THE RULE OF LAW

- or the Law of the Ruler?

Law is either the guardian or the predator of human freedom. It is a tool by which humans govern themselves, so just like any tool it can be abused. A hammer can be used to build a house, or knock a hole into someone's skull. A gun can either protect its wielder from harm, or to kill someone who just happened to tick the wielder off a little bit (or who owns something the wielder wants).

Law is "made" by humans who have persuaded others to elect or appoint them into positions of power. In this country, legislators aren't the only lawmakers. Judges make law by interpreting statutory or constitutional provisions and bringing their personal agendas to bear on the outcomes. Presidents make law via executive orders that slip under Congress' supervisory radar screen.

The laws we make reveal what kind of people we are - as a nation and as individuals.

What do our laws today reveal about us?

Because law is a tool, and because our freedom is supposed to be guarded by the rule of law (i.e., by the idea that even rulers or law"makers" are subject to the law) the history of law is inevitably intertwined with the history of freedom itself.

So, where does law come from, and what is its proper function?

This question implicates two clashing world views. One is that both law and human freedom come from a source that lies outside of the control of man - a higher source, whether you want to call that source "natural law" or "God's law." The other view is that law is strictly the creature of man, of man's intellect.

Those who hold the former view maintain that law's proper function is to restrain evil where evil is greatest, namely where human power over others tends to accumulate: in government. This is a view that is most fervently adhered to by those who are not in government.

The other camp believes that, since it is the creature of man, law can be manipulated by man to achieve his own ends in any which way he sees fit. Interestingly, this view is most often held by those who are in positions of power - whether in political or economic life.

The eventual outcome of this battle of opinions concerning the origin of law has a profound effect on human freedom.

Do lawyers squarely come down on one side or the other of this great debate, or are their individual judgments held in abeyance by the necessity of "making it" in the world?

Whatever "camp" lawyers will ultimately join will determine the future of human freedom in this country and in the world. That is a tremendous responsibility, and that responsibility may just extend a little bit further than only to their clients and their state bar grievance committees.

This section is a work in progress. It will mainly consist of a series of essays on the subject as well as links to relevant other sites - like this one, for example.

The nature of this site provides this author an opportunity to communicate with large numbers of both lawyer and non-lawyer Americans. At completion, anywhere from 2000 to 3000 attorneys will have a listing here, and an expected 50,000 non-lawyers per day will eventually visit the site. I am adding this section to gauge how many Americans on either side of the bar still care about the subject - and thereby as a predictor of this country's future.

In Germany, from where I immigrated in 1981, I had never been exposed to the thinking of America’s founders and the influence their thoughts played in shaping the country’s political and legal structure. After I came here, I soon developed a deep and lasting appreciation for the tradition of maximum individual freedom - under the rule of law - that underpins America's history, her founding, and the current character of her institutions.

Despite learning of this thinking and how much it pervades American history, during law school and beyond I noticed powerful countervailing trends that appear calculated to root out the very rule of law that underpins the still tremendous (but by now very tenuous) freedom Americans still enjoy today.

Over time, I convinced myself that the continued exercise of individual freedom in the world will stand or fall with the level of appreciation ordinary Americans, and especially American lawyers, have for their country’s founding principles. I will explain why I hold this belief later.

During the mid-1990s I began to notice, and ended up studying, a number of ways in which that freedom is being undermined by people in power. They seemed embroiled in a bid to control every aspect of ordinary people's daily lives - and thereby ultimately their thinking.

The framers of the Constitution recognized clearly that a people's ability to exercise their freedom depends on the degree to which their public officials respect the rule of law.

A very high percentage of state and federal legislators are lawyers. With minor exceptions not worth mentioning here, all state and federal judges are lawyers, and many members of the executive departments of state and federal governments are lawyers. All of these were at one time or another engaged in private practice, and many return to private practice after leaving their government posts.

Needless to say, lawyers are important people in America. Important to their clients, important to the smooth, fair, and efficient administration of public affairs, and important to freedom.

But lawyers are also people.

Before they became lawyers, they were just people. (Some of them forget that they are still just people even after becoming lawyers.)

People are therefore even more important in America. Somehow, the founders knew this. They wrote "We, the People" not "we, the lawyers" at the top of the Constitution.

A huge number of so-called 'ordinary' Americans are willing to lay down their lives for the freedom their country provides them.Really, there is nothing ordinary about these Americans. Unfortunately, people in power positions have become very adept at dividing ordinary Americans and turning them against each other. It's a form of life insurance for power seekers, but it is deadly for America and for freedom.

Some of those who will read this undoubtedly aspire to such ruler-status themselves. It is my hope that the discussion contained in this part of this site plants a tiny seed in their minds: a tiny seed of valuing freedom over power.

It is also my hope that those who would rather live their own lives than try to control others will recognize that not all who make it into positions of power have America's best interest at heart. In fact, it appears that very few of them really do.

The issue is therefore: how do we maintain the balance?

The rule of law is the only way to maintain that balance. Whenever the rule of law turns into the law of the ruler, freedom becomes roadkill on the highway of human history.

Whenever rulers rule without fear of the law, they become tyrants. Why would they fear the law? In their minds, it is their own creature.

How important is freedom to you as a lawyer? How important is freedom to you as a "regular" American?

To what extent are we all, individually, responsible for the continued existence of freedom?

That will be the issue to be examined in the coming articles.

Please subscribe to the RSS feed and check our "Rule of Blawg" daily for some challenging and thought-provoking updates to this topic.

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