23 Jun 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.
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