But it is in the administration of justice, or of law, that freedom or subjection of a people is tested. If this administration be in accordance with the arbitrary will of the legislator -- that is, if his will, as it appears in his statutes, be the highest rule of decision known to the judicial tribunals, -- the government is a despotism, and the people are slaves.If, on the other hand, the rule of decision be those principle of natural equity and justice, which constitute, or at least are embodied in, the general consciense of mankind, the people are free in just so far as that conscience is enlightened.
--Lysander Spooner An Essay on the Trial by Jury, 1852
To appreciate the significance of [the role of judges in society] it is necessary to free ourselves wholly from the erroneous conception that there can be first a society which then gives itself laws. This erroneous conception is basic to the constructivist rationalism which from Descartes and Hobbes through Rousseau and Bentham down to contemporary logical positivism has blinded students to the true relationship between law and government.It is only as a result of individuals observing certain common rules that a group of men can live together in those orderly relations which we call a society. It would therefore probably be nearer the truth if we inverted the plausible and widely held idea that law derives from authority and rather thought of all authority as deriving from law - not in the sense that the law appoints authority, but in the sense that authority commands obedience because (and so long as) is enforces a law presumed to exist independently of it and resting on a diffused opinion of what is right.
Not all law can therefore be the product of legislation; but power to legislate presupposed the recognition of some common rules; and such rules which underlie the power to legislate may also limit that power. No group is likely to agree on articulated rules unless its members already hold opinions that coincide in some degree. Such coincidence of opinion will thus have to precede explicit agreement on articulated rules of just conduct, although not agreement on particular ends of action. Persons differing in their general values may occasionally agree on, and effectively collaborate for, the achievement of particular concrete purposes. But such agreement on particular ends will never suffice for forming that lasting order which we call a society.
--F.A. Hayek, Law Legislation and Liberty, Vol I Rules and Order</>, Chapter 5 "Nomos: The Law of Liberty"
No system of government, will preserve for us, what is our own responsibility to defend. And for all the fury which might release upon catastrophic failures by our government officials to uphold the lawful laws, no recovery is possible without the people being well-informed of what is our responsibility and trust ... and duty to restore.
The rule of law is a belief system, a philosophy, a construction of man under an even higher order of the rule of law, which higher order for some people is God's, and for other people, it is some "force." Of which, our recognition helps to keep us humble....First_Salute
Allow me to add three relevant quotes (no more eloquent, but just as timeless):
1830's educational maxim: A demagogue would like a people half educated; enough to read what he says, but not enough to know whether it is true or not.
Thomas Jefferson: If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be.
John Adams: We electors have an important constitutional power placed in our hands: we have a check upon two branches of the legislature . . . It becomes necessary for every citizen, then, to be in some degree a statesman and to examine and judge for himself.
Note that all three, in their own way, refer to the lethal danger of an ignorant, uninformed populace. In order to be Adams' 'statesman,' a degree of awareness, knowledge and resolve is necessary. Jefferson warns that ignorance and freedom are, and always have been, mutually exclusive conditions. And the nearly-two-century-old maxim describes one of the vital strategies of the would-be tyrants: to keep the people educated enough to comprehend their 'line,' but ignorant enough to be unable to see through its deceptions.
No society can long exist without a well-defined system of laws, a clear characterization of justice, and a populace which comprehends the immutable underpinnings of both .... and which has the resolve to ensure that both remain undefiled.
Although written almost eight hundred years ago, two of the simplest rules regarding law and justice ever written by the pen of man are the fortieth and forty-fifth (of the sixty-three) principles of the Magna Carta:
40: To no one will we sell, to no one will we refuse or delay, right or justice.
45: We will not make justices, constables, sheriffs, or bailiffs, save of such as know the law of the kingdom and mean to observe it well.
Twenty-first century legalese/small print/loopholes have nothing on the wisdom of King John at Runnymede. We would do well to return to the simple. Sometime 'progress' tends to dilute....often it tends to obfuscate....and, in the case of twenty-first century American law and justice, it has completely obliterated the concept under which it received definition.
In his Common Sense, Thomas Paine wrote:
There are persons....who see not the full extent of the evil which threatens them; they solace themselves with hopes that the enemy, if he succeed, will be merciful. It is the madness of folly to expect mercy from those who have refused to do justice; and even mercy, where conquest is the object, is a trick of war. The cunning of the fox is as murderous as the violence of the wolf, and we ought to guard equally against both.
Paine's enemy....his fox and wolf....are all one and the same. In his day they were represented by the Crown. In our day they are embodied in those (many, and growing) among our (pseudo representative republic) leaders who bear allegiance to something other than the sovereignty of America and the good, and safety, of her people. But really the enemy, although sometimes sporting a different face, is always the same: tyranny.
Tyranny realized through violence is a tragedy. Tyranny realized through ignorance and apathy is an abomination.