The Rule of Law: Not Nearly as Objective as People Think

Thursday, March 21, 2019


A New York Times article, Old Rape Kits Finally Got Tested. 64 Attackers Were Convicted., reports that a push to test old rape kits is leading to convictions of attackers and rapists.

Ms. Sudbeck’s [rape] case is one of thousands that have gotten a second look from investigators since the Manhattan district attorney, Cyrus R. Vance Jr., committed $38 million in forfeiture money to help other jurisdictions test rape kits. Since the grants began being distributed in 2015, the evidence kits have led to 165 prosecutions in cases that were all but forgotten. So far, 64 of those have resulted in convictions.

Rarely have public dollars from a local prosecutor’s office been so directly tied to results with such national implications. The initiative has paid to get about 55,000 rape kits tested in 32 law enforcement agencies in 20 states, among them the police departments in Las Vegas, Philadelphia, Miami, Memphis, Austin, Tex., and Kansas City, Mo. Nearly half produced DNA matches strong enough to be added to the F.B.I.’s nationwide database of genetic profiles. About 9,200 of those matched with DNA profiles in the system, providing new leads and potential evidence.

Past failure to vindicate the rule of law by not testing rape kits is just one kind of subjectivity that suffuses the rule of law. It is a moral outrage and fairly common. Recently House Speaker Nancy Pelosi stated that it is not worth impeaching President Trump unless there is overwhelming evidence that could convince even congressional republicans. It is very likely that whatever evidence is available will not lead congressional republicans to vote to impeach Trump. Another congressional democrat commented that impeaching Trump can't be done unless there is a major public opinion shift to support impeachment. It is very likely that whatever evidence is available will not lead Trump supporters to want to see him impeached.

All of that makes impeachment a subjective exercise in partisan politics, not something based on the rule of law, evidence or logic. Convicted felon Paul Manafort received a 37-month sentence for 8 major felonies. Federal sentencing guidelines posited a 19-24 year sentence for what Manafort did. The federal judge in Manafort’s case was openly biased against and hostile to special counsel Mueller's prosecution of Manafort. In imposing the light sentence, the judge said that Manafort's life was “mostly blameless.” Since Manafort is a long term criminal, the judge’s sentence spared Manafort out of anger at Mueller, not based on the gravity of Manafort’s crimes. In this instance, the rule of law was almost purely subjective. It was heavily rigged in favor of white, white collar criminals.

  Some political philosophy on the Rule of Law concept: In a paper, Is The Rule Of Law An Essentially ContestedConcept (In Florida)?, a researcher analyzed how the 2000 election was treated by the courts. The paper comments:

For legal and political philosophers, one item of particular interest was the constant reference in public appeals of almost all the participants to the venerable ideal we call “the rule of law.” The references were legion, and often at odds with one another. This was true of every phase of the debacle. “One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the rule of law.” (dissent in the Supreme Court 2000 decision in Bush v. Gore Vice President Gore took the high line that public criticism of the courts was precluded by the Rule of Law. Yet plainly, many on his side thought that in the circumstances they could do nothing better for the Rule of Law than to condemn the majority's decision as shameful.

The paper’s author, Jeremy Waldron, points out that even before the Bush v. Gore decision, theorists were inching toward the conclusion that the rule of law concept was meaningless. Quoting one theorist, Judith Shklar:

It would not be very difficult to show that the phrase “the Rule of Law” has become meaningless thanks to ideological abuse and general over-use. It may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort therefore need be wasted on this bit of ruling-class chatter.

Waldron goes on to write that on Shklar's view, invoking the Rule of Law as an authority is “incapable of driving one's argument very much further forward than the argument could have driven on its own. . . . . at the end of the day, many will have formed the impression that the utterance of those magic words meant precious little more than "Hooray for our side!” Despite Shklar’s harsh assessment, Waldron points out that there might be real value in trying to rationalize the rule of law concept. The urgent, important problem that Waldron describes is how to make the law rule instead of having men rule using the law as an excuse to get what they want. Waldron's paper is complex, but it boils down to trying to find a solution to the problem of rule by men instead of by law. I think there are avenues to at least try that, but outcomes are not knowable without the necessary experimentation. That is for a different discussion focused on that issue.

 For this discussion it is sufficient to assert that the Rule of Law related to political matters is often, maybe usually, as or more subjective (ideological or in-group vs out-group) than objective. That is a significant source of political and social polarization in American society, e.g., the 2015 Obergefell Supreme Court decision that legalized same-sex marriage. In turn, that polarization can arguably constitute an existential threat to liberal democracy and possibly modern civilization, and maybe even the fate of the human species. Fixing the Rule of Law to at least some non-trivial extent seems to be a critically important task on the road to trying to rationalize politics relative to what it is now. That assumes partial rationalization is possible. Political rationalization really has its work cut out for it.

B&B orig: 3/13/19