So a few days ago I shared an article which argued that the rule of law was pretty much a myth. While various reasons were invoked, the main ones were that invariably nobody sticks strictly to the text of the law and carves out exceptions, loopholes, which is not expressly written, or invariably any attempt to interpret the terms will involve fundamental axiological arguments concerning which frame one uses to determine the meaning and referent of the law.
I would like to follow up that argument by referring to an observation I’ve made before: Despite the UK gaining a reputation for being the land of “do you have a loisense for that”, there are some laws and liberties they religiously enforce and defend. One such law is the freedom of speech in the original Bill of Rights 1688. However, this “freedom” is enforceable precisely because it is so delimited and specific. The text reads:
That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”
The first thing to note is that such freedom applies only to a very specific event: speech, debates, and proceedings in Parliament. Thus, MPs can literally say anything, literally anything, during a parliamentary proceeding and they cannot be held liable in tort nor punishable by the law. We need to note that this does not mean that MPs *by themselves* have some sort of immunity to speak as they like whenever they like. Outside of parliamentary proceedings they can still be sued for libel.
The main point however is that this law is so vigorously respected because it is so specific in its scope. Observe by contrast the UK’s Human Rights Act of 1998. It is supposed to encode general rights for all, including the right for freedom of speech. However, if it were to be so categorically enforced all laws against libels, revealing official secrets, etc, would be gone. So to “limit” the generality of these liberties the Article on freedom of speech includes the following clause:
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Thus this clause, which invokes terms and concepts which are as vague, general, and wide ranging as the original freedom of speech, renders the whole right virtually worthless. You can pretty much justify censoring and suing anyone with these terms. Thus when the Europeans tried to encode broad ranging freedoms, they felt compelled to encode broad ranging qualification as well, the end effect is basically to annul each other and render the written text worthless. It would be better to not have the Article at all then to waste so much ink to provide this verbiage for judges to rationalise whatever subjective prejudices they have after the fact.
So this is a good place to make a more general argument: The very nature of “constitutional rights” are such that their generality makes it impossible to categorically apply them in every case, if they are taken as written. Thus, courts and legislatures inevitably will have to transcend the text to carve out whatever exceptions or loopholes which were not expressly written to these rights. But of course, once you accept that judges and legislatures can set aside the constitutional text at will based on unwritten reasons, where will it end?
Here’s an example for thought. The Second Amendment seems categorical:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
This seems explicit: “the right of the people to keep and bear Arms, shall not be infringed”. However my title asks the obvious question: Are criminals then allowed to “keep and bear Arms” in prison? The answer here is an obvious no. Yet there is nothing in the text to suggest a limit to the “right of the people to keep and bear Arms”. So courts and legislatures will have to either carve out an unwritten exception to this rule, or start tinkering with the referent of the terms.
They could, for example, argue that criminals have ceased to be part of “the people” while they are serving their sentences, thus the term does not refer to them. However this route is dangerous as it would suggest that they lose all other rights of “the people” the moment they are convicted of a crime. They could try arguing that the right “to keep and bear Arms” *only* refer to the right to *own* Arms, not to *use* it. Thus, criminals can own as many weapons as they please, but they cannot use it or bring it into prison. In practice this seems like the parsing the US legal system in general adopts. You cannot bring your firearms into airports, planes, numerous public places and into the homes of other people. Your right “to keep and bear arms” extends only as far as your ownership does. You have full ownership rights in your own home, but the moment you step out of your house, your ownership rights end, and so does your right to bear arm. But once this principle is conceded where does it end? Can governments make it illegal to bring your firearms out of any property you own?
Thus, I would contend that if the Americans are freer than most of the West, it is not because of this thing called “the rule of law”, or even the “Constitution”, but because of the Americans willful loathing of the legal institutions and system of their own country whereby they can systematically disregard what is actually written or rationalised by their legal professions and assert their own sense and spirit of freedom against such rationalisation and attempts to carve out exceptions to the Constitution. The point as such isn’t about consistently adhering to the “rule of law” or framing a rational interpretation to the Constitution to determine when it applies, but asserting their visceral conviction of their rights and liberties against the law itself when they suspect bad faith actors of trying to encroach on their liberties.
To go back to the main topic, Sir Francis Bacon, the famed English Lord Chancellor, once observed that “wherein also laws are multiplied in number”, they are “slackened in vigour and execution”. When you have specific and delimited laws with particular referents and objects, their application and enforcement is easy, consistent, rational. But when you have broad massive laws attempting to cover vast swathes of human life, you end up with special pleading, ad hoc random carving out of exceptions to the rule, and generally the denial of the law as written itself, to its utter shame and disrepute.
So the constitutional mindset, far from advancing the rule of law, will usually end up rendering it a complete joke, a thinly veil farce for judges to manipulate the written text at will just to obtain their desired political outcome.