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The Rule of Law, Part 1

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Americans laud the rule of law. They invoke its majesty during common discussion and learned discourse. They applaud their storied adherence to this grand old concept and disparage nations and cultures that seem less inclined to live by its guidance. Despite this adulation, I suspect that few of those employing the doctrine could agree on a definition, and that fewer still would be able to describe its essential component.

This confused inability, at times bordering on linguistic chaos, arises in part — but only in part — from commonplace semantic origins. Men identify the meaning of thoughts, concepts, directions, and all kinds of ideas by the signification they term “language.” Words and phrases tend to collect verbal baggage in ordinary speech and commonly substitute for a larger body of thought, resulting in a type of shorthand that enables more alacrity and content in daily discussions as well as during more insightful disputation. Often, however, time and circumstance incline to distort customary meanings, an erosion guided by speakers and writers who neither know about nor care for the lessons history teaches. In the present instance, “the rule of law” suffers from degradation because most current speakers and writers ignore the historical roots of the concept and overlook its essential meaning.

Given this situation, what does one mean today when he claims that America follows the rule of law? Pressed for content, he is likely to say that Americans believe in equality, or in fairness, or in due process, or in democracy, or perhaps in justice for all people, or to reply with some similar platitude. Unfortunately, while nice-sounding words such as “fairness,” “equality,” “due process,” “democracy,” and “justice” may evoke good feelings, they are so lacking in consequential substance that these dismal definitional attempts often amount to no more than a restatement of the word or thought to be defined. At their best, such terms may convey only theoretical attributes or desired goals in place of concrete meaning, similar in manner to the fabled blind men describing an elephant after using their several tactile senses.

Jurisdiction

The classical and unique American principle of the rule of law rests upon a single element, the restrictive concept of jurisdiction, a postulate now often dismissed or simply forgotten, particularly by those displeased with its fetters. Yet, comprehension of, and adherence to, this fundamental tenet distinguishes this original American precept from all other systems and definitions of the phrase, including the modern generic liberal view commanding and dominating much current juridical and political conversation.

“Jurisdiction” refers to the legal authority under which a state may apply its coercive force to persons, things, and events. The government, or state, prescribes, channels, or limits human conduct by means of directives, sometimes expressed by rules and orders. Such rules and orders depend on the prevailing understanding of jurisdiction for their legitimacy. Hence, proper judicial jurisdiction to resolve a conflict requires both personal jurisdiction (a recognized legitimate basis justifying compulsion against all parties to the dispute) and subject-matter jurisdiction (accepted legal authority concerning the subject of the dispute). Proper legislative jurisdiction must rest on an agreed basis for prescribing or proscribing human conduct by enforceable rules or directives within a given territorial boundary, and proper administrative or executive jurisdiction necessitates both the creation of appropriate rules and orders and the accepted authority to enforce those laws.

At its birth the United States recognized and created a juridical construct unlike any other before or since. It erected its nascent legal system on a belief in, and adherence to, the recognition of inherent, permanent, and indestructible individual human rights. In the grand phrasing of the Declaration of Independence,

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness — That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed….

Theretofore, and ever after, other governments effectively organized and existed along very different principles, including the seminal notion that all power of every kind and nature resides in the state, an entity privileged to dole out “rights” to individuals and groups, and likewise legally empowered to restrict or eliminate those rights, including the most elemental and basic rights inhering in men simply by reason of their human nature and deserved dignity.

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    Ridgway K. (Dick) Foley Jr., an appellate litigator, practices law in Oregon and resides in Southern Arizona.