“This is a nation of laws not of men (and women).”
How often have we heard this said? It is accompanied by the claim that it’s Congress’s job to make the laws and the Supreme Court’s job to interpret them, along with the Constitution. Or, to put it in the shorthand: judges should not make the law.
It seems like a tidy division of labor, but there is a certain problem—namely, that the line between making and interpreting law is exceedingly fine—if it exists at all. Indeed, interpreting the law is tantamount to making it. Interpretation is a creative act.
Since in our society it is men and women who write and interpret the laws (and the Constitution), the rule of law is necessarily the rule of men and women.
I realize this is a heretical thought among advocates of individual freedom, but facts are facts and it’s better to face them. A weak argument for liberty is harmful to the cause, so let’s mount the best case we can.
Constitutions and laws do not speak for themselves. People must decide what they mean. This is by nature a controversial truth from which there is no escape. Seemingly clear language is often argued about for years, indeed decades and centuries. As I’ve written elsewhere, “[I]t’s not as if the proper interpretation (whatever that may be) can be hardwired somehow to guarantee that legislators, presidents, and judges will act in certain ways, or that the public will demand it. At every point people will be making the interpretive decisions, including the decision over which interpretation is right.”
Or as Ludwig Wittgenstein wrote in Philosophical Investigations, “[A]ny interpretation still hangs in the air along with what it interprets, and cannot give it any support.”
John Hasnas, a visiting professor at Duke University Law School and a first-rate legal philosopher, has taken up this matter in a paper explosively titled “The Myth of the Rule of Law.” (He has developed his thesis further in “The Depoliticization of Law” [pdf]. Quotations are from the earlier article.)
Hasnas argues that laws can never be determinate because no language is exempt from interpretation. The First Amendment to the Constitution is about as plain as language gets, but after more than 200 years its meaning is still subject to disagreement. Or, the Commerce Clause, which says Congress shall have the power to “regulate … commerce among the several states,” was initially interpreted as limited to interstate commerce, although that meaning is by no means obvious from the text. The framers were perfectly capable of writing “between citizens of different states” when they wanted to and as they did in Article III on the powers of the judiciary.
Thus to interpret law is to make law.
Moreover, in a legal system such as ours, Hasnas writes, there is inevitably a host of “incompatible, contradictory rules and principles…. This means that a logically sound argument can be found for any legal conclusion.” (Hasnas gives several examples.) “Because the law is made up of contradictory rules that can generate any conclusion,” Hasnas writes, “what conclusion one finds will be determined by what conclusion one looks for, i.e., by the hypothesis one decides to test. This will invariably be the one that intuitively ‘feels’ right, the one that is most congruent with one’s antecedent, underlying political and moral beliefs. Thus, legal conclusions are always determined by the normative assumptions of the decisionmaker…. [I]t is impossible to reach an objective decision based solely on the law. This is because the law is always open to interpretation and there is no such thing as a normatively neutral interpretation. The way one interprets the rules of law is always determined by one’s underlying moral and political beliefs.”
The upshot is that interpreting the law is an intrinsically political act.
Hasnas points out that the necessity for interpretation does not mean that the law will be acutely unstable. There is indeed a large degree of stability. The law changes over time, but not day to day. Yet, he writes, “The stability of the law derives not from any feature of the law itself, but from the overwhelming uniformity of ideological background among those empowered to make legal decisions…. [T]o assume that the law is stable because it is determinate is to reverse cause and effect. Rather, it is because the law is basically stable that it appears to be determinate. It is not the rule of law that gives us a stable legal system; it is the stability of the culturally shared values of the judiciary that gives rise and supports the myth of the rule of law.”
Hasnas (who advocates competition in the production of law) concludes, “The fact is that there is no such thing as a government of law and not people. The law is an amalgam of contradictory rules and counter-rules expressed in inherently vague language that can yield a legitimate legal argument for any desired conclusion.”
This need not lead us to pessimism or cynicism. As Thomas Paine recognized, the fundamental order that defines any society—indeed, the order without which we would call a group of people a mob rather than a society—originated not with top-down legislatures but from bottom-up custom, contract, and common-law processes. The great liberal legal scholar Bruno Leoni wrote in Freedom and the Law that a legislature is analogous to a central planner, with all the knowledge problems that plague it, while a common-law system is more like the free market, with far better access to the knowledge of time and place that is scattered throughout society and unavailable to a central authority. Better to progressively shrink the sphere in which legislators can operate so that people are free to govern themselves through voluntary exchange.
Advocates of liberty will ultimately carry the day not by invoking impossible standards like “the rule of law not of men,” but rather by directly upholding the standard of freedom and justice.