Should We Support A Government Of Laws?

Is having a government of laws desirable? In the U.S. we seem to think so. But there are serious disadvantages to having a government of laws, and these are rarely discussed. Of course, there are also many disadvantages to having a government of men, but these are well known. So what’s wrong with a government of laws?

First, anyone who’s had to deal with a large bureaucracy knows all too well the disadvantages of a government of laws. Bureaucracies are inefficient and frustrating precisely because they are law-governed rather than people-governed. Someone above the law could cut through the red tape to deliver goods and services where they were needed. Someone governed by law, however, has to carry out the law’s dictates, even when doing so is wasteful, tedious, and unnecessary. In a fully law-governed society, as in a law-governed bureaucracy, there is no room for individual discretion and judgment. Sometimes this a good thing, but sometimes it isn’t.

Second, a government of laws is often forced to make decisions on the basis of irrelevant factors. Consider, for instance, the recent Supreme Court decision on medicinal marijuana. Ideally, the Court would have weighed the science, the practical considerations, and the moral arguments to deliver a thoughtful verdict. What happened, however, was far more typical — the judgment turned on a legal technicality that had nothing to do with the science or morality of smoking pot. The entire case turned on whether there was a rational basis for concluding that legalizing medicinal marijuana would substantially affect interstate commerce. Indeed, many Supreme Court decisions have been based on the interstate commerce clause even when this has virtually no connection to the issue (e.g. anti-segregation laws). Whatever your view on medicinal marijuana, it’s hard to believe that this “rational basis test” was the best way to settle the issue. But this is what happens when the law is sovereign.

Consider another example. In the U.S., it is extremely difficult to talk sensibly about gun control since the discussion will inevitably degenerate into a debate about the second amendment. Yet the second amendment has nothing to teach us about sensible gun policy. The second amendment can tell us only where the law stands - it cannot tell us what is right. That so many people confuse legality and rightness shows just how gripped we are by the idea of a government of laws.

Of course, there’s plenty to be said against a government of men. But that shouldn’t stop us from seeing the disadvantages of letting the law reign supreme.

Ed:Pub/LisaM

Article Author: Mike Valdman

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