The phrase “Rule of Law” is our global solution. Not Democracy (tyranny of the majority) or Peace (at any price - like the loss of freedoms). But the Rule of Law. And it must be clearly defined!
If we are to engineer an effective government system capable of sustainably maximizing human freedom, security, and prosperity globally for the next thousand generations it must apply globally. Not in just a few aligned nations. An injustice anywhere can threaten people everywhere. The Russia/Ukraine dilemma is evidence of this. A repressed freedom anywhere (often during war) can lead to repressing freedoms everywhere. A democracy anywhere can be used to dominate others anywhere.
What follows is an AI response to the question “What elements are needed for the Rule of Law to work most effectively? 12-16-22:
The rule of law is a principle that holds that all people, including those in positions of power and authority, are subject to the law and must follow it. In order for the rule of law to work most effectively, several key elements are typically necessary. These elements include:
Clarity and consistency of the law: The law should be clear, concise, and consistent, and it should be applied in a predictable and unbiased manner.
Independence of the judiciary: The judiciary should be independent from political influence and should be able to impartially interpret and apply the law.
Access to justice: All individuals should have the right to seek legal remedies and have their cases heard by an impartial tribunal.
Equal treatment under the law: The law should be applied equally to all people, regardless of their status or position.
Transparency and accountability: The decision-making processes of the government and legal system should be transparent and accountable to the public.
Respect for human rights: The rule of law should be used to protect and promote fundamental human rights.
By upholding these principles, the rule of law can help to ensure that individuals are treated fairly and that the government and other authorities are held accountable for their actions.
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Our resistance to abandoning ‘democracy’ as our highest aspiration will not end well. Or using the word ‘terrorism’ in describing any human act. These will inevitably lead to the loss of all freedoms and security. And the first freedom to go will be privacy. Privacy enables corruption and accumulation/control of resources (financial, material, and information)that can be used for any intended violence on any level, anywhere world, by anyone.
A comment by Senator Dick Durban in a C-Span hearing on Jan 11, 2022, highlighted the need for this definition. We must make a distinction between what most people call ‘democracy’ and the phrase “the rule of law”. It was a hearing on Domestic Terrorism 10 years after Senator Durban’s first hearing on the issue in 2012. This hearing was the first Judiciary hearing of this year. In those ten years, Domestic Terrorism has only gotten worse.
1-11-22: C-Span Dick Durban, said “This committee should be unequivocal. No more violence! Time to take a stand.” “The only way to prevent...is joining together to defend our constitution and the Rule of Law.”
“The world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.” Dwight D. Eisenhower.
Both ‘pre’ and ‘post’ Trump impeachment debate was peppered with the phrase “Rule of Law” and the need to protect it and our ‘democracy’. We all grasp the basic value of preserving civility and the fundamental result will either be “It’s either the ‘rule of law’ or the ‘law of the jungle’.”
But what does ‘rule of law’ really mean? And how is it related to the democracy we hope to preserve?
The two important questions are: Can we precisely define the ‘Rule of Law’ for functional global approval? And, if we can, then will we universally adopt the definition with the intention of sustaining our freedoms, security, and eventually our very existence? Are there any other options except to prepare for the accelerating deterioration of individual, national, and global security?
Supreme Court Justice Anthony Kennedy once offered what may be the best working definition of this often-used phrase “rule of law”. During a C-Span interview with an international audience in the late 1990s, he was asked ‘What makes the “rule of law” most effective?’ He said he believed ‘it required “three essential” elements to work best’. He might now say sustainably.
“First” the “laws need to be made and enforced by a democratic process”. People want to participate in the rules they live under. But, he warned that this was “not enough!”
“Second”, he said “the laws” have to be “applied equally to everyone”. The principle of justice is universal (as the Golden Rule). But even that isn’t enough if everyone is mistreated equally.
Last he said, “the laws must be protective of a certain set of inalienable rights”. Rights that we have just because we’re born. Not because of any characteristics we are born with (skin color, sex…) or into (ethnic group, economic group, nationality, religion…).
Think of the ‘Rule of Law’ as using concrete to engineer a solid government. Concrete is made up of three basic components: water, aggregate (rock, sand, or gravel), and Portland cement.
Portland cement is like justice. It is the binding agent. Water is the ‘protection of inalienable human rights. And democracy is the various aggregates that can be strongly bound together. You can try to leave one of these elements out…but don’t expect a reliably solid and sustainable outcome.
"Politics must be the battle of the principles... the principle of liberty against the principle of force." -- Auberon Herbert (1838-1906) English writer, theorist, philosopher, 19th-century individualist, and member of the Parliament of the U.K.
"It is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do." -- Edmund Burke (1729-1797) Irish-born British statesman, parliamentary orator, and political thinker Source: Second Speech on Conciliation, 1775
“The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of law, where there is no law, there is no freedom.” John Locke (additional reading: Locke, The Second Treatise of Civil Government [1690]
"Our legislators are not sufficiently apprized of the rightful limits of their power; that their true office is to declare and enforce only our natural rights and duties, and to take none of them from us. No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him; every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him; and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third. When the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded, that on entering into society we give up any natural right." -- Thomas Jefferson. Source: Letter to Francis W. Gilmer (27 June 1816); The Writings of Thomas Jefferson edited by Ford, vol. 10, p. 32.
"I began to understand the important divisions in the world are not on the basis of race or nationality or country or where you live. They are really between people who believe in a rule of law as a way of deciding significant issues and those who do not believe in a rule of law — who believe in force." Supreme Court Justice Breyer, NPR Interview regarding his book "The Court and The World: American Law and The New Global Realities."
"The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberative and concerted use of it to set in motion evils which leave no home in the world untouched."Justice Robert Jackson - Nuremberg address
The philosophical framework of the capitalist society requires a system of laws—a government—to assure that the life and property of individuals are safeguarded. The role of government in a capitalist society is to establish and execute laws designed to keep the peace. As Mill observed, attempts by any to deprive others of their freedom must be prevented, and the force of law is essential to this end. Government in the capitalist society is symbolized by the blindfolded goddess of justice. The rule of law equally protecting life and property is fundamental to the development of a capitalist society. – Robert G. Anderson, The Freeman [October 1979]
“Law” as Dr. Paul Craig Roberts states “is supposed to protect the innocent from the power of government. Law was intended to be a “shield of the people not a weapon in the hands of the State.” “When you lose the law, you lose your civil liberties.” Dr. Paul Craig Roberts was Assistant Secretary of the Treasury for Economic Policy and associate editor of the Wall Street Journal. He was a columnist for Business Week, Scripps Howard News Service, and Creators Syndicate. He has had many university appointments. His internet columns have attracted a worldwide following. Roberts' latest books are The Failure of Laissez Faire Capitalism and Economic Dissolution of the West and How America Was Lost
"For man, when perfected, is the best of animals, but, when separated from law and justice, he is the worst of all; since armed injustice is the more dangerous, and he is equipped at birth with the arms of intelligence and with moral qualities which he may use for the worst ends."
-- Aristotle (384-322 BC) Greek philosopher. Source: Politics, 300 B.C.
We now have before us the opportunity to forge for ourselves and for future generations a new world order, a world where the rule of law, not the law of the jungle, governs the conduct of nations. George H. W. Bush, Presidential State of the Nation address, 1979\
Our ideal is a world community of States which are based on the rule of law and which subordinates their foreign policy activities to law. Mikhael Gorbachev Address to UN, 7 December 1988
Bad laws? "One who breaks an unjust law that conscience tells him is unjust ... is in reality expressing the highest respect for law ... We will not obey your evil laws."
-- Rev. Dr. Martin Luther King, Jr. (1929-1968), US civil rights leader
"If citizens cannot trust that laws will be enforced in an evenhanded and honest fashion, they cannot be said to live under the rule of law. Instead, they live under the rule of men corrupted by the law." - Dale Carpenter, Flagrant Conduct: The Story of Lawrence v. Texas
"Our whole political system rests on the distinction between constitutional and other laws. The former are the solemn principles laid down by the people in its ultimate sovereignty; the latter are regulations made by its representatives within the limits of their authority, and the courts can hold unauthorized and void any act which exceeds those limits. The courts can do this because they are maintaining against the legislature the fundamental principles which the people themselves have determined to support, and they can do it only so long as the people feel that the constitution is something more sacred and enduring than ordinary laws, something that derives its force from a higher authority." -- Walter F. Dodd. (1880-1960) Author, professor of political science
Source: The Revision and Amendment of State Constitutions, P. 253 (1910).
"Today is a sad day for the rule of law and for those who believe that the courts should protect American citizens from torture by their own government," - "By dismissing this lawsuit, the appeals court handed the government a blank check to commit any abuse in the name of national security, even the brutal torture of a U.S. citizen on U.S. soil. " Ben Wizner - ACLU National Security Project Litigation Director 01/23/2012
The United States was created by men using a set of principles that they had gleaned from studying other nations, governments, peoples, and human behavior. It started with a series of writings we now know as the Federalist Papers which led to a constitutional convention. But it was really the continued grievances, governing problems, and the realization that the existing confederation of states that they already had and tried earnestly to live by -- simply did not work.
Those wise and brave founders gave us:
1. A “Declaration of Independence” articulating the general and specific reasoning (Fundamental principle) for seeking profound change.
2. A “Constitution” offering a structure and a process for achieving peaceful change.
3. And, a “Bill of Rights” devoted solely to protecting a few individual freedoms of ‘we the people’ from abusive powers.
Ultimately, they gave us an experimental process for self-rule. A framework for electing representatives for working out differences between people, corporations, and states by relying solely on the use of laws they create and enforce. They have not always protected basic individual rights. And to the degree they have failed is the degree to which this experimental system of government will continue to fail. The founding father’s intent was to collectively create a nation that would abandon the law of force as the primary governing tool prior to becoming a federation. They abandoned the whimsical forced will of Kings, dictators, clergy, or bandits but failed to ensure ‘liberty and justice for all’. That ended up in a catastrophic American civil war, with scars that remain today. Our failure to abide by this ‘rule of law’ principle on the global level will inevitably end in even greater catastrophic consequences.
The US had a fragile beginning — with no guarantee of success. It has the means to modify it and it urgently needed to fulfill its seven original intentions and be worthy of the pledge to protect and defend.
To form a more perfect Union,
establish Justice
insure domestic Tranquility
provide for the common defence,
promote the general Welfare, and
secure the Blessings of Liberty to ourselves
and our Posterity,
Our Constitution remains problematic today because it is based on interpretation and trust. But it offers no justice and no fundamental principles offered in the Declaration of Independence. The Constitution’s interpretation by those in power needs the trust of citizens and those periodically elected. The public is losing its trust. From its beginning, there have been strong disagreements in interpretation. But lately, many citizens have lost trust in it and those who are elected and pass laws. Yet, nearly all Americans strongly believe in and favor the seven preamble ideals. Many believe (and I’m one of them) that the Second Amendment in our constitution was an acknowledgment that powerful leaders couldn’t always be trusted. Our nation once veered into widespread violence. It may not be our last. Unless our collapse is forced by some catastrophic event that sparks a cascade of systemic infrastructure failures. Such a fuse could be lit by a nuclear war, bio-terrorist event, an asteroid, AI, or an Electro Magnetic Pulse from a solar flare frying our nation’s electrical grids.
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Nuremberg war crimes prosecutor Benjamin Ferencz believes that “[E]very orderly society is based on three foundations: 1. Laws to define minimum standards of behavior; 2. Courts to serve as a forum for the peaceful settlement of disputes and to determine if the agreed laws have been violated; 3. A system of effective law enforcement.
The U.S. Commission on National Security/21st Century (USCNS/21), also known as the Hart-Rudman Commission, was chartered toward the end of President Clinton’s Administration in 1998 to provide a comprehensive review of US national security requirements in the 21st century. The commission was tasked "to analyze the emerging international security environment; to develop a US national security strategy appropriate to that environment; and to assess the various security institutions for their current relevance to the effective and efficient implementation of that strategy, and to recommend adjustments as necessary". Released 31 January 2001, USCNS/21 was the most exhaustive review of US national security strategy since the National Security Act of 1947. It was released in three distinct phases. The first phase, New World Coming: American Security in the 21st Century tried to anticipate the emerging security environment within the first 25 years of the 21st century. The second phase, Seeking a National Strategy: A Concert for Preserving Security and Promoting Freedom proposed a new US national security strategy based on the anticipated threats and conditions outlined in the first report. The third phase, Roadmap for National Security: Imperative for Change recommended changes to the US government's structure, legislation, and policy to reflect a new national security strategy based on the other report’s findings.
In the second report Seeking a National Strategy: A Concert for Preserving Security and Promoting Freedom released April 15, 2000, in its “strategic considerations” the Commission suggested a number of strategic considerations including “America must never forget that it stands for certain principles, most importantly freedom under the rule of law.”
It gave specific warnings regarding a terrorist event killing large numbers of Americans on US soil as our greatest threat. Second, was the lack of education in our schools enabling our defense needs, engineers generating wealth to afford new weapon systems and vital US infrastructure, or organize and effectively manage our own government systems. With three other threat categories after these two.
The commission’s findings and recommendations were ignored. After the attacks on 9-11 months later a few were looked at again. But education never became a priority.
In 2022 US student debt was approaching two trillion dollars while unconstitutional laws still prevent those in debt from filing for bankruptcy or being forgiven for their debt.
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Supreme Court Justice Steven Brier: (Author, “Making our Democracy Work”) Speaking at the Bookings Institute. 11-28-12
http://www.c-span.org/Events/Justice-Breyer-Discusses-Constitutionalism-in-China/10737436108-1/
The “rule of law” is only effective IF the people accept it as a means to solve problems. When a judge makes a ruling that the majority of people disagrees with, that just seems wrong, but the people accept it without resorting to guns and violence. Informed public opinion does matter. But an Independent judiciary (for life, without pay cuts) is the key. The independent media and the public can certainly criticize judgments…but hopefully will damper future decisions if some earlier decision are so poorly decided.
Ten…
1. If it isn’t public…its not a law!
2.
3. Every legal procedure will be conducted in public. Not the deliberations! X party communications! All the basis, proof, evidence have to be public…not the deliberations. Nothing goes into the decision maker’s mind except
4.
5. Habeas Corpus: Don’t affect a person’s liberty without a law.
6. A public defender corps. A professional interest in keeping the process fair. They rarely succeed.
7..
It’s not a Chinese problem or American problem. It’s a human problem. Where laws and courts are a means of solving problems. With small groups it’s easier done under a tree. But with larger groups you need a system of rules and laws. And people have to agree with them. It works better if people have a say in the rules. But people are ganging up on me! Then set some basic rights…to make sure you are not unfairly picked on. (Not a US notion. The Bible says justice you shall pursue! A universal value. Having a say may also be one. Not being picked on is one… We need solutions when tens of millions of people are living together.
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Nixon’s name is usually associated with Watergate, but Nixon favored international treaties and a way to assure that they be enforced. This still has merit today. In a letter to a constituent in June, l959, in reply to a letter to him agreeing with his proposals made in a speech to the American Academy of Political Science he wrote: "As you know, proposals designed to substitute the rule of law for the rule of force as a means of settling disputes between nations are usually subjected to the criticism that they are too idealistic and impractical. We often hear it said that "everybody agrees this would be a good idea but it just won't work. This is why I thought the most constructive approach I might follow in this speech was to advance two practical attainable objectives--the modification of the Connally Amendment and the proposal that future treaties include a clause providing for the submission of disputes with regard to the interpretation of those treaties to the International Court. I, of course, realize that these proposals do not provide solutions for a number of other areas of potential conflicts between nations. But it seems to me that if we could take even these two steps forward in recognizing the supremacy of the rule of law between nations, the way would be open for further progress of the rule of law between nations, progress toward realization of this great goal in the future. …You can be sure that I shall devote every effort toward implementing by action the proposals I have made." Nixon was Vice President in June '59.
Connelly Amendment. http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1743&context=dlj
The central idea of the law in the nineteenth century was the importance and, derivatively, the inviolability of the free individual will. But the law has come increasingly to involve itself not only in protecting human life but in assuring to the individual a productive and satisfying life. – Donald M. Dozer
"Laws provide against injury from others; but not from ourselves." -- Thomas Jefferson
(1743-1826), US Founding Father, drafted the Declaration of Independence, 3rd US President
