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Rule of Law

When Chinese dissidents talk about democracy and rule of law, American media immediately start the echo chamber in criticizing China and provide the stage for whomever in the spotlight. It irks me to no end this fetish on rule of law is not based on reality but more on fantasy and rarely examined in depth. Wikipedia defines it as:

“The rule of law (also known as nomocracy) is the legal principle that law should govern a nation, and not individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government officials.[2] The phrase can be traced back to the 16th century, and it was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote “Law should govern”.[3] Rule of law implies that every citizen is subject to the law, including law makers themselves. It stands in contrast to the idea that the ruler is above the law, for example by divine right.

Despite wide use by politicians, judges and academics, the rule of law has been described as “an exceedingly elusive notion”[4] giving rise to a “rampant divergence of understandings … everyone is for it but have contrasting convictions about what it is.”[5]’

As the dissidents use U.S. as the model for rule of law, I like to examine here whether the reality is anywhere near the ideal. As anyone familiar with American history knows that the rule of law didn’t apply to Native-Americans or slaves, considering hundreds of treaties signed and torn up as soon as gold, oil, or the land was needed, and slavery was written into the U.S. Constitution I will not rehash the past history, but limiting the discussion to more recent history. Obviously, the interment of Japanese-Americans, the Chinese Exclusion Act, the immigration policy of treating European favorably over Chinese until 1960s violated the rule of law. The differing sentences of cocaine and crack, differing death penalties for black and white for similar crime, and the prison population of different racial groups violate the rule of law. Consider that Supreme Court is the final arbiter of the meaning of law, those 9 men and women essentially set up the rule of man over rule of law with ruling Bush over Gore, a one time ruling, can’t be used as precedent, by not counting all the votes in Florida, twisting the meaning of equality. By appointing George Bush, we now have Roberts and Alito setting up the Citizen United decision with money as speech, corporation as person, all by 5-4 decisions. I consider all those as poisoned fruits of rule of man over rule of law.

Look at the racket in Chinatown, all those false political asylum seekers from 1 child policy. And more recently with all those Honduran children in camps after fleeing criminal gangs in fear of their lives ready to be deported. How can that be the rule of law, although blind Chen Guangcheng may be harassed and under house arrest, but he’s certainly not in as much danger of his life as those children. He got his fellowship at NYU, but I understand he’s not too happy that he’s not treated as royalty, and NYU is now happy  that’s only 1 year and he’s gone. Consider the Federal Reserve’s QE, saving the Wall Street bankers at the expense of senior’s retirement savings. Such is the rule of law in U.S.A..

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  1. Zack
    August 13th, 2014 at 07:19 | #1

    rule of law doesn’t stop the NSA or the USG from violating the spirit of the US constitution, or silencing individuals with National Security Letters (Lavamail, anyone?).
    No, what we do get is the stupidity of spokespeople from the NSA or the CIA trying to convince the people that black is white and that a lie is not a lie

  2. ersim
    August 13th, 2014 at 17:31 | #2

    The U.S. concept of “rule of law”, like the other 2 concepts, “democracy” and “freedom”, is about who’s able to pay and afford it. Only the highest bidder benefits from it. “Capitalist democracy” at it’s best.

  3. August 13th, 2014 at 23:25 | #3

    I applaud N.M. Cheung for the courage to write this post. But I will play devil’s advocate a little here. Someone who believes in the rule of law can readily argue that rule of law does not necessarily mean good laws per se. Whether laws are good – either “moral” or “just” – depends on politics of the time. Rule of law does not solve that problem, that would be democracy … but that’s a matter for another day.

    Rule of law is, as you mentioned, about ensuring that society should be governed by rules – hopefully principled rules – but not men. All men – however powerful or wealthy – are subject to the same rules.

    I have been intending to write a post on this, and I will make this short. My problem with “rule of law” is the notion that it is a better principle than “rule of men.” I don’t disagree that “rule of men” can be quite draconian, when the men who rule are unprincipled … but to be honest, so can “rule of law,” when the laws are unprincipled. Laws can be bad … but it’s more than that…

    “Rule of law” – Western style – has been a model for the world, legitimately, because Western society has been enjoying a gilded age the last few hundred years. Its society is wealthy, and its people are well fed and well educated. The professionals that run the “courts” take pride in their profession and their role in society.

    But “rule of law” can be just as corrupt as “rule by men.” For laws to adapt to man’s and society’s varying needs, for it adapt to time, it must contains sufficiently many rules and principles (i.e. doctrines) that practitioners (judges/lawyers) can draw. Depending on the circumstances and times, they can draw whatever result equity demands based on emphasizing one set of principles over others. This is a core part of what makes “rule of law” work, but it is also the part that makes the “rule of law” no different than “rule of men.”

    This happens actually throughout all levels of “law.” In evidence, trier of fact can do the same thing with facts, emphasizing some facts and de-emphasizing facts to get the “right” result – or the “wrong” one. The art of drafting law can employ similar principles. Laws might refer to noble both principles of “freedom” and “equality” but depending on how much to emphasize one over another, reach very different results. Consider campaign contribution limits, if one stresses “equality” – one man one vote – one might put limits, if one stresses on “freedom,” i.e. freedom of people to speak and organize (rich or poor), one might not; there are other ways to frame the issues: one might emphasize on “freedom” of flow of ideas and impose limits to take away the “corrupting” influence of money …).

    I find the school of thought of legal realism particularly enlightening – although I don’t always subscribe to the fundamental political motivations. The law, the realists would say, is never “deterministic.” That is, for any issue, you can reach any result you want.

    Slavery? Emphasize on “property” instead of “freedom” and you get the result you want. Chinese exclusion? Emphasize on “freedom” of Americans to be themselves and not be corrupted by the yellow horde instead of “equality.” Check. You can go on and on…

    “Rule of law” eventually work only as well as the men who run it, the politics that run the society, and ultimate on the state of affairs of the society. A corrupt decadent society will have a decadent, corrupt “rule of law.” There is really nothing special about “rule of law” over “rule of men.” During China’s gilded age, when government is well off, when society is well off, when people are well off, the “rule of men” (i.e. principled bureaucrats, together with principled rules as “framework”) worked as well as “rule of law” today.

    My 2 cents… Really ought to write a post on this soon…

  4. Zack
    August 14th, 2014 at 07:35 | #4

    the idea of needing and having a ‘rule of law’ is like a religion; merely a form of control
    so much of western society relies on illusions to maintain function and hegemony
    but when the cracks do show, a militarised response is often the tool most used by US authorities. Look at what’s happening in Ferguson, USA right now

  5. Black Pheonix
    August 14th, 2014 at 11:55 | #5

    @Allen

    I agree with much of what Allen wrote.

    Additionally, “rule of law” is fundamentally flawed as “rule of men”, because we can’t possibly define laws for every possible situation that might arise in societies.

    Thus, we almost always fall back to stuff that “fills in the gaps” between the laws. (Which is basically still rule of men).

    In another term, it’s called “discretionary authority” in many modern Western Democracies.

    “Discretion” is just another word for “rule of men”.

    On the other hand, in MOST situations, “rule of men” is not arbitrary either, because society is governed according to customs of the people, i.e. the informal rules of social behavior.

    Even the British, who originated the modern Common Law systems, began with “customary laws” as the basis of Common Law.

    While many in the Western Democracies have emphasized on the “rule of law”, they have forgotten the importance of “rule of CUSTOMS”, the unwritten rules of society between people.

    And this is why the “rule of law” is actually breaking down in modern Democracies.

    When only which is on the law books matter, Laws are pushed and interpreted to the extreme boundaries of civility, and discretions are abused.

    Additionally, when “customs” are not emphasized, People began to diverge in their “customs” and even their realities.

    *
    On the point of slavery, I often considered why Europe, after abolishing slavery by law around the Middle Age, then suddenly revived slavery?

    Yet, China, which didn’t legally abolish slavery until 1910’s, saw slavery go out of fashion for much of its history after 232 BC?

    Simple answer: “Rule of law” doesn’t mean much, “rule of custom” dictates how ultimately laws will be implemented.

  6. N.M.Cheung
    August 14th, 2014 at 16:44 | #6

    @Allen

    One thing I find really objectionable about the fetish of rule of law is the total absence of justice in the discussion. Thus a rich person can hire lawyers and others to search for cracks in the law and get away with murder by a technicality. While someone that’s poor can be railroaded and forced to plead guilty for a lesser charge even if he’s innocent as Innocent Project by Barry Scheck demonstrates. The use of DNA evidences shows how prevalent miscarriage of justice were. The recent compensation offered to the innocents in the Central Park rape case doesn’t give their lives spent in jail back. I myself was pretty sure of their guilt at the time which I am ashamed to admit.

    Consider what Chinese government did and do for the benefit of over 1 billion people, for the western media that’s totally irrelevant on their fixation on rule of law and democracy. Frank Thomas asked “What’s Wrong with Kansas?”, I would think democracy does no favor for the poor as most do not bother to vote whatever their reasons, being cynical or realistic.

  7. August 21st, 2014 at 11:49 | #7

    @N.M.Cheung

    One thing I find really objectionable about the fetish of rule of law is the total absence of justice in the discussion.

    Discussion in the West has degenerated into a discussion about form over substance. Justice does not deal with the truly deep issues of justice, taking into considerations of all human life, factors, circumstances, history into account, but superficial discussions of democracy, rule of law, and liberty.

    Thus a rich person can hire lawyers and others to search for cracks in the law and get away with murder by a technicality. While someone that’s poor can be railroaded and forced to plead guilty for a lesser charge even if he’s innocent as Innocent Project by Barry Scheck demonstrates.

    This is only tip of ice berg. We know the rich and powerful not only play the legal games better (hiring the lawyers that have the resources to dig, distort, raise issues from different angles, etc.), but have a firm control over the law making process. What makes them so powerful is that they are not answerable to any demands for “justice,” but can hide behind the charade that this nation is a “democracy” governed by “rule of law.”

    The use of DNA evidences shows how prevalent miscarriage of justice were. The recent compensation offered to the innocents in the Central Park rape case doesn’t give their lives spent in jail back. I myself was pretty sure of their guilt at the time which I am ashamed to admit.

    We shouldn’t confuse genuine mistakes that resulted from good faith attempts at justice and endemic corruption that technology later reveal. I believe the D.N.A. technologies that are exonerating people in the past reveals the second type – where justice is corrupt and wielded based on, among others, stereotypes and prejudice.

    Trayvon’s recent death is just another subtle reminder how corrupt U.S. justice truly is (see, e.g., http://thinkprogress.org/justice/2014/02/26/3332391/trayvon-martin-years/). Police brutality against the poor and minority is endemic (see, e.g., http://rhrealitycheck.org/article/2014/08/18/just-ferguson-austins-problem-police-brutality/). So is Justice apathy toward the poor and minority.

    Consider what Chinese government did and do for the benefit of over 1 billion people, for the western media that’s totally irrelevant on their fixation on rule of law and democracy. Frank Thomas asked “What’s Wrong with Kansas?”, I would think democracy does no favor for the poor as most do not bother to vote whatever their reasons, being cynical or realistic.

    What’s wrong with Kansas? Where shall we start … It is a land where hundreds of thousands were exterminated, where European migrants are moved into rape the locals and take the land. Moving to more recently, it is a place where the U.S. put tremendous subsidies (agriculture subsidies of various sorts), funded by its wars and rapes from abroad.

    Is there a Ferguson hidden in Kansas that no media pays attention until things erupt … to only have police and military forces come into shut things down? The U.S. is a prison state (see, e.g., http://www.economist.com/blogs/democracyinamerica/2014/03/americas-prison-population, http://chicago.cbslocal.com/2014/05/06/u-s-leads-world-in-prison-population-by-wide-margin-failed-drug-policies-blamed/, http://www.globalresearch.ca/the-prison-industry-in-the-united-states-big-business-or-a-new-form-of-slavery/8289). And I don’t think it’s just bad policy. It’s part of its intimidation of the poor and dispossessed so that we don’t hear much about them. Is Kansas an island of oasis from this prison state? I doubt it…

  8. Black Pheonix
    August 21st, 2014 at 12:29 | #8

    @Allen

    “And I don’t think it’s just bad policy. It’s part of its intimidation of the poor and dispossessed so that we don’t hear much about them. Is Kansas an island of oasis from this prison state? I doubt it…”

    It is a prevailing mentality of willful ignorance.

    It is partly top-down driven apathy, and it is partly general self-deception.

    Like Racism, fundamentally, ignorance is the problem.

    Some guy told me just yesterday, that before 1970’s, “Oriental” was not considered an offensive racist term.

    Why? I asked.

    He said, because apparently, Asians didn’t bother to try to ban that word as offensive.

    By that logic, the N word would have been non-offensive as well before the 1960’s.

    It’s the “I didn’t know about the problem, so it didn’t exist” kind of logic.

    “Democracy”, “rule of law”? really, how much does the populous really understand about those concepts, or their problems?

    Do they really want to know? Not really.

    *
    HK is a good indication to China as far as how ridiculous the “self-deception” can go to.

    HK has 300,000 foreign domestic helpers, who get treated poorly and paid near slave wages (that even mainland Chinese seldom want to take those jobs).

    HK has a gambling problem, a major prostitution problem, a still massive ivory trade problem, local gang problem, even a stray dog problem (from the 1990’s). (See how many of these were actually left over’s from the British colonial days??)

    And yet, some HK’ers are out there busy harassing the mainland Chinese tourists, blaming them for everything, from buying too many HK properties, etc.

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