(This is the third in a series dealing with fundamental concepts underlying the Rule of Law as applied to the American Experiment in governance. The previous installment hinted at the teachings of Joseph Raz who is a Visiting Professor of Law and Philosophy at King’s College, London. He is 78.)
The cornerstone tenant of his views rests on the belief that the Rule of Law should not be based on religion or a specific moral order (Islam, Christianity, Hindu, Yoga, etc.) but on the prevailing social and ethical order. (The Constitutional Originalists would, of course, disagree.) Basically, the law should be a construct of human beings in a social situation and not on theocratic or other dictates. The social order is made up of an infinite number of moral beliefs, concepts and precepts. In other words, moral pluralism. The law should reflect social facts, custom and practicalities. In the American System, the Congress deals with the creation of laws and the Administration deals in the enforcement of laws and the Courts deal in interpretation of laws. Raz suggests these entities should respect the will of the citizens whom they represent, along with ethical logic and practical outcomes. This essentially subjects laws to logic and the sense of the common people. The faithfulness of the law is grounded in humanistic terms, not theocratic dictates.
For instance, there should be no laws which make an action illegal retroactively. This is logical common sense. It is called no ex post facto laws. This is different than than enforcing laws or neglecting to enforce laws already on the books. In the current politic, the lack of enforcement of laws regarding the possession, sale and use of marijuana did not change the law which Congress enacted making marijuana a prohibited Class I substance. By not enforcing the law, for a period of time and now enforcing it is not a violation of the ex post facto rule but it certainly raises the concern regarding social justice. Remember, we went through this during the Prohibition Era (the law was eventually repealed reflecting the changed social order). Congress is mandated to act now and should have acted sooner as to whether marijuana should be classified as a prohibited Class I drug. States should not be able to legalize a drug which the Federal Law has made illegal. If left to the Chief Executive, equal enforcement of the law can change on every change of administration. The current Executive is not mandated to adhere to the mandates of previous Chief Executives.
The creation of “sanctuary cities and states” is the other side of the coin. The Federal Government has every right to withhold funding from States and Cities which do not adhere to immigration laws and the supremacy of the Federal Government over these lower agencies. By taking no action, the adoption of sanctuary status rules will metastasize. The Congress must deal with this issue on a national level and insist on compliance with current law or change that law as part of their oversight responsibilities. Eventually, this issue will have to be decided by the Supreme Court.
In other words, the Federal Administration cannot ignore, without consequences, certain laws and enforce other laws by whim or political pressure. However, according to Raz, change can be embraced provided the consequences benefit the advancement of “the good life” and strengthens a positive social order.
Both issues should be taken up in the Congress as the representatives and observers of the practicalities of the social order.
The social order and common sense demand that Congress deal with the “dreamers” who entered the USA as children but entered illegally. Additionally, Congress must deal with chain immigration and the immigration lottery system as both are issues of the social order and common sense as well as the effects of such laws which impinge upon the rights of society for safety, economic welfare and other social concerns. The Administration cannot simply ignore or forget the current law, it must either allow “dreamers”, lottery selection of immigrants, relatives of immigrants or not. By turning to Congress, the Administration will reflect the common sense will of the people. Otherwise, we will devolve into rule by proclamation, by regulation and by whim of the current Administration.
Joseph Raz encapsulated many of these issues by the definition of “perfectionist liberalism” as “a family of views that base political principles on ‘ideals claiming to shape our overall conception of the good life, and not just our role as citizens.’” The center of this approach are autonomy and moral pluralism. The complications start when one tries to define “the good life.” It deals with politics, life and the ultimate nature of human conduct generally.
Moving to the next Reflection, the court system and its role in the Rule of Law.