1) RULE OF LAW – THE SPECTRUM OF WHAT IS AND ISN’T

2) THE WEAKNESS IN THE RULE OF LAW: THE SUPREME COURT


 

I – RULE OF LAW

 
Among modern legal theorists, we will find that at least three common definitions of the rule of law.

1 – Rule of Law: a “Substantive” (Skeptical) or “thick” definition that must preserve certain rights;

2 – Rule by Law: a “Formalist“: (Optimistic) or “thin” definition, that must not preserve any such rights, and;

3 – Rule of Man: a “Functional” (Fictional) or “ultra-thin” definition that requires neither formal process nor substantial rights be respected, and allows government officials great leeway.

The ancient concept of rule OF law can be distinguished from rule BY law, in that, under the rule OF law, the law serves as a check against the abuse of power.

Under rule BY law, the law is a mere tool for a government, that oppresses the population a using legislation as justification for arbitrary commands – a means of violating rights.

Under Rule of Man, there are no checks on power to violate rights.

Rule of Law (By Rights)
1- Substantive (Skeptical) conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law. The substantive interpretation holds that the rule of law intrinsically must protect some or all individual rights.

Rule By Law (Rule by Legislation)
2 – Formalist (Optimistic) definitions of the rule of law do not make a judgment about the “justness” of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. The formalist interpretation holds that the rule of law has purely formal characteristics, meaning that the law must be publicly declared, with prospective application, and possess the characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of the law.

In addition, some theorists hold that democracy(majority) can circumvent both procedure and rights, or construct new rights (rather than privileges).

Why Formalism? Formalism allows laws the pretense of claiming rule of law when rights are not protected by including countries that do not necessarily have such laws protecting democracy or individual rights in the scope of the definition of “rule of law”.

The “formal” interpretation is more widespread than the “substantive” interpretation. Formalists hold that the law must be prospective, well-known, and have characteristics of generality, equality, and certainty. Other than that, the formal view contains no requirements as to the content of the law.

Rule of Man (By Arbitrary Discretion)
3 – The functional (Fictional) interpretation of the term “rule of law”, consistent with the traditional English meaning, contrasts the “rule of law” with the “rule of man.” According to the functional view, a society in which government officers have a great deal of discretion has a low degree of “rule of law”, whereas a society in which government officers have little discretion has a high degree of “rule of law”.

Closing (Summary)
In other words, there is only one form of rule of law under which no one can override natural rights (life, liberty, property, reciprocity, truth, and duty). Rule by legislation allows either the state, or the body politic to override those rules. And rule by man allows arbitrary discretion on the part of officials (members of the monopoly bureaucracy).

 

II – THE PROPER METHOD FOR THE SUPREME COURT’S DECISIONS

—” the constitutional doctrine of separation of powers mandates that judges anchor their analysis to the text as reasonably understood by the people of the time. If that leads to a violation of Reciprocity (Natural Law), then the proper avenue for redress is to amend the constitution so the text better and better codifies Reciprocity (Natural Law).”—

I assume, and the minority of strict jurists assume that the founding documents consist of The Declaration, The Constitution, and The Bill of Rights. And if clarity of original intent is required then we resort to The Federalist Papers, or notes on the proceeds of the debate. Once the bill of rights was ratified, then the founding documents were complete.

1 – The Declaration contains the appeal to Natural Law as justification for secession(independence).

2 – The Bill of Rights codifies the natural law as they enumerated those rights at the time.

3 – The Constitution describes the organization and processes of the government.

I tend to tell people to read them in that order: Declaration, Bill of Rights, and Constitution: from the reason for the secession: violation of natural law, to the articulation of the specific defenses of it, to the institutions that protect it yet still allow for the production of commons.

Unfortunately, first, reciprocity is not specifically stated as the first rule of natural law. Second, there is no requirement that the judiciary certify the constitutionality of legislation, and instead, all legislation ascends until falsified by the court. In other words, the market tests the legislation, and if conflicts arise the court corrects legislation.

This approach continues the no-prior-restraint of the Anglo Saxon (Germanic) law versus the prior-restraint of continental (french and roman) law. And this is yet another example of ‘markets in everything’.

Worse, without specifying Reciprocity, there is no means by which the initial rights can be limited, and therefore no means by which the court can limit the grant of rights rather than permissions and obligations.

Worse, there are no means by which the court can return the legislation to the legislature and demand correction. Nor are there means by which the court can suggest corrections or amendments to rectify the deficiency, and return to the legislature.

As such the court must, as the president must, choose ‘line item veto’ so to speak, or to veto the entire piece of legislation. So that is what the court does.

And the court members use different criteria for determining the power of the legislature:
1- Rule of Law (Substantive) in which the legislature and the people may only act in concert with natural law (reciprocity), or ;
2-Rule by Law (Formalist) in which the legislature can do what it wants;
3-Rule by Law (Majoritarian), in which the people can do whatever they want.

In other words, there are always at least THREE parties to a matter before the court: Plaintiff, Defendant, and Legislature. And the court cannot demand remedy of the legislature. And that is the oversight.

Curt Doolittle
The Propertarian Institute

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