The Rule of Law Will Sometimes Be Unjust. Defend It Anyway.

“The law is an ass.” 

Don’t like the law that would deport adults who had been brought illegally into the United States as children? This is the only country those people have ever really known, and they didn’t decide to come here: the law is an ass. 

Don’t like the law that would stop the president from saving lives by deploying troops to police American cities? Yes, crime has been dropping, but too many big American cities are still a horror show, even if we’ve become inured to it: the law is an ass. 

Some version of this phrase has been around for four hundred years. In fact, the asininity of the law arguably goes back at least to the dawn of the common law itself. And even though that understanding long predates liberalism, it is also one of liberalism’s cornerstones: the rule of law. The essential link between the rule of law and the law’s asininity lies in what medieval law produced: “rules of law.” Note: rules of law, or a rule of law, not the rule of law. Rules of law were, and are, connected to the rule of law, but they were not the same thing. What, then, was a rule of law?

Here are some examples, taken from the medieval common law. (I’ve avoided legalese.) Did your father lawfully possess an estate on the day he died? Then you get lawful possession. Were you dispossessed of an estate by your lord without judgment? Then you get possession. Are you a widow, and has your dead husband’s lord given you a third of your husband’s lands for your lifetime? If not, you get the third anyway. Rules of law are, well, rules, as Antonin Scalia once pointed out. If certain conditions apply, certain results occur. They are cut and dried. They might come in conflict with other rules of law, which is why the common law evolved a pretty clear hierarchy of rules, with some trumping others. But by themselves, each one yields a clear decision. In fact, rules of law are really what I think most people think of as just plain old laws. But calling them “rules of law” highlights that they are indeed rules.

So what was asinine about these rules of law? Usually, they yielded results that most people could regard as just. (I’m not counting people who lost in court: they always think their loss is wrong.) But being rules, rules of law could never take into account all the facts that might pertain to a case. In fact, the advantage of rules of law is that they cut down on what facts are pertinent. Real life is unbelievably complicated. Well-crafted rules of law produce just results most of the time. Really well-crafted ones almost always produce just results. If we had polls from the thirteenth century, it’s likely that most people would say, “Of course a widow should get a third of her husband’s lands.” And justice—what should happen—is what people most want out of laws.

But there’s a snake in paradise. Rules of law can never always produce justice. That’s because life really is complicated. The facts that pertain to doing true justice are unpredictable. Inevitably, even the best-designed rules of law will sometimes get it wrong, with unjust results. When that happens, the law will be an ass. 

So in a perfectly just world we need sometimes to ignore rules of law. We need a government, or at least agents of government (in other words, judges) who will take into account all of the truly pertinent facts, not just the facts that rules of law say are pertinent. We need a government, in other words, that is not bound by the law, to really deliver justice in a way that the law cannot.

Now medieval intellectuals had a term for a ruler unbound by law: a tyrant. Then, as now, it was a term of abuse. But it was not always so. Our “tyrant” derives from the Greek tyrannos, and for the Greeks, a tyrant was simply a ruler who had not come to power through legal means, not that he governed wickedly. Oedipus was a tyrant because he saved Thebes from the monstrous Sphinx and so did not become king by the normal law of succession. But that did not make him a bad ruler, although tyranny did have negative connotations. By the Middle Ages, however, what a tyrant was had definitively shifted. A tyrant was a ruler who refused to be bound by the law. And being a tyrant was a bad thing. One medieval commentator indicated that the law bridled the king.

That doesn’t mean that medieval people were free of tyrants. In English history, the famous bad kings were famous in part for ignoring the law. John, of course, was the king forced to issue Magna Carta in 1215. John’s and his predecessors’ courts had been busily imposing rules of law on the great men of the realm who held land from the king—the barons—regulating how they dealt with their own tenants. Yet John’s judges worked for John; his barons found that rules of law would never work for them if they worked against the king. In Magna Carta, John’s barons compelled him effectively to promise that such rules would apply to all free men—even in the king’s dealings with his barons. Indeed, the common law’s rules of law, which I mentioned above, were arguably enforced by Magna Carta. When John’s men put in his mouth an undertaking not to go against anyone “except by the law of the land,” they were striking against tyranny. John was not alone. A later bad medieval king, Richard II, disinherited one of his barons, breaking common law rules and provoking a rebellion that cost him his throne. Afterward, it was complained in parliament that he’d said “the law is in his mouth or in his breast”: that is, the law put no limit on a king. 

But sometimes we hate the law’s consequences. Medieval people did too, which is a reason they sometimes looked for wiggle room when it came to bridling the king with the law. The barons who demanded King John heed “the law of the land” allowed that they could be tried “by the judgement of their peers” instead of the law of the land—in other words, by men like themselves. (Trial “by one’s peers” only later came to be read as trial by jury. The “peers” of Magna Carta were the great men of the realm, men who had forced John to issue Magna Carta.) Others reasoned that kings might act outside the law when the need was urgent, especially to protect the country. Such shifts are today familiar. 

Indeed, by the end of the Middle Ages, the injustices created by rules of law produced an English chancery empowered to judge cases according to “equity”—fairness—as an alternative to the common law. That court served as a kind of safety valve, rather like Magna Carta’s trial by a baron’s peers. Even then, it was not a solution with long-term staying power. Statute trumps “equity,” then and now, even if the older common law doesn’t. And, indeed, equity itself started down a road like that of the common law, developing its own rules, becoming more predictable but less flexible, more likely occasionally to produce injustice. 

The dilemma here is, once again, that the law is an ass. And today’s democracies can be as inclined to fit the definition of medieval tyranny as medieval kings were. It is true that Americans worry most about presidents breaking rules of law and so the rule of law. But the other branches of government are vulnerable to this same problem, which is what complaints about “judicial tyranny” or “lawless courts” are, in theory, about.

Ignoring the rule of law can be a form of tyranny that does very good things; it can bring justice. I’d personally put DACA in that category, despite worries about moral hazard regarding parents of these children. But the rule of law is like freedom of speech. It’s been said that if you won’t defend speech that you hate, you don’t really believe in free speech. Similarly, if you won’t defend rules of law even when their results are unjust, you don’t really believe in rules of law—and so you don’t really believe in the rule of law. When rulers—even democratically elected presidents, legislators, or constitutionally appointed judges—set aside the law, they act as tyrants. Even when they are doing good, just things. 

In the end, I’m for the rule of law, for the reasons most people give for being for the rule of law. Yet that decision comes at an inevitable cost: injustice. To support the rule of law inevitably means to accept a constrained vision of the possible. And that’s the tragedy. Rejecting rules of law means rejecting the rule of law. It means tyranny. But embracing the rule of law, and so rules of law, inevitably means sometimes doing injustice. Supporters and critics of President Trump, and all of us who participate in present-day politics, should think about this.

Image credit: Court of King’s Bench (c. 1460). Public domain via Wikimedia Commons.