Saturday, September 12, 2009

The Gruel of Law (on the Rule of Law)

The "rule of law" is usually portrayed in the United States of America (and in Great Britain and many other nations) as a lofty ideal, to be treated with the reverence due the Constitution, Democracy, the Founding Fathers, and the automobile. Some of us, however, may want to look at what ideas we are being fed before let them poison our lives.

The rule of law in the United States does not feed all people equally. The rule of law for wealthy Americans is a smorgasbord of delights. For the upper middle class it has some variety and is wholesome enough as long there is no attempt to sneak over to the table of the rich. For working and middle class families, it is poor fare indeed. At the lower end of the economy, where the "middle class" starts looking suspiciously like slightly modernized serfs, what you get fed as the rule of law is a thin gruel, with nasty tidbits floating in it.

I'll call it the gruel of law. Gruel is an old-fashioned word. My dictionary gives its primary as: "thin easily digested porridge," essentially oat, barley, or corn meal cooked in water. As a secondary British meaning we have "punishment." Grueling means "exhausting." Meals of gruel are associated with prisons, orphanages, work camps, and the kind of pay that leads to the slow starvation of working families.

Ah, but the rule of law is supposed a fine thing, because it is opposed the the "rule of persons," (and lawlessness, which I won't discuss here). The rule of persons refers to systems of government where officials have the authority to make decisions without reference to written laws. So that a policeman might choose to arrest one person for almost any action, while other people are allowed to act with impunity. Taxes might be waved for members of a senior official's extended family; government land might be sold to some speculators for pennies, while not being for sale to others (like indigenous people who once lived there) at any price.

The rule of persons is not, however, always a bad thing. The Chinese, over a long period of time, worked out an elaborate system that tried to ensure that the rule of persons was carried out only by persons who were just in their judgments. However, for the purposes of this essay, I will allow that the rule of persons has usually proved to be an undesirable system of government.

Still, we should take a look at the gruel we are being served. In American law the gruel comes it two big varieties. One is called criminal law, the other civil. Don't be fooled by the names of the gruel. What is really meant by this division is that the government pays for lawyers to prosecute, and police (with jails and electric chairs) to enforce the criminal law, or criminal gruel. Civil law, or gruel, is brought before government courts, but each party must pay for its own lawyers.

Take a currently talked about example where the gruel is about to be improved. Consider an insurance company that accepts health insurance payments from a well person for a period of years, promising to pay for medical services when the insured becomes sick. Instead, when the insured needs an expensive or chronic therapy, the insurer "drops the policy." What has happened here is fraud, a form of theft. But it does no good to call the police, or prosecutors. They will say this is a bad thing, but what you have is a contract problem. Civil gruel. You must hire an attorney to make the insurer pay you what is due. And the courts may rule that the insurer did nothing wrong in taking tens or hundreds of thousands of dollars from you, and in returning insuring you as long as you did not get sick.

But if the same amount of money were stolen in only a slightly different fashion, by different persons, it would be theft. Suppose, for instance, that you had put the equivalent of the medical insurance payments in a safe. When you finally need the cash, and are counting it out to take to the hospital to pay your bills, a crooked relative steals the money. Now, strangely, you can call the police, and your cousin will probably be sent to jail if you press charges. At no expense to you; you won't need to hire the lawyer.

In this example (and I could give a thousand more) the gruel of law looks astonishingly similar to the gruel of people. Why is the insurance company treated as a privileged person?

I am not just talking about the kinds of defects in the system that at times send an innocent man to jail and set a guilty man free. People lie, and the crime detection process is fallible. Even in the most just, least corrupt systems errors will be made.

The gruel of law is not errors in a basically just system. It is a system constructed to be unjust. It is a set of sieves that sifts the good things in life away from some people and piles those things up for the rich people to hoard.

The gruel of law has both evolved and been designed, in its large and small scales, over the centuries to suit the needs of the law-giving class. The law-giving class corresponds closely, most of the time, to those who are able to fund political campaigns, lobbyists, and lawyers. In America anyone can play, but it is rare that a political candidate can convince a hundred thousand people to donate $10 each to his campaign so that he can defeat a candidate who really represents a hundred people who gladly give $10,000 each to their candidate. For the rich political contributions are an investment. They like the rule of law. They are happy to pay for laws that work to their advantage. And if the rule of law happens to go against them, they can use their wealth for a tempory bit of rule of persons. The rich are only in danger from the law when they are fighting with other rich people.

Occasionally ordinary people get tired of the gruel they are being served and revolt. Women were once served different gruel than men. Now they are served the same gruel, which has worked out nicely for rich and upper-middle-class women. For middle class and poor women, it has simply allowed them to fight over the poor gruel served to the men of their class. The same has come true for African-Americans in the last half-century.

Some people and organizations (Ralph Nader, etc.) work tirelessly to improve the gruel of law served to the lower classes in the United States. In my lifetime I have seen no overall improvement in the gruel. For every reformer there are a hundred paid lobbyists seeking better gruel for their employers, which means worse gruel for the rest of us.

Before suggesting how to change the gruel of law to something more resembling justice for all, we need to understand both the law and the system that produces it better. While not the main focus of this Natural Liberation blog, it is an important issue which I will return to in future essays.


The standard rap on the rule of law at Wikipedia

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