Dec 2, 2020
The Rule of Law — Letter #3
Dear Francisco,
Thank you for your reply to my letter. I’m glad you enjoyed this new theme!
I’ve got to say that you’ve made some interesting points in your letter, so let me start with the good distinction you presented between Rule of Power and Rule of Law:
Here lies the potential philosophical paradox about Rule of Law and Rule of Power, in the sense that if you fail to limit the power of those creating the laws, you may end up with Rule of Power disguised as Rule of Law.
I totally agree with it, unfortunately, I think this failure is way too certain…
In every society, there’s a group of people in charge of writing down the rules: the Legislators.
They are typically politicians who have received some sort of authorization to use their legislative power. Often, this authorization exists in the form of an election or nomination. I don’t exactly want to focus on the shape of it, so let’s move forward (potential new theme here!).
This group of people exist because, in a society, it’s very difficult to reach consensus. Specially in the matters of law. There are some obvious exceptions like brutal crimes and atrocities, but once society is under the Rule of Law, things get much more complicated: there’s always a rule for every little thing. From the places where you can cross a street, to the nutrition labels, from a doctor’s practice to swimming in the river, everything has a rule.
A written rule.
And…
A written consequence to its infringement.
So, if Rules needed a society-wide consensus, how could you reach it? Besides the cheer number of fields of expertise, you would also need arguments, time, thinking process which… Society doesn’t have (people have more important things to do)!
So, it basically outsourced writing the rules to this group of people.
Now, let’s see the underlying problems…
1 — Who guards the guards?
This sort of problem shows up in a wide number of fields. Doctors take care of people, but who takes care of Doctors? Guards guard people, but who guards guards?
If a society has a written rule for everything, who writes the rules Legislators have to abide by?
Other legislators, a supervisory board judges, etc. are all options, but we’re focusing on the root of the problem here: no matter the practical aspects of it, we’ve got a problem because a group of people with vast power in society are the ones who write their own rules.
2 — Does everyone knows everything?
This is another typical problem. You’re an expert in your craft. Whatever you do. Footballers play football, Managers manage their things, Doctors apply their medical expertise and… Legislators are awesome at writing down laws.
But are they good enough to write the laws of football? Or the laws of medicine?
3 — The previous points are two sides of the same coin
If we don’t believe that Legislators get the right advice from football or medicine experts, does this mean that groups of experts of football or medicine will write their… Own laws?
4 — There’s no Rule of Law, there’s just Rule of Power
If we believe that the first 3 points are not actual problems, because there are ways to deal with the failures we mentioned, would the road be clear to a true Rule of Law?
And here’s the real issue of this theme:
A society living under the Rule of Law is a society where everyone is a fanatic believer. Not in God, but in the existence of something called… Justice.
In other words, why have we built our society on top of somewhat fictional foundations?
Why did we do it, instead of building a society under the Rule of Economy, Rule of Engineering, Rule of Physics, Rule of Philosophy?
Looking forward to hearing back from you!
All the best,
Ricardo
