Stories, Learning & Place

Saturday, July 11, 2009

Decline of the rule of law 18/24
   The way of the judge

The main weakness of a republic of law is that it cannot deliver results better than the people who operate it. If those people will tolerate slavery, so will such a government. In spite of its marvelous achievements, America’s government is now deeply threatened by the distrust and hatred built up through centuries of unjust policies and practices. At this point, no one can be certain that the American government will survive slavery, its worst violation of its espoused principles. The story of race in America is far from over.

Another weakness is that rule of law is easily corrupted into rule by law. Many people now urge patterns of thought that threaten our by law. Among these are the deconstructionists, who, hoping to improve the lot of the downtrodden have sought to delegitimize established institutions. They teach that the world is nothing but power and its theatrical effects, and that no law is more than a disguised power stratagem, designed to bolster some privileged group’s power. It follows that those who are in authority pursue strategies of self-preservation that the governed experience as oppression, and it becomes an act of liberation to attack authority and to disbelieve whatever those who govern might say.

Some of them seem to think that as they dissolve the authority of existing institutions the oppressed and powerless will miraculously become more free and powerful. But others understand quite well that when a government of law collapses, power does not descend on the oppressed. It is grabbed by someone else. In most places, criminals are best organized to take advantage of power vacuums. Though the deconstructionists have been met and challenged on the intellectual front and their power may be waning in academia, their ideology continues to spread through the popular culture.

Under the banner of “multiculturalism” we are developing habits of governance that we should consider carefully. First, it has become popular to require leaders to make no decisions until politically influential groups have been involved, so we create advisory groups or “blue ribbon” panels, usually made up of influential activists who, it is claimed, provide “input” for various groups. These people generally represent interests that will be affected by the proposed government action, and appointments are often given to those who can apply pressure if they don’t get their way. Thus we create a shadow government of unelected functionaries, ignoring the consent of the governed in the name of extending democracy.

Second, as we try to adjust representation to reflect the race, culture, gender and religion of the represented, we set up conflicts between groups. Since anyone can invent categories, the quest for representation so conceived is hopeless. We can conceptualize society as being comprised of any number of groups, so the argument that we can create governing bodies that perfectly mirror the composition of society is naive when it is honest. The same woman can be classified as a lesbian, a Latina, a Buddhist, a soccer mom, or an infinite number of other labels.

Rule of law interferes with the government’s ability to confer benefits on favored groups, so advocates of multiculturalism often dislike the rule of law. They favor what they call “responsive government,” which judges cases taking into account the race of the people involved. Rather than defining the principles that all will abide by, the constraints that none will escape–which is the essence of the rule of law–we place a premium upon membership in groups that are organized to create pressure.

The way to change government is less and less to present arguments and evidence based on principles and more and more to organize to exert influence. This is a movement away from reason toward force. It matters less and less what is just. It matters more and more who we know. We encourage angry, contesting factions.

In the many attempts to fashion policy not by honest argument but by political force, elected government tends to vanish, becoming a mechanism driven by organized mass movements. Most of us have long since become too cynical to be surprised that C-Span coverage of Congress does not feature the intense debates of past ages. The only Senators we see are there to make speeches to the cameras. The rest are off making deals with lobbyists organized to move money and votes.

Much of our current political and cultural turmoil has arisen as a natural consequence of turning the minds of people away from enduring principles and toward getting all that’s possible for one’s group. As we turn away from rule of law and toward identity politics, we find less and less about which we agree. As we lose our belief in higher realities about which we can, through reason, move toward agreement, we find that our legislatures and courts become increasingly unlikely to provide answers that satisfy more people than they offend.

More and more, government comes to be understood primarily as force, and we feel that we are slipping from law toward fear.

Law, we see, tends always to become corrupted, to become an instrument of oppression. To resist the constant downward pull of our lower nature, we need constantly to refresh ourselves at the sources of our highest ideals. We need an education that helps us see past the cronyism, past the power grabs, past the rough and cynical conduct that is always there.

We need to remember that although up close history is always horrific, we have nevertheless made progress century by century toward a world in which people’s lives tend to be less brutal, nasty and short, and we have done this because in all times and places we have had teachers who talked about a different reality.

Because there are other realities, and our best teachers have showed us how to find them.


Posted by Michael L Umphrey on 07/11 at 01:11 AM
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©2009 Michael L. Umphrey
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