John A. Frost
Rule of Law, II
The Great American Experiment
Perhaps somewhere and sometime, our public school curriculum referred to the longest common law princess of governance codified in the Magna Carta of 1215. At its core is the relationship between an absolute monarch (King or Queen) and all free people within its jurisdiction. The enduring concept is that the law applies equally to all free people, but within a framework of the constitutional monarchy which in turn supports the legal doctrine of parliamentary sovereignty. The first elected Parliament in England concentrated up checking the arbitrary application of law by a very powerful monarch. This was an earthquake shift of power from capricious, sometimes odious, rule by the monarch to the elected representatives of individuals.
Now comes to mind the propositions of Albert Venn Dicey who described the Rule of Law as acting in three ways: the predominance of the regular law as opposed to the influence of arbitrary power; equality before the law; and that the constitutional laws are not the source but the consequent of the rights of individuals. (One Albert Venn Dicey was a British jurist and constitutional theorist. Familiar to most law students, he was noted for his theories of law based on the then current unwritten constitution and the rule of law in a common law sense.) In the American experiment, this concept is engendered by our Bill of Rights and Our Amendments to the Constitution. Further, the judicial system evolved as the arbiter of the law as opposed to the whim, sometimes capricious and unfettered judgments of the absolute monarch. This further led to the implied right of trial by jury. Later the doctrine of habeas corpus evolved. The rights of free men originally excluded slaves. But by the time our country was less than a hundred years old, slavery was abolished as a logical consequence of the rights of all men, regardless of race. The judicial system eventually expanded disputes with government to disputes between individuals (and corporations).
The Rule of Law was intended to prevent crime as well. It further codified the punishment for crime and gave rise to our entire penal system.
Even today, the Governor, the Department of Corrections and Law Enforcement Officers are dealing with the application of the Rule of Law in Oklahoma. We have issues: prison overcrowding, rules regarding bail and bond, rights of prisoners (convicted and awaiting trial), extraordinary police actions (quelling riots, controlling demonstrations, investigations, administration shortfalls).
Next time, a little more from Joseph Raz (judicial independence, non-retroactive law, access to the courts and other topics.)