What we are constantly hearing is that the Conservatives are violating the concept of “rule of law”. The collectivist left is absolutely correct that “rule of law” is essential to a free and open society. We must ask ourselves what “rule of law” is before we can ascertain if the charges by the collectivists are accurate.
Rule of law is the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law. It secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power.
From this definition we could argue that the opposite of rule of law is arbitrary law. We must then ask what arbitrary law is. It is mandatory for despotic governments so that the entity at the apex of the power structure (such as a king, a junta, or a party committee) is capable of acting without the constraint of law when it wishes to do so. Arbitrary law is thus applying law in any manner deemed necessary to obtain a desired end even to the point of changing, dismantling, or creating law spontaneously.
Basics for rule of law to exist would be that laws must be open and clear, general in form, universal in application, and knowable to all. Legal requirements must be such that people are able to be guided by them; they must not place undue cognitive or behavioral demands on people to follow. The law should be stable and comprise determinate requirements that people can consult before acting, and legal obligations should not be retroactively established.
Arbitrary law exists when the law can be and is changed and manipulated to produce a certain outcome, when the laws are vague and unknown, and where they are used for purposes such as intimidation and not to bring justice.
For rule of law to exist, judges must give rulings based only on the law and any person prejudices of any kind must be put aside. The same ruling should be expected to be rendered given the same set of facts from all judges.
For rule of law to exist, lady justice must be blindfolded. Lady justice cannot consider factors such as sex, race, color of skin, political affiliation, religious affiliation, or any other such factors. When any of these factors are applied, arbitrary law has replaced rule of law and the nation is on “The Road to Tyranny.”
Examples of arbitrary law would be ignoring destruction of life and property in the name of political protesting, prosecuting trespassing for political purposes while exempting rioting, looting, and arson for political purposes. Using undue force on political opponents for intimidation purposes.
Following the supreme law of the land, the Constitution of the United States, and ruling that abortion is not a federal decision but a state decisions is not violating rule of law but upholding rule of law. To declare that a ruling by the Supreme Court is supreme to the Constitution is not rule of law but it is arbitrary law.
When a political movement cries that we must adhere to rule of law, it is essential that they understand rule of law and apply it to all situations, not just specific situations. To do otherwise is in fact endorsing arbitrary law and abandoning rule of law.
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