What should be the characteristics of laws in a free society?
Let’s think about baseball rules (laws) as a means to approach this question. Some players, through no fault of their own, hit fewer home runs than others. In order to create baseball justice, how about a rule requiring pitchers to throw easier pitches to poorer home-run hitters, or simply rule what would be a double for anyone else a home run?
Some pitchers aren’t as good as others. How about allowing those pitchers to stand closer to the batter? Better yet, we could rule their first pitch a strike, regardless whether it is or not. In the interest of baseball justice, we might make special rules for some players and not others. That might level the playing field between old players and young players, black players and white players, and fast runners and slow runners.
You say: “Williams, you can’t be serious! Can you imagine all the chaos that would ensue: players lobbying umpires, umpires deciding who gets what favor, lawsuits and not to mention fighting?”
You’re absolutely right. The reason baseball games end peaceably – and players and team owners are satisfied with the process, whether they win or lose – is that baseball rules (law) are known in advance; they are applicable to all players; they’re fixed; and umpires don’t make up rules as they go along. In other words, baseball rules meet the test of “abstractness.” They envision no particular game outcome in terms of winners and losers. Baseball rules (laws) simply create a framework in which the game is played.
Laws or rules that govern a free society should have similar features. There should be “rule of law.” Rule of law means that laws are certain and known in advance. Laws envision no particular outcome, except that of allowing people to peaceably pursue their own objectives. Finally, and most important, laws are equally applied to everyone, including government officials.
Sir Henry Maine, probably the greatest legal historian, said, “The greatest movement of progressive societies has hitherto been a movement from status to contract.” In non-progressive societies, rule of law is absent. Laws are not general. They’re applied according to a person’s status or group membership. There’s rule not by legis, the Latin word for law, but by privileges, the Latin term for private law.
Let’s look at our country and ask whether we live under rule of law. Just about every law that Congress enacts violates all of the requirements for rule of law. How do we determine violations of rule of law? It’s easy.
See if the law applies to particular Americans as opposed to all Americans. See if the law exempts public officials from its application. See if the law is known in advance. See if the law takes action against a person who has taken no aggressive action against another.
If you conduct such a test, you will conclude that it is virtually impossible to find a single act of Congress that adheres to the principles of the rule of law. That’s the very reason lobbyists descend upon Washington and cough up the big campaign bucks. They want Congress to use its law-making power to grant them special privileges. But every indication I see, privilege granting is precisely what most Americans want, though they might disagree on who gets what privilege.
Most Americans have no inkling of what rule of law means. We think it means obedience to whatever laws Congress enacts and the president signs. That’s a tragedy.