Rule of Law or Rule of Men

The rule of law is an idea with a long and noble history in Western civilization.  The notion is that there are laws of moral behavior and that these laws should have priority over the whims of people, particularly of people in positions of power.  Especially in the early United States, the idea that laws should rule as opposed to men was taken as the ideal.  However, this idea needs a bit of clarification in order to be more than a cover for tyranny and dehumanization.

The reason why this clarification is necessary is because, to put it simply, the law does not enforce itself.  Law also does not elaborate on itself without human intermediation.  This means that, however much we may desire the rule of law, we're stuck with the rule of men.  And furthermore, if the rule of law is theoretically in force, the men in power gain a cloak of legitimacy which they do not deserve.

Consider the naive idea of the rule of law as enforcement of the dictates of a legislative body.  Under this system, there exists a group of people who theoretically possess the moral authority to produce new laws.  Once they produce these new laws, they are to be obeyed and enforced.  The legislative authority may change its mind at a later date, but the content of the law is still subject to its sole discretion.  Now, being merely human, the legislative authority will at some point try to do something contrary to justice.  Suppose it does so, and someone is charged with violating the unjust edict.  Here we can see both the potential for tyranny and for dehumanization.  If the court and the enforcers carry out the unjust edict, they are guilty of abetting injustice themselves.

Even worse, if they buy into the idea of the rule of law over the rule of men, then they are guilty of abdicating their own moral responsibility.  They are the ones enforcing the unjust law; the rule of men is in effect.  But they duck responsibility for this outrage by pointing to the law and saying, "We are a country of laws, not of men.  If I were to try to judge the law itself, I would be substituting my own prejudices and inclinations for the law, and that cannot stand."  But in point of fact, regardless of how they decide, they are acting upon their "prejudices and inclination," their personal sense of right.  It just happens that their sense of right is to obey the dictates of the legislative authority.  They are moral actors, but they pretend to be mere machines enacting the will of some outside agency.  It is the duty of a moral actor to identify and act according to justice, but according to the naive rule of law, the enforcers and the court ought not do this, instead behaving like robots.

Properly conceived, the rule of law stands for an ideal, and one which probably never perfectly manifests in the world.  There exist objective moral rules which all people should obey, including judges, enforcers, and even legislators.  Those who rule should rule according to justice, and when they fail to do so their rulings are not binding.  The rule of law is a state of affairs we should strive for, not one we should assume is ever in effect.

This realization splits political science into two branches.  On the one hand, what are the criteria of right rule; and on the other hand, how should rulers be cultivated in order that the rule of law prevail?  The answer to the second question is complicated, but there are a few things we can pick out fairly easily.  For one, mere election by a mass of people who don't know the candidates as people is a bad way of choosing rulers.  Instead of selecting rulers for their virtue, the democratic process weeds good people out and installs demagogues and deceivers.  An impersonal bureaucracy, rule by appointed officials, isn't much of an improvement, though it does depend on who does the appointing.

The best way of choosing rulers is probably some for of selection from a pool based on heredity.  The children of aristocratic families would be educated from a young age according to a curriculum designed to prepare them for grave moral responsibility.  Once they came of age, they would be given the opportunity to demonstrate their virtue and skill, with those doing so successfully moving on to greater responsibility and those failing passing off into other careers.  New men could enter the aristocracy by marriage or by selection for outstanding accomplishment.  This was the basic system in Europe for over a thousand years, giving credit to its durability, though it only reached its greatest degree of refinement in the 18th and 19th centuries.  After World War I it passed away completely, but there is definitely something to be said for finding a way to restore it, if that is possible.

Against Voting

After careful and lengthy introspection, I have isolated an aspect of my social thought to such a degree of clarity that I can express it with ease: I hate voting.  Not in the sense that I don’t like the process of voting, although it can be a pain.  Also not in the sense that I think voting in a political context is immoral.  Rather I hate the idea of settling an issue—any issue, large or small—by plebiscite.

Consider a presidential election.  What is theoretically at issue is the question of who should be President of the United States, a position with no small amount of power and responsibility.  Generally speaking, there are two candidates between whom voters choose, a Republican and a Democrat, with one wining and the other losing.  One Tuesday in November, everyone interested and eligible goes to the polls and usually by the end of the day it’s obvious who won, waiving the complications of the Electoral College.

Now suppose that one year the Republican wins and the Democrat loses.  Further suppose that this was an overwhelming victory with the outcome completely incontestable by the loser; let’s say the vote was 80% Republican to 20% Democrat.  This should be a case where the will of the people is clear and our supposedly democratic institutions reflect as such.  Now suppose that the 20% who voted Democrat had stayed home instead of voting; would the outcome have been significantly different?  No, of course not, and that’s because they lost.  Would this fact be different had the victory been less dramatic?  Again, no, and for exactly the same reason.  After a plebiscite, the losers cease to matter.

Consider now a smaller-scale vote, say, whether a state should allow gay marriage.  The vote is set for a particular date, and when that day arrives, everyone interested and eligible will vote yea or nay.  By the time of the vote, everyone will be expected to have made up their mind on the issue.  After the vote, however, the matter is supposed to be settled more-or-less permanently.  This means that whoever lost or hadn’t made up their mind yet is out of luck at influencing the outcome.  In this case, we can see more clearly why the losers don’t matter.  The vote is supposed to be the final word on the issue, expressing the general consensus.  But in fact, it does no such thing.  The vote a person casts expresses their views only, and there is no wiggle-room on their ballot. Rather than expressing consensus, a plebiscite splits a society into factions contesting with each other for control.

This scenario also sheds light on another problem of voting.  The options presented at the time of the vote are never the only possible choices, and almost certainly not the best choices.  For a complex issue, the best, most acceptable outcome is to be discovered in a conversation amongst the people the issue affects.  Take, for instance, the Constitutional Convention in 1787.  The people at the convention did not settle contentious issues by simply polling the delegations, but through lengthy discussions in which all the attendees weighed various arguments and positions.  What came out was a series of compromises that were at least acceptable to everyone present.  The fact that they voted on the various proposals and the final product was ultimately less significant than their general resolution to accept them or reject them as they case may have been.

Now let’s take things down to an even smaller scale.  Suppose a group of friends are trying to figure out where they should go for dinner.  Suppose also that one of the friends is a vegetarian.  How should they decide where to go?  The main issue involved here is how much sway the lone vegetarian should have over the decision of the group, and this depends on a variety of factors.  What are the available options?  How willing is the vegetarian to go without eating for a while longer?  How much weight do the other friends give to the vegetarian’s desires?  There is no simple answer to these questions, but simply deciding the issue by voting sweeps all of these concerns under the rug.  The difficulty is in finding the right balance so that the most satisfactory outcome is reached.  This may not always occur, and even in those cases where it does, it may require a strong personality to step forward and forge a consensus where there wasn’t one before.  There may have hard decisions made and compromises on many fronts.  Decision by poll simply ignores all of these complicating factors which form the core of the issue to be decided.

The upshot of these considerations is that whenever voting is “needed” it is destructive to the body that is making the decision, and whenever it is not needed, well, then it is superfluous.  This strikes at the heart of the idea of plebiscitary democracy, revealing it as a wretched form of government fostering division rather than community.  And this is true regardless of the size of the government in question, whether of a small group of people, of a company’s workers, or of an entire nation.