Thursday, December 15, 2011

REPOST (for Greg): The Rule of Law

Greg doesn't understand a fundamental principle of legal practise. So, here it is again:

This is a short and concise definition of The Rule of Law, which is a concept that the anti-government folk seem to be ignorant. The funny thing s that these people like talking about the Common Law and this is very much a common law concept.

I will add that the law of the United States at both the federal and state levels was originally largely derived from the common law system of English law, which was in force at the time of the Revolutionary War. However, U.S. law has diverged greatly from its English ancestor both in terms of substance and procedure, and has incorporated a number of civil law innovations. Still, the US Legal system is a common law system and this priciple applies.

The Rule Of Law
by Doctor Mark Cooray

The rule of law is fundamental to the western democratic order. Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual." Lord Chief Justice Coke quoting Bracton said in the case of Proclamations (1610) 77 ER 1352

"The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King".

The rule of law in its modern sense owes a great deal to the late Professor AV Dicey. Professor Dicey's writings about the rule of law are of enduring significance.

The essential characteristics of the rule of law are:

i. The supremacy of law, which means that all persons (individuals and government) are subject to law.
ii. A concept of justice which emphasises interpersonal adjudication, law based on standards and the importance of procedures.
iii. Restrictions on the exercise of discretionary power.
iv. The doctrine of judicial precedent.
v. The common law methodology.
vi. Legislation should be prospective and not retrospective.
vii. An independent judiciary.
viii. The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive.
ix. An underlying moral basis for all law.


  1. Where have I ever disagreed with those principles? In fact, one of my criticisms of a may-issue system is its discretionary nature--see characteristic iii. Note also that what is presented here relates to how a society is organized and the nature of its government. It does not say that an individual no longer has the right of self defense.

    Laci the Dog and Dog Gone would do well to look beyond their own prejudices with regard to me and others on my side.

  2. Greg provides great amusement by saying:
    Where have I ever disagreed with those principles?

    Well, Greg, if you understood them, then you would know that most of your comments demonstrate a disagreement with the principles.

    Some examples, you said something that state of mind was irrelevant.

    You have made it clear that you have no idea what the principles of statutory construction mean (The doctrine of judicial precedent).

    By saying that Heller-McDonald were correctly decided you show a disagreement with The doctrine of judicial precedent.

    You saying that "one of my criticisms of a may-issue system is its discretionary nature" as a violation of iii (Restrictions on the exercise of discretionary power). Those abuses are only wrong if they are arbitrary. They are not an abuse if they can be done impartially and consistently.

    Is a system which allows people who demonstrate that they are incapable of safely carrying a weapon be allowed to carry merely because they have a clean criminal record?

    Of course, you would agree with that, Greg, but we sincerely believe that you are incapable of safely carrying a firearm from your statements on this blog.

    The problem is that Heller-McDonald is a better example of the abuse of discretion. The rule of law puts limits on the discretionary power of the government, including the power to change laws.

    In fact, if anything you demonstrate that you approve of that principle from your statements about the law.

    This is why the western juridical tradition is Roman, not Greek. One of the major problems of ancient Greek democracy is that its conception of law does not contain the idea of limitation. The Greek word "eleutheria," commonly translated as "freedom," connotes a freedom that extends into the principle that what pleases the people is law. In other words, there were no limits to the (democratic) governments of ancient Greece, and the popular will, be it short-term passion or long-term rationality, would always become law if the demos so wished. "As soon as law lost its sacred character, popular sovereignty was placed above the law, and, by that very act, government by laws was once again fused and confused with government by men" (Sartori, 1987, p. 307).

    You have no problem with laws changing at the will of the people, Greg.

  3. In more specific terms, how is government arbitrariness constrained? The answer lies in several important principles of rule of law. First, if we are to limit government caprice, rule of law requires the supremacy of law as opposed to the supremacy of the government or any political party. To the noted English jurist A. V. Dicey rule of law means, "in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government" (Dicey, 1982, p. 120).

    Second, if the government is to be restricted in its exercise of discretion, the government has to follow legal procedures that are pre-fixed and pre-announced. As F. A. Hayek puts it, rule of law "means that a government in all its actions is bound by rules fixed and announced beforehand -- rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one's individual affairs on the basis of this knowledge" (Hayek, 1994, p.80). For example, in constitutional and criminal law, there is a prohibition on "ex post facto" laws, that is, no one should be punished for a crime not previously defined in law. In other words, the government cannot simply define a new crime and apply the new definition retrospectively. The rationale for this principle is that, first, the government should not be allowed to abuse its power by punishing individuals for political or other conveniences; second, it would be grossly unjust and oppressive for the government to punish someone for behavior that was not known to be criminal at the time of commission; third, to so punish individuals would result in so many uncertainties that it would create great inefficiencies.

    The problem is, Greg, that you don't understand what is going on, but that has never stopped you from opening your mouth to show how ignorant you are.

    It has nothing to do with prejudices as much as you continue to confirm that you are an idiot, Greg.

    Keep it up, moron.

  4. Laci the Dog,

    In a discretionary may-issue system, where is the rule of law?

    The government "in all its actions is bound by rules fixed and announced beforehand." If the issuing body has discretion, how is a person to know if he'll be approved?

    "the government should not be allowed to abuse its power by punishing individuals for political or other conveniences." Just so. When I apply for a license, the only consideration should be a set of rules given in advance, not whether I'm someone that the local police department likes. Nor does it fit with this principle to deny someone merely because that person might do something wrong in the future.

    I keep saying that the government does need clear limits on its power. That's exactly what you're saying in your comment about the differences in Roman and Greek law. The law must be limited, and there has to be a consistency that keeps the system from a chaos of constant change. One of the limits is a recognition that the people have inherent rights, rights that aren't issued to them by the government.

  5. Greg, if it can be shown that the person has some disqualifying characteristics.

    For example, the shall issue system only disqualifies a person if they have been convicted of a crime.

    They can have a criminal record a mile long, yet not be convicted.

    Wold you really want someone that the police know is dangerous carrying a concealed weapon just becuase they had never been convicted?

    Likewise, they could have mental issues which would make them disqualified to carry.

    Greg, you seemed to have missed my statement that:
    Those abuses are only wrong if they are arbitrary. They are not an abuse if they can be done impartially and consistently.

    One can have discretion, yet still work withing rules.

    Being forced to issue a licence merely because someone has a clean criminal record and has not been added to the list of mentally ill is against sanity and public safety.

    There are other safety reasons that someone shouldn't be allowed to carry as well.

    not whether I'm someone that the local police department likes.

    Greg, I would gather that not too many people like you, which is why you are concerned about that.

    The fact that you are concerned that you could be disqualified to carry using objective standards even under a may-issue system is extremely worrying for me.

    Are you confirming our fears that you are someone who is unsafe to possess firearms?

  6. Greg,Heller-McDonald is a far better example of an abuse of discretion than your may issue-shall issue dislike.

    First off, Heller-McDonald failed to take proper legal considerations in arriving at their conclusions/

    Your fear that you "right" is only one vote from being "lost" demonstrates that is a better example of an abuse of discretion.

    On the other hand,discretion for public safety make sense.

  7. Laci,

    For reference there are several lawsuits currently pending in federal courts over may-issue denials of concealed carry licenses. In every instance that I have reviewed, the plaintiffs claim in their lawsuits that authorities are acting in an arbitrary and capricious manner to deny licenses.

    The allegations sound like a broken record: authorities with discretionary power frequently issue licenses to politically connected cronies and routinely deny licenses to people with no criminal record, no criminal convictions, no history or indication of mental illness, and quite often with compelling, documented personal safety risks. (In terms of safety risks, I have read about plaintiffs that have received multiple death threats, been raped, carry large sums of money, etc.)

    It may sound like it is easy to simply sue the discretionary authority. The reality is that very few people have $50,000+ laying around to fund a lawsuit.

    And you know how these things work. Just about anyone with that much discretionary money to throw away on a lawsuit is probably already a crony and gets a concealed carry license. That means the average Joe cannot afford a lawsuit and never gets relief from the courts -- and nothing ever gets fixed.