The Glade 4.0

Except it is not the case. You've given no reason why the Rule of Law should be immune to situational adjustment. This is just bare assertion on your part, and claiming that it "happens to be the case" is irrelevant. So what if it's a platonic ideal? Who gives a **** about platonic ideals? All you're doing is appealing to the authority of a bunch of guys who basically sat down and wrote out their personal opinions. I don't know why you think anyone should accept them; Kant especially based on what you've written about his views sounds like a complete nincompoop.

The fact of the matter is Khross, that rule of law doesn't mean any such thing. Philosophers and writers don't decide what it mean. Pompous blowhards in ancient greece don't either. Everyday people do, and everyday people have decided that our laws should include flexibility and discretion.

Furthermore, it is compeltely unworkable to have such a system because adequate laws cannot be written to cover every situation before it happens. I'm sure you think this could be remedied by having a lot fewer laws, but getting rid of laws simply to achieve a philosophical ideal is utterly silly. It's a case of demanding that things Go horribly right.

As for your amusement, well, I can't say I'm surprised that you need to drag in the irrelevant fact that I'm in law enforcement. It seems you're unable to get through any thread remotely connected to anything to do with law enforcement without trying to pretend that somehow my personal situation is relevant. I guess you think that ad homeniem adds weight to your argument or something.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

Wow, TVTropes is an acceptable source for appeal to authority now? Sweet!

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"Aaaah! Emotions are weird!" - Amdee
"... Mirrorshades prevent the forces of normalcy from realizing that one is crazed and possibly dangerous. They are the symbol of the sun-staring visionary, the biker, the rocker, the policeman, and similar outlaws." - Bruce Sterling, preface to Mirrorshades

It's an acceptable source for Gone Horribly Right, and for using humor to make a point.

You can tell because Appeal to Authority is discussed in the first paragraph and TVtropes appears in the third.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

Diamondeye:

Since an appeal to popularity is now a valid justification for any argument, including dismissing established definitions and understanding of technical terms used to describe socio-political phenomena ...

The International Bar Association, the U.S. Justice Department, the United Nations, the European Union, and nearly every international legal advocacy group on the planet all agree on exactly aspect of their respective definitions of the Rule of Law: Discretion in Enforcement is NOT part of the Rule of the Law.

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Interesting that you bring up these definitions - each also refers to the rule of law being required to be developed by the public, yet you decry appeal to popularity.

Nowhere in any of those definitions does it discuss or promote zero thought policies. They state that the laws must be enforced equally, and sentencing should be fair. Nobody is arguing with this. To violate this, two students who perform the exact same action would be punished to different degrees. Nobody is suggesting this. We are suggesting that the degree to the violation of the law is taken into consideration in sentencing - equally.

Sentencing has always done this. This is not in conflict with rule of law, provided this is done as fairly as possible.

That's not rule of law, and if you read any of their definitions you would know as much. Again, that mitigation comes from the Jury, which is a public check on a government and its justice system. More to the point, all of those definitions state that Rule of Law requires the following:

1. A set of laws understandable by and knowable by the general population. This is not the case.
2. A set of laws that does not provide exemptions for law makers and people possessed of government authority. This is not the case.
3. A set of laws that are resistant to change and mutability, but not unchangeable entirely. This is not the case.
4. A set of laws that do not require specialized interpretation to be applicable in court. This is not the case.

You have a whole bunch of definitions for separating the Rule of Law from the Rule of Man. Discretion and flexibility in sentencing are not discretion and flexibility in enforcement. The Jury system provides for the former, because it is an independent check on government and its justice systems. That's a hugely significant part of the whole Rule of Law concept. The Jury exists to make sure the system works right in specific cases; the general apparatus itself must adhere to a specific set of conditions and rules.

Our system does not.

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No kidding? I didn't provide the definition? So yes, my post does not contain the definition. Here it is from the UN:



publicly promulgated. equally enforced. fairness in application. These are critical. Nowhere does it say that discretion cannot be used in sentencing provided that discretion is fair, equally done, and reasonable measures have been undertaken to avoid arbitrariness (this gets back to fairness).



The public check comes into the creation of the law, election of the judges, accountability of the judges, and the jury. Nothing in the definition removes discretion in sentencing.



What is not the case? What are you talking about?



What is not the case? Not sure what "this" you are referring to. Anyway, this is part of the definition - why are you quoting this to me, and why would common sense in sentencing affect exemptions to the law? Nobody's talking about exempting anyone.



What is not the case? Also - see above, this is not in the UN's definition.



Again, also not in the definition.



Not all trials include juries, and I have to say I'm a bit confused as to why you are talking about juries in relation to a child being suspended from school.



Are you suggesting that our system is not one of rule of law? First, I disagree. It meets the definition posted above. Second, are we caring about this? Are we talking about other systems now? I thought we were talking about our system, and the fact that discretion in sentencing has always been the norm. Where are you going with this? If you're heading down a side road here into a philosophical discussion on various legal systems, and the difference between Rule of Law vs. Rule of [insert here], and not actually talking about the system we have, then that's cool - but I'm gonna turn back...

No one is making an appeal to popularity. They're observing that across history, the concept of Rule of Law as actually applied has never included the sort of absolutism you are talking about.



You're just applying your own spin to get that:

According to the International Bar Association "thick" definition of Rule of Law:



Nothing in there even begins to imply that discretion is not part of the equation.

Furthermore, according to the Worldwide Governance Indicators the United States, despite enshrining discretion on the part of judges, prosecutors, and law enforcement, ranks in excess of 90% in terms of Rule of Law. See page 6.

So...

The fact of the matter is that of all the various thinkers you've cited from Plato to Kant and everyone else, all you're really doing is giving your spin on them. The same applies to your assertions about the various organizations you just listed. I'm sure you can come up with complex linguistic deconstructions of their positions to claim that's what they mean, but the fact of the matter is that the rule of law doesn't, in practice, exclude discretion. At best, you can claim that these organizations do not practice what they preach. However, I suspect that if we were to question the various gentlemen you've cited, or other scholars of comparable education to you, we'd discover that Khross's take on things is not, in fact, the 100% accurate assessment of what Kant, Plato, or anyone else meant.

Then of course, there's the other factor: So what?

So what if we don't have Rule of Law according to the philosophical definition? We do, in fact, still have a system of laws. It doesn't matter how many philosophers jump up and down and scream that it isn't "law" if it doesn't meet the ideal, but so what? Society is not going to stop using the word "law" just to make a bunch of philosophers happy, most or all of whom are dead anyhow and aren't the people that actually have to live with the system. Is there a concern that they will come back and haunt us for using the term not in accordance with their wisdom?

Similarly, what exactly is the benefit of having this philosophically perfect "rule of law"? Will it make things materially better? I doubt it; I do not think society will be materially improved by suspendimg small children from school for bringing tiny knives. I also do not think getting rid of every law that requires even a hint of discretion to avoid eventually enforcing it when the situation is absurd will result in meaningful improvements; we will simply have no laws at all, and your personal attraction to a near-law-free society is not a convincing reason. I do not see any reason to care about achieving a platonic ideal or whatever you want to call it for its own sake. Oh boy, we have philosophically perfect Rule of Law now! Whoop De Do! Now we can congratlalte ourselves on appeasing the requirements of a philosophical ideal that has absolutely no power to punish us for failing to adhere to it or reward us for doing so.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

Did you seriously just say, "How people used it in history" after telling me the writers and philosophers responsible for chronicling the term's use and development were immaterial to the discussion?

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No. You described philosophers, not historians; people telling others what the theoretical ideals were. While there might be a history of theoretical ideals, that isn't the same as the history of actual application. These people were not merely disinterested chroniclers; they were attempting to influence what the term meant.

Second, you have yet to establish why we should be concerned with the exact philosophical meanings of the term; everyday usage does not mirror that. Again, I'm not concerned that our entire legal system will *poof* into thin air for failing to use the term "Rule of Law" correctly in a philosophical sense, and while I keep looking for Immanuel Kant's ghost to appear and haunt me for contesting you, I am sorry to report that he is, so far, unaccounted for.

Tell me, how will the life of the average American be improved if we insist that Rule of Law conforms to your take on the views of various philosophers?

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

Well, for one, corruption in Washington would be dramatically reduced.

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"Aaaah! Emotions are weird!" - Amdee
"... Mirrorshades prevent the forces of normalcy from realizing that one is crazed and possibly dangerous. They are the symbol of the sun-staring visionary, the biker, the rocker, the policeman, and similar outlaws." - Bruce Sterling, preface to Mirrorshades

Which would be replaced by people being convicted on charges that technically apply but are absurdly inappropriate because no one anticipated that situation when writing the law.. like, you know, small children with pen knives.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

And without all the corruption and special interestizing being condoned, we'd have fewer, more well-reasoned and more widely discussed laws. Trust me, small children with pen knives was not something that "no one anticipated." They were simply ignored or shouted down by the urgency to legislate everything.

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"Aaaah! Emotions are weird!" - Amdee
"... Mirrorshades prevent the forces of normalcy from realizing that one is crazed and possibly dangerous. They are the symbol of the sun-staring visionary, the biker, the rocker, the policeman, and similar outlaws." - Bruce Sterling, preface to Mirrorshades

I would like to know how you know that these people were ignored or shouted down. I do not believe they existed beyond perhaps a trivial few; more likely anyone who that occured to just thought "oh, they're never going to enforce this against a little kid with a pen knife" because they thought the law would be enforced reasonably and with discretion.

I also do not believe fewer laws would be inherently better, nor that the quantity of legislation is a reason to make it enforced as an absolute. If the idea is to make all legislation absolute so as to get rid of as much legislation as possible I'd say that's a matter of the cure being as bad as or worse than the problem. It's also kicking the can down the road; initially the complaint was that discretion in enforcement meant that we did not have rule of law. Now, it appears, that the reason to have philosophically pure rule of law is simply to have fewer laws. Why is fewer laws better than more of them?

At one time in this country we had a lot fewer laws, but some of them were things like the Fugitive Slave Act. Fewer laws does not mean better automatically; nor is there any guarantee that we would be left with the best ones as a result of this process. It would also stymie almost any future legislation since someone will almost certainly think up an absurd situation for practically any law. Indeed we might find that the legislation we were left with was the worst of the lot by virtue of being the most absolute. You also might find that new legislation got even worse or more draconian, since the ability of interest groups would not be diminished one iota to lobby for legislation to protect children/whales/baby seals/battered women/butterflies/etc. except now it would be "NO EXCEPTIONS! THE LAW IS THE LAW RARR!!"

Also, there's the simple fact that ultimately the only thing preventing the system from going right back to discretionary enforcement is adherence to abstract philosophy. As soon as the public decides it's too inconvenient to continue with that, politicians, press, and corporations alike will be only too happy to abandon it.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

So, you're basically conceding that the quandary we're in here is *because* we don't live in a Rule of Law? People didn't object to the law's flaws because they thought, "surely this won't be enforced like that." And now, it is. Gosh, I wonder why this whole notion of having a Rule of Law (the way the philosophers talk about it, to pre-empt your quibbling apologetics for the political machine manipulating language to serve its own ends and obfuscate its affairs) is a good idea. Could it possibly be that, when you don't have subjective measures in the law, you don't build in flaws under the assumption they won't be abused? Imagine that.


You're reading a cause-and-effect where there isn't one. The reason to have absolute legislation is so that it's easily understood and not subject to manipulation and abuse. Another way to achieve "easily understood" is to reduce the amount of laws on the books. When I get cited for violating Ordnance 2,376 Article 93 Section III Paragraph C... there's a problem. What's the problem? Because if there are over two thousand multi-part laws floating around, I sure as hell don't even KNOW them all. So how can I expect to follow them all? Now, you get into trouble where selective enforcement can be abused; many experts claim that we commit dozens of crimes a day, so if somebody in a position of authority has a grudge against me, it's trivial to get me thrown in prison. This obviously doesn't happen as a routine matter, but the capability is there, and it's perfectly legal to do so. This is a rather disturbing situation for what we like to pretend is a free society.

So, no. The reason to have philosophically pure laws is not "to have fewer laws." You're transposing the goal with one of the means.

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"Aaaah! Emotions are weird!" - Amdee
"... Mirrorshades prevent the forces of normalcy from realizing that one is crazed and possibly dangerous. They are the symbol of the sun-staring visionary, the biker, the rocker, the policeman, and similar outlaws." - Bruce Sterling, preface to Mirrorshades

I don't see a quandry. The answer is perfectly obviosu to me: Don't enforce the rule against small children with penknives and then, re-write it to clarify.



Could it be that people expect elected and appointed leaders to exercise good judgement in the use of the powers they have been permitted to exercise? Imagine that.

Perhaps now that you've gotten the ranting and predjudicial language out of your system, you'd like to discuss the issue. So far, all you and Khross have done, after taking up the argument from Khross, is claim that there would be fewer laws in place. Again, so what? Why is that beneficial? You have not addressed my concerns; all you've done is start carrying on about "quibbling apologetics" because, as typical for this website, you simply can't deal with the fact that your preferred solution isn't perfect, and can't offer reasons to appeal to someone that doesn't share your fundamental assumptions, and so you resort to belittling points not in lockstep with the "gummint is bad" mantra of the majority here.

No, strike that. You could, you're more than smart enough. You just don't want to confront the fact that societal problems may be more complex than simplistic "follow the written word absolutely and without exception" solutions can address, and you want the problems that would arise from the application of such solutions to just go away.

Believe me, I would love to believe that just dispensing with the absurd morass of regulations and legislation we have would actually improve things. I really would love to buy what you're selling. It's so glittery, and shiny, and attractive. But the fact of the matter is that real life is not that simplistic and new problems would arise. But, I suppose it's easier to just whine about "apologism" than it would be to address them because really, you must know that this absolutism you are asking for isn't actually going to happen. That's part of the attraction of extreme solutions on the internet. One can sit in their comfy chair and advocate extremism, secure in the knowledge that chances are very, very good that it won';t ever actually occur and all the problems that are so easy to handwave away won't appear to haunt you... or your family.



Not at all. You have correctly cited a problem with too many laws, or rather, overly complex laws. Too many laws is not a problem; most of them are specialized and only apply to specialized fields and you can hire a professional to advise you.

I don't disagree with your assessment of the problem. However, I do not see any advantage in fewer laws, and more importantly, your assessment of the danger is vastly overrating it. Soem so-called "experts" have claimed we commit 3 felonies a day, but the evidence for that is shaky, at best.

More importantly, you A) are conflating two problems. Is the problem that we don't enforce laws absolutely, or that there are too many of them? We do not need "rule of law" to mean the former in order to address the latter problem. B) You are simply replacing one problem with another. The fact is that there are enormous numbers of activities that need regulation in order to prevent problems that we know from experience will occur. No matter how much some people might try to ask others "do you need to be 'controlled'" as a rhetorical question to dredge up adolescent fears of arbitrary rules, the fact is that everyone, individuals, corporations, organizations, churches, and governments, need to have rules. Again, simply dispensing with as many rules as possible will not guarantee that the best, or even very good ones, remain. At best we will eb left with an underregulated society wherein everyone simply takes advantage of the fact that a useable absolute rule simply cannot be written, and when the legislature throws up its hands in despair, will begin simply abusing the newly available loopholes.

Now are you going to address this? I thought you were a reasonable guy. Or are you simply going to jump on the bandwagon of handwavium?

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

I disagree completely. Mitigating circumstances are more important than the actions themselves. Or, in the words of Jean-Luc Picard...



(That said, STTNG would have been a better show if they'd executed Wesley in that episode.)

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Well Ali Baba had them forty thieves, Scheherezade had a thousand tales
But master you in luck 'cause up your sleeves you got a brand of magic never fails...
...Mister Aladdin, sir, What will your pleasure be?
Let me take your order, Jot it down -You ain't never had a friend like me
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Fixed.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

Justice and the Rule of Law are related by separate concepts.

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