We Americans are proud that we live in a nation governed by the rule of law, often thinking this guarantees justice. But just what does the rule of law mean? Unfortunately, this is one of those terms that can obscure underlying patterns.
When we use the term, the "rule of law," are we merely referring to form, such as how the laws are established? Laws can be instituted by edict, order, or democratic vote, for example. Or do we mean the substance of the laws, the principles and goals, such as whether it is vengeance or love, that guides the policy makers who adopt the laws?
To say we are governed by the rule of law, in and of itself, is not enough. All 2.3 million people now behind bars in the United States, constituting one out of every one hundred adults in the nation, got there though the process we call the rule of law. We know that not all of them experienced justice, and certainly not those who were wrongfully convicted.
Substance versus form is an important distinction that touches many areas of human endeavor. Confusing this distinction is one way institutions fostering social dysfunction nonetheless continue to survive. It is a common pattern.
We can use laws to legitimize both injustice and justice. There are many examples of the rule of law being used in misguided ways, Nazi Germany being one of the most egregious. The four Allied Nations prosecuted leading Nazis for war crimes in the Nuremburg Trials following World War II (19451949), and this was seen as an important process in establishing the marked difference between them and us. We followed the rule of law in bringing them to justice.
As it turned out, a disturbing aspect of those trials was the fact that the defendants seemed not to be remarkably different from the rest of us, and they, too, were committed to the rule of law.
The Nazis tried at Nuremburg included fathers who loved their children and their wives. Some were practicing Christians; some had a quiet and unassuming nature, demonstrating that being an average person was no insurance against the commission of terrible crimes. We can safely bet that few, if any, of the defendants saw themselves as evil or villainous.
Their devotion to the rule of law was what the Nazis relied on to keep them from appearing lawless and arbitrary. They did not murder or plunder without first passing a law or issuing an order that made it legal. They used the rule of law to whitewash their heinous deeds, while condemning to death those guilty of far less serious crimes, or no crimes at all.
Form, i.e., the fact the Nazis had adopted laws pursuant to some established procedure, trumped substance. The substance of their laws reflected a vengeful, destructive imperative to destroy millions of people who had committed no crime, and to do it in a sinister, sub-human way.
Unfortunately, form seems to have been enough to silence many of the Nazi's would-be critics, permitting their widespread genocide to proceed for far too long.
How the rule of law is established versus what the substance of the rule of law achieves is a critical distinction. To insure that our rule of law guarantees justice, we must pay close attention to its substance. If the rule of law is being misused, we have a duty to raise our voices in protest.
Based on an excerpt from Beyond Justice, Beyond Vengeance, A Call for a Compassionate Revolution by Sylvia Clute.
Posted on GenuineJustice.com on 9-21-10
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