Rule “of” law or rule “by” law? That’s the current congressional-presidential divide in a nutshell.
The lawsuit approved by Republicans in the House of Representatives, contesting the way President Obama has discharged his constitutional obligation to “faithfully execute” the laws of the United States, is a grave matter, not just another round in our spiteful, tit-for-tat politics.
The dispute, which will end in the Supreme Court, exposes a dangerous fault line between right and left, a fundamental division in views about justice, and another way in which our culture war has poisoned how we run our republic.
On the one hand, the right thinks in traditional Anglo-American Whig terms about the “rule of law” — the vision of Cicero, the Puritans of the English Revolution, John Locke, and the framers of our Constitution.
On the other hand, the left thinks in terms of “rule by law” — an autocratic jurisprudence that arose in the modern age in the thinking of Rousseau about the centrality of the state and the administrative apparatus of Napoleon. This ideal expresses the unilateralism of command in the public form of written regulations.
The House suit challenges the legitimacy of Obama’s unilateral executive actions with respect to health care legislation Congress enacted. The president chose not to execute some provisions of the law, violating, the House alleges, the constitutional checks and balances that uphold the rule-of-law ideal.
The rule of law demands that we honor rules by humbling ourselves and seeking to understand what the rules require of us. The rule-of-law ideal sees law as abstract, above the power of any person to manipulate for selfish or partisan reasons. The law’s neutral and objective quality comes about because it is divorced from our passions and our interests. Law is something we — especially judges — must reach for. We are to accommodate ourselves to the law, not the law to us.
Because our human nature is flawed, justice demands that we supplement our shortcomings through engagement with others. Rule-of-law systems compel our subservience through checks and balances. No one can be both judge and jury of social or political truth. Checks and balances offset egomania, social pathologies, and the tyranny of one or many.
It is a system that allows for liberty of conscience and freedom of opinion while making possible sufficient order to further a common good.
The movement away from the rule of law in our law schools and among intellectuals began with skepticism. Arguments were made that law is not an abstraction but a work of persons. As such, it inevitably comes to be contaminated with their biases, interests and politics. Legal academics came to the conclusion that there can be no rule of law in practice.
A good example of this change in legal thinking was Justice Sonia Sotomayor’s’s much-discussed remark about the superiority in reaching just outcomes of a “wise Latina judge.” By this self-focused standard, what might be good law for a “wise Latina” would not necessarily be good law for a “wise Latino” or for a wise African-American, or Chinese, or Anglo male.
Good law for Catholics would not work for Muslims, and so on and on.
At bottom, the new faith in rule by law is an argument from power that has taken much encouragement from the testimonies of Nietzsche and Freud. Nietzsche asserted that all of our social, cultural and political life is nothing more than the will to power. Freud argued that human psychology is so messed up that people can’t be honest and fair on their own.
Marx had previously made the point that actual systems of law were only devices to extend the privileges of the ruling classes.
These perspectives divorced the law from idealism and abstraction and turned it into an extension of politics. Law as jurisprudence disappeared, while law as the imposition of arbitrary power through written rules of conduct came into favor as more realistic.
Rule by law came to the United States from Germany in the late 19th century through progressive reform that sought to replace politicians with neutral bureaucratic experts — high-minded guardians of right and wrong — as administrative managers of our economy and society.
Rule by law, however, was also picked up by both Lenin and Hitler when they sought to coerce their societies.
In a savage use of rule by law, Hitler started the extermination of German Jews using the forms of legality. The Nuremberg Laws set up racial classifications of citizens and “occupants,” whereby those with too much Jewish blood could not be citizens. Then, more and more restrictions were lawfully placed on “occupants” until, in effect, they had no legal claim to life.
The Opinion section is produced by the Editorial Department to foster discussion about key issues. The Editorial Board represents the institutional voice of the Star Tribune and operates independently of the newsroom.