Rule of Law? Not anymore.

Most of the misery experienced by humans comes from lawlessness. This is not the same as anarchy, which literally means “no recognized authority.” Most countries today experience deficient “Rule of Law.” NB: “Crime” only exists under the Rule of Law; it is not the same as “Lawlessness.”

Ancient Romans felt that laws should be few, well publicized, and universally applied. Around 451 BCE they cast their laws on twelve bronze tablets, mounted in the most public place. No one could claim ignorance nor exception. Two years after revealing to the populace what the laws really were, the common people rose up, outraged by the privileges enjoyed by the elite, who were deposed. The Republican form of government was instituted (eg, consuls, tribunes, senate)

Prior to this time, customs (i.e, not laws) were enforced by an autocrat or council, as seemed right to them. While an absence of legal code endangers the population, an excessive code “turns everyman into a criminal” because no one can know all of it. (2)

Rules are not laws but frequently are enforced as if they were, even to exacting penalties. The Federal Register publishes new executive rules; it reached 90,402 pages in 2023.

Common violations of the rule of law:

* Presidents making executive orders that they know are unconstitutional (eg Student Loan forgiveness)

* Unjust confiscation, as when a property wherein crime is committed can be “taken” by the state (an executive function) without action by the judicial. Eg if drugs are found in a vehicle.

* Ex post facto law, where a new law is applied retroactively.

* When a government agency uses internal “courts” to enforce a regulation it has promulgated (the executive usurps the judicial prerogative). Eg: SEC using its own internal courts to punish rule violations.

* “Prosecutorial discretion” wherein the executive function (typically a District Attorney) can choose which persons will be prosecuted, and which will get a Free Pass. Eg Shoplifting, or mishandling classified documents.

“Lawfare” takes place when officials violate the rules for political gain or revenge. Eg: City DA or state AG creating a new interpretation of an existing law.

1. Mark Cartwright article, 11 April 2016, @“worldhistory.org/twelve tablets”

2. Ed Meese, “Too many Laws Turn Innocents into Criminals,” The Heritage Foundation, May 26, 2010. (Meese was the 75th Attorney General Of the U.S.)See https://www.heritage.org/crime-and-justice/commentary/too-many-laws-turn-innocents-criminalsJo letter on Rule of Law 12 April 2024