The rule of law is a sacred concept within
Given our historical commitment to laws and law keeping, to suggest that an over zealous commitment to a legal system is expensive, non-productive, stifling, and even dangerous sounds a little loony. Calls for re-evaluation of long held beliefs and assumptions are never welcomed because reassessment is painful and humbling. Despite the pain, however, I think a look at what relying on legal systems as our primary mode of governance really means is helpful.
A legal system begins with a code of laws or rules. These rules must be defined in a way that they can be communicated to those who must abide by the rules. This generally means the rules have to be committed to writing. This codification process, as it is generally called, requires a careful consideration of all the varied circumstances of those under the rule and at least some consideration of the ramifications of the law. i.e. what are the side effects to the law and its enforcement. This is a very difficult part of lawmaking. It necessitates voluminous documents and lengthy enactment processes which still don’t meet the need. Anticipating the undesired consequences of a law is a dicey business which legislators do not handle well.
No sooner is the ink on a law dry than someone determines a need for further clarification or revision, and this serves as an additional related effort. Often the courts get involved.
The existence of laws necessitates an enforcement agency. This in turn requires the employment of enforcers and the determination of enforcement rules, like what are the consequences of lawbreaking. Since law enforcement resources are limited, selective enforcement is inevitable. Someone has to decide what laws are enforced and which are ignored. Selective enforcement is obviously an invitation to the manifold abuses which we see or hear about every day. Anointing some as enforcers has its obvious dangers. Enforcers need to apply force. What force is acceptable and when. Who will oversee the use of force? How do we ask the enforcers to face the dangers of being unwelcome agents of government and then question their methods in doing that job at the risk of their own lives in some cases?
The enforcers get involved in determining who is breaking the law, so the resultant litany of paid informers, plea bargaining, entrapment, sting operations, police sweeps, profiling, etc. tends to sully the image of the enforcement agencies. If you are not very careful the enforcers begin to resemble the criminals they are to apprehend.
In addition to enforcement, the legal system requires a system to evaluate accused lawbreakers, establish their guilt or innocence, determine punishments, and then exact those punishments. Thus we accrue courts, judges, trail lawyers, bail bondsmen, jails, prisons, parole officers, jailers, halfway houses, and a multitude of prisoners and ex-prisoners who become marked for life as unredeemable and therefore the refuse of society. Every step in this legal process is fraught with opportunity for abuse, violence, recrimination, human error, tremendous public expense, and a general feeling that the pursuit of personal liberty is not being served. By definition legalism is about restricting freedom, not enhancing it. Legalists will argue that by restricting the bad guys’ freedom, I enhance my own. Well, there is the ultimate statement of self-righteous arrogance. I’m okay but you are not, so I’ll restrain you by the legal system.
The ultimate in legalism and in reality the source of our societal infatuation with laws and law keeping is the church and its traditions. Of course, those of the church persuasion will point out that the Bible is a book of rules and that our society is biblically based. That is precisely my point. A theology based on legalism has exactly the same inherent problems that we see in our governmental legal systems. Supposedly the Bible establishes the rules, but for two millennia the religious have argued, divided, and killed over what the rules are. A legal religious system, one with requirements and prerequisites, necessitates clarifying, judging, enforcing, and punishing agents also. For the most part the paid clergy have taken upon themselves all these roles, though they will solicit the help of the laity when necessary or expedient. A system which is subject to this much human error and folly and misjudgment, cannot be divinely ordained.
Reliance on legal systems promotes a number of undesirable attributes in those under those systems. The first is fear, both the fear of breaking the rules, perhaps inadvertently, and the fear of having rule breakers impact our own lives in an inverse way. The need for rules in the first place, says that some folks need to be restrained somehow. They are basically flawed in their moral/ethical perceptions. Despite the rules, these deficient people will probably hurt me or mine
The second attribute is guilt. If I recognize myself as a rule breaker, then I know that I do not measure up to the accepted standard in my society. I am somehow less worthy than the “good” people. Measuring up and being “good” can present a frustrating challenge to any of us.
Another attribute is condemnation. Under legalism there is a powerful tendency to point out the faults of others. This is done both to belittle the offenders and to elevate one’s self by comparison.
The temptation to condemn others leads to the final attribute of legalism- self-righteousness. This is the uncontrollable smugness of knowing that you are a good rule keeper in contrast to other folks. I am good enough to point out the faults of others and demand that they change.
Legalism ultimately then creates three groups among us, the fearful, the guilt ridden, and the self-righteous. Now that’s a fine state of affairs.
So what is the alternative? When the founding fathers of this country contemplated a new method of governance, they did not immediately generate a list of laws. Instead the developed a document of guiding principles. The thought was that overarching principles were enough to frame the governing process. Admittedly, there were two prominent schools of thought concerning how to govern. One school contended that the rich, the landed, the well educated needed preeminence in governing. The other expressed a greater faith in the so called common man to participate in his own governance. The faith which one generally has in his or her fellowman is crucial in determining how much society relies on rules and the associated legalism.
In religion, Christ expressed the summation of all law in the Golden Rule. It is really a guiding principle, the detailed application of which is left to the conscious of each individual. By setting aside legalism (Judge not that ye be not judged) Christ pointed ahead to a time when the laws would be written on the hearts of men Hebrews 10:16-17. The transition from today’s legalism to that reality is what is needed. We have tried many centuries of transformation by better laws and stricter law keeping. It has not worked. Something new is required, and the ultimate guiding principle is the only conceivable answer.