Soft-Despotism vs The Rule of Law

The Law Under The Tender Caresses of Despots

In a Christian commonwealth the rule of law is a fundamental bulwark against absolutist, tyrannical government.  Slogans like, "we are a nation ruled by law, not by men" are meaningful and significant, insofar as no one man or no one authority owns and controls the law.

Laws, historically considered (as least within the Anglo-Saxon tradition), are written and promulgated and enforced by a diversity of powers: popular assemblies, titular assemblies, the courts of justice, and the crown.  Once laws are promulgated, the power of everyone, including all authorities and kings, is limited insofar as all kings and authorities are under the law thus made.  Their authority and power are necessarily limited thereby.

Now, of course, human laws are not divine.  There are just and unjust laws.  Laws at times need to be repealed, amended, and replaced.  The rule of law on its own is, therefore, no guarantee in and of itself of a just society.  Rather, the rule of law helps institutionalise the separation of powers and impedes the development of tyranny.  But, when tyrants control the law making and law enforcement processes the law becomes no friend to liberty.  The USSR--one of the most egregious dictatorships and tyrannies in recent history--could claim that it was a nation ruled by laws.  It's just that the dictators totally controlled the law-making processes.

In the soft-despotic state, such as found now throughout the West, a great deal of time is spent on promulgating, approving, and enforcing laws.
  The West, therefore, still claims that it is made up of societies which believe and practise the rule of law.  But the law has become the tool of despots and elites.  In such cases, to be a nation ruled by laws is no restraint upon tyranny at all.  The rule of law has become a myth, a just-so story.

The undermining of the rule of law is widespread.  In the United States one novel way the soft-despots and the soft-despotic state has taken hold is to employ a "real meaning" hermeneutic when interpreting laws.  The actual text of the law is laid aside in favour of what judges and courts and other branches of government believe to be the "real meaning" of the law, regardless of what the text of the law actually says.  

Blogger Patterico, himself an attorney, illustrates how this is turning the law upside down in the United States. The rule of law is rapidly becoming the rule of elites twisting and shaping the law to mean what they believe it ought to mean.  The particular issue under discussion is a case involving the interpretation of the Affordable Care Act (aka, Obamacare).

As I said last night, it is far from clear, but the good guys in the King v. Burwell case may lose. Scott Johnson explains how this results from the left’s placing the “spirit” of a law over its plain meaning, which he calls the triumph of the leftist will (h/t MD in Philly).  As Johnson reminds us, William Brennan once did the same thing with the Civil Rights Act of 1964, which said:

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee…to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

As Johnson notes, William Brennan turned “it shall be . . . unlawful . . . to discriminate against any individual because of his race” into the polar opposite: “it shall be lawful to discriminate against any (white) individual because of his race.” The reason? Forget the words, Brennan said. We have to look at subjective intentions. And the subjective intention of the law was to help blacks.

That would be the same thing as taking the words “established by the state” and treating them as though they did not exist. Progressives say they can do that because of the “spirit” of the law — i.e., the alleged subjective intentions of those who wrote the law. Me, I don’t care whether the people who wrote those words actually intended to limit subsidies to exchanges established by the state or not. That’s what they said, and what they said ends the matter. . . .

There was a time when some conservatives argued that what a legal text “means” depends on the subjective intention of the legislators. That it would be “activism” which “violates the separation of powers” for a judge to ignore subjective “legislative intent” for a purely textual reading. I argued until I was blue in the face against such an interpretation, explaining that it undermines the rule of law if the written word is not interpreted as meaning what it says.

With the advent of Halbig/King, curiously enough, no conservative disagrees with me any more. And that’s a good thing.

It is important to remember: when progressives tell you to ignore the words they wrote in a law, that is how progressives undermine the rule of law. They use an appeal to “intention” to make the words mean whatever they say they mean. This sort of thing, if accepted, means the rule of law disappears.

It’s the only thing we have left, and it’s slipping away, day by day.

It becomes a sham when courts and the executive branches of government ignore the text of the law in favour of what they assert the legislators and Parliament "really meant".  The rule of law is thus painlessly removed without anyone being the wiser.  In its place comes rule of the despots, by the despots, for the despots.