A mosaic LAW by Frederick Dielman
There is a common misconception that in a democracy, 51% of the electorate can override the wishes of the other 49%, even ordering genocide by decree if they wanted to. This is not so; it may be true in the idealized dystopic world of some political scientists, but in reality, no democracy is a democracy for very long if it implements a tyranny of the majority.
There is however a worrying tendency amongst many people to assume that all branches of government must always reflect the views of the majority, no matter what, without regard for the ‘rule of law’.
(johnleemk at infernalramblings.com)
The ‘rule of law’ is what governments, judges and the legal profession have been hiding from us for centuries, while they and their cronies feed off of the conflict and human misery created by their illegal acts and divisive political philosophies. Mankind has long had this knowledge to create a better world for all and it is suppressed, for the profit of some. This suppression of truth is the greatest crime against humanity ever committed. It is an unthinkably evil crime. The unbelievable degree of evil and malice against mankind of this crime is the greatest defense of the perpetrators. These groups hypocritically claim to be acting in mankind’s interest. Unchecked, these crimes will drive mankind to extinction by war, civilizations or ecological collapse. Do not expect the legal profession to judge itself guilty in this or any other matter.
(The ‘Rule of Law’ by Bill Ross at strike-the-root.com)
In his book The Morality of Law, American legal scholar Lon Fuller identified eight elements of law which have been recognized as necessary for a society aspiring to institute the rule of law. Fuller stated the following:
1. Laws must exist and those laws should be obeyed by all, including government officials.
2. Laws must be published.
3. Laws must be prospective in nature so that the effect of the law may only take place after the law has been passed. For example, the court cannot convict a person of a crime committed before a criminal statute prohibiting the conduct was passed.
4. Laws should be written with reasonable clarity to avoid unfair enforcement.
5. Law must avoid contradictions.
6. Law must not command the impossible.
7. Law must stay constant through time to allow the formalization of rules; however, law also must allow for timely revision when the underlying social and political circumstances have changed.
8. Official action should be consistent with the declared rule.
Perhaps the most famous exposition of the concept of ‘rule of law’ was laid down by Albert Venn Dicey in his Law of the Constitution in 1895 :
“When we say that the supremacy or the ‘rule of law’ is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions. We mean, in the first place, that no man is punishable or can be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. …… Every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. (Appointed government officials and politicians, alike) … and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorize as is any private and unofficial person.” — Law of the Constitution (London: MacMillan, 9th ed., 1950), 194.
The ‘rule of law’ requires the government to exercise its power in accordance with well-established and clearly written rules, regulations, and legal principles. A distinction is sometimes drawn between power, will, and force, on the one hand, and law, on the other. When a government official acts pursuant to an express provision of a written law, he acts within the rule of law. But when a government official acts without the imprimatur of any law, he or she does so by the sheer force of personal will and power.
For similar reasons, the ‘rule of law’ is abridged when the government attempts to punish someone for violating a vague or poorly worded law. Ill-defined laws confer too much discretion upon government officials who are charged with the responsibility of prosecuting individuals for criminal wrongdoing. The more prosecutorial decisions are based on the personal discretion of a government official, the less they are based on law.
The Rule of Law involves:
1. The rights of individuals are determined by legal rules and not the arbitrary behavior of authorities.
2. There can be no punishment unless a court decides there has been a breach of law.
3. Everyone, regardless of your position in society, is subject to the law.
4. The critical feature to the ‘rule of law’ is that individual liberties depend on it. Its success depends on the role of trial by jury and the impartiality of judges. It also depends on Prerogative Orders.
There are three Prerogative Orders:
1. Certiorari calls a case up from an inferior court to a superior one to ensure justice is done.
2. Prohibition prevents an inferior court from hearing a case it does not have the power to listen to.
3. Mandamus orders an inferior court to carry out its duties.
The ‘rule of law,’ by its very words implies that it is intended to replace or at least control the power of rulers and all of the problems associated with arbitrary rulers and the conflict of competition for the position of ‘ruler.’ It also implies that it is not a mere replacement of rulers by another ruler class called ‘Judge,’ since this is just a name change and solves no problems. If it means that the law is supreme and Judges are mere interpreters, this is just a shifting of arbitrary rule to those who make the laws. Even if the lawmakers are elected representatives of the people, this still does not solve the problem of the majority enslaving the productive, oppressing minorities and collapsing civilization. Therefore, the rule of law cannot be a mere shifting of power to any one group, including the majority, since this solves none of mankind’s organizational problems. The ‘rule of law’ must be something different.
The ‘rule of law’ cannot leave any particular group in charge, since this group would ultimately enslave all others, as proven by historical experience. Since control of the law cannot be entrusted to some, it must be entrusted to all. Therefore, the ‘rule of law’ must be a simple philosophical statement of what are justice and not justice easily understood and agreed to by all men. This allows all to see that the law is fair and ensure that justice is done, to guard against injustice. If all have fairness and justice, no honest man will desire conflict. The ‘rule of law’ must also be the glue that ties all of mankind together in common interest, for mutual survival. Since this is the purpose of ‘the rule of law,’ it must also be a moral statement that mankind’s overall survival is more important than some natural rights of inherently free men. Given that man’s second highest goal is freedom, the ‘rule of law’ must limit freedom as little as possible, sufficient only to reduce conflict. If this were not the case, conflict would occur in pursuit of freedom.
Under the ‘rule of law,’ honest men are in charge, with a simple and precise definition of what they should be doing. Democracy will be prevented from discriminating on any basis, ending divide and conquer politics, forcing voters to consider common interest rather than advantage over others.
The answer to the implied judicial question of ‘I am big, I have all the power and can do whatever I please, you cannot prove me wrong and what can you do about it?’ is, You have just been proven wrong. You are big and will thus fall very hard and take many with you. If you are not forced to fall, you will take all of us with you when your offenses against natural law which is also man’s law collapses the civilization on which you prey.
The entire legal profession is profoundly wrong and an enemy of mankind. Who judges the judges? We do.
(The ‘Rule of Law’ by Bill Ross at strike-the-root.com)
At the end of the day, there are only two options for how men can govern themselves – by laws, or by the will of other men. The ‘rule of law’ represents objective, dispassionate standards that are made known to the public and that are applied and enforced equally to all citizens. The rule of men represents subjective, fleeting standards that are never fully known by any and that are applied purely to satisfy the wishes of a small, concentrated group in power. This small group may indeed be very virtuous and well-meaning, but good intentions are in themselves insufficient. The rule of men will always be ripe for exploitation, whether by the greedy, the evil, or the foolish.
Despite its ancient history, the ‘rule of law’ is not celebrated in all quarters. The English philosopher Jeremy Bentham described the rule of law as “nonsense on stilts.” The twentieth century has seen its share of political leaders who have oppressed disfavored persons or groups without warning or reason, governing as if no such thing as the ‘rule of law’ existed. For many people around the world, the ‘rule of law’ is essential to freedom.
The ‘rule of law’ and natural justice require that everyone be subject to the same law, that the law should do justice by not punishing those whose actions are innocent or justified. There must be certainty in the law, so that all can regulate their affairs accordingly. There must be access to independent tribunals and a system of appeals, and a means of preventing arbitrary law-making particularly by officials and inferior courts.
The English Legal System attempts to meet these requirements and is largely successful. There are however, concerns regarding access to justice and the implications of Access to Justice Act 1999. The Community legal Advice ensures legal advice and representation, but legal aid does not cover all types of case, and people with even modest incomes may not be eligible. Darling J is supposed to have said, “The law, like the tavern, is open to all”, but it may be more correct to say, as did Lord Justice Matthew almost a century ago, “In England justice is open to all, like the Ritz”.
In a democracy, the laws created by the institutions are to be enforced and followed, regardless of whether the majority benefits or is harmed by them. In the West, it is not possible for white policemen to gun down suspicious-looking black men on the excuse that these people are probably criminals, or that this coldblooded murder benefits the majority white population.
Similarly, when the courts interpret the law, they are supposed to have only one thing in mind — what the law says. To allow the majority to impose its will on the minority by coercing the courts into following a false interpretation of the law is to throw the door open to anarchy.
The institutions of a country do not exist to provide a semblance of organization to the messy process of enforcing a tyranny of the majority. A civilized country is ruled by what the statute books have to say, not by the whims and fancies of the majority.
In some “democracies”, the branches of government which are directly or indirectly elected by the citizens seem to think they can lord it over the unelected branch, which is usually the judiciary. But all that does is raise the question, what is supreme in a civilized nation? Is it the will of the majority, or the will of the constitution? In some idealized dystopic “democracy”, the will of the majority may be supreme, but in the real world, any self-respecting civilized society knows that it is the law which takes priority.
(johnleemk at infernalramblings.com)