

    To see that this is the case, imagine that Arnie and Ann have graduated from Harvard Law School, gone on to distinguished careers as attorneys, and later in life find, to their amazement and despair, that they have both been appointed as judges to the same appellate court. The first case to come before them involves the following facts:
    A bankrupt was auctioning off his personal possessions to raise money to cover his debts. One of the items put up for auction was a painting that had been in his family for years. A buyer attending the auction purchased the painting for a bid of $100. When the buyer had the painting appraised, it turned out to be a lost masterpiece worth millions. Upon learning of this, the seller sued to rescind the contract of sale. The trial court granted the rescission. The question on appeal is whether this judgment is legally correct.

    Counsel for both the plaintiff seller and defendant buyer agree that the rule of law governing this case holds that

    ▪ a contract of sale may be rescinded when there has been a mutual mistake
    concerning a fact that was material to the agreement.

    The seller claims that in the instant case there has been such a mistake, citing as precedent the case of Sherwood v. Walker(13). In Sherwood, one farmer sold another farmer a cow which both farmers believed to be sterile. When the cow turned out to be fertile, the seller was granted rescission of the contract of sale on the ground of mutual mistake(14). The seller argues that Sherwood is exactly analogous to the present controversy. Both he and the buyer believed the contract of sale was for an inexpensive painting. Thus, both were mistaken as to the true nature of the object being sold. Since this was obviously material to the agreement, the seller claims that the trial court was correct in granting rescission.

    The buyer claims that the instant case is not one of mutual mistake, citing as precedent the case of Wood v. Boynton. (15) In Wood, a woman sold a small stone she had found to a jeweler for one dollar. At the time of the sale, neither party knew what type of stone it was. When it subsequently turned out to be an uncut diamond worth $700, the seller sued for rescission claiming mutual mistake. The court upheld the contract, finding that since both parties knew that they were bargaining over a stone of unknown value, there was no mistake. (16) The buyer argues that this is exactly analogous to the present controversy. Both the seller and the buyer knew that the painting being sold was a work of unknown value. This is precisely what is to be expected at an auction. Thus, the buyer claims that

    ▪ this is not a case of mutual mistake


    ▪ the contract should be upheld.

    Following oral argument, Arnie, Ann, and the third judge on the court, Bennie Stolwitz, a non-lawyer appointed to the bench predominantly because the governor is his uncle, retire to consider their ruling. Arnie believes that

    ▪ one of the essential purposes of contract law is:

    ▪ to encourage people to be:

    ▪ self-reliant and careful in their transactions,

    since with the freedom to enter into binding arrangements comes

    ▪ the responsibility for doing so.

    He regards as crucial to his decision the facts that

    ▪ the seller had the opportunity to have the painting appraised

    and that

    ▪ by exercising due care

    ▪ he could have discovered its true value.

    Hence, he regards the contract in this case as

    ▪ one for a painting of unknown value

    and votes to

    ▪ overturn the trial court and uphold the contract.

    On the other hand, Ann believes that the essential purpose of contract law is to:
    ensure that all parties receive a fair bargain.
    She regards as crucial to her decision the fact that the buyer in this case

    ▪ is receiving a massive windfall at

    ▪ the expense of the unfortunate seller.

    Hence, she regards the contract as

    ▪ one for an inexpensive painting

    and votes to uphold the trial court’s decision and grant rescission. This leaves the deciding vote up to Bennie,

    ▪ who has no idea what the purpose of contract law is,

    but thinks that

    it just doesn’t ‘seem right’ for the bankrupt guy to lose out,

    and votes for rescission.

    Both Arnie and Ann can see that the present situation bodes ill for their judicial tenure. Each believes that the other’s

    ▪ un-principled political manipulations of the law
    will leave Bennie, who is not even a lawyer, with

    ▪ control of the court.

    – – – – – [aside] – – – – –
    To me, “Rule of Law” means that no matter what a “law” is interpreted to mean, that ‘interpretation’ applies to ‘high’ or ‘low born’ – it applies equally to every person. If it is agreed that:

    ▪ a contract of sale may be rescinded when there has been a mutual
    mistake concerning a fact that was material to the agreement.
    [T]he seller was granted rescission of the contract of sale on the
    ground of mutual mistake(14)

    ▪ since both parties knew that they were bargaining over a stone of
    unknown value, there was no mistake. (16) Both the seller and the
    buyer knew that the painting being sold was a work of unknown
    value. This is precisely what is to be expected at an auction.
    Thus, the buyer claims that this is not a case of “mutual
    mistake” and the contract should be upheld.

    i realize there are two [2] cases that the parties are relying on for stare decisis and it is not this fact that is confusing; it is not important which rule [“mutual mistake” or “unknown value”] will be chosen, just that whichever rule is decided on to take precedence in future cases, all future cases brought by stable boy or king should be decided on in favor of the rules of the law that was chosen and applied equally to stable boy or king.

    john hasnas is using the term “rule of law” in an interpretation that does not jibe with an interpretation that i thought i had grasped..?! as for example:

    From: A LAWLess Country: by Walter Williams, Dec. 10, 2014

    How do we determine violations of rule of law? It’s easy.
    See whether the law applies to
    ▪ particular Americans,
    as opposed to
    ▪ all Americans.

    do i now have to qualify what is meant by “rule of law” every time someone asks what the term means so that it is not confused with mr. hasnas’ explanation?

    i have to do this now with the word “anarchist” because the press refers to ‘holigans’ as “anarchists” when that is nowhere close to the original definition from the greek – “without rulers” [not ‘without rules’.]

    I do not find disagreement with his definition:

    John Hasnas on Rule of Law:
    “[T]he law as a body of definite, politically neutral rules amenable to an impartial application which all citizens have a moral obligation to obey.”

    Unless by “citizens” this should exclude rulers, kings, clergy, officials, et al.
    – – – – – [end aside] – – – – –

  11. there is no myth about the Rule of Law – it exists. the myth is that it is followed – it is not!

    is the golden rule a myth because it is not followed?

    to say that the ‘rol’ is a myth is to say that the 10 commandments are a myth; not obeying or following the precepts of a rule does not a myth make.

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  19. Anne-Marie Mazur

    Fred Rodell: Woe, Unto You Lawyers. Read it. Written in 1939. Far superior to Hasnas, who is also excellent, but Rodell’s book is a masterpiece.

    Evgeny Pashukanis is another great author who wrote about the religious bullshit known as LAW.

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