TBA BRIEFINGS SEPTEMBER 2015 ♦ TOPEKA BAR ASSOCIATION ♦ Defining Rule of Law TBA Office Tiffany Fisher, Executive Director “Omnes legum servi sumus ut liberi esse possimus” 534 S. Kansas Avenue, Suite 1130 Topeka, Kansas 66603 Marcus Tullius Cicero, Oratio Pro A. Cluentio Habito, 66 Phone: 233-3945 B.C. email: [email protected] www.TopekaBar.com some months ago, I was engaged in a conversation concerning a legal dispute between an officer of the Board of Directors executive branch of government and a non-governmental James P. Rankin, President faction challenging the government’s reading of a statute. Laura Graham, President-Elect The court ruled against the government, finding the Dave Newbery, Treasurer government had read the statute in question incorrectly. In Diane Bellquist, Secretary Mark Bennett, Director subsequent discussions, someone indicated he had looked Glenda Cafer, Director up the statute and though it was ambiguous; he thought it Vince Cox, Director By Jim Rankin could be read consistently with the government’s position. James R. McEntire, Director Others disagreed. Another person asked: isn’t it the job of Kyle Mead, Director the government to read statutes and enforce the legislature’s or congress’s purpose in Amanda Vogelsberg, Director Jim Wright, Honorary President passing the law? Someone said that is the court’s job. Another person asked whether legislative intent should be considered, especially where the statute’s wording was Committee Chairpersons ambiguous? The discussion concluded with someone stating—“What about the rule Stephen W. Cavanaugh, Bench-Bar of law?” I thought, what did the phrase “rule of law” mean in a situation such as that Terri Bezek & Anthony Mattivi, Continuing Legal which we were discussing? Education Anthony Mattivi & Ron Wurtz, Criminal Law The conversation made me curious and I began to research the phrase “rule of Alan Alderson, Family Law law.” I found that others are also confused. In searching the internet, I found an online Vince Cox, Law Day resource prepared by the American Bar Association entitled: “Dialogue on the Rule Christopher Joseph, Legislative Mary Christopher, Medical-Legal of Law.” ABA Div. for Public Education (2008). The “Dialogue” is intended for use Shaye Downing & Doug Shima, Membership in civics courses and with community groups. Though the resource is limited, I found Dan Gronniger, Memorials it helpful. The opening of Part I of the Dialogue underscores the problem. Pedro Irigonegaray, Naturalization Scott Sumpter, Probate “The rule of law is a term that is often used but difficult to define. A frequently S. Lucky DeFries, Prof. Ethics & Grievance heard saying is that the rule of law means the government of law, not men. But Ryan Hellmer, Program & Entertainment what is meant by “a government of law, not men?” Aren’t laws made by men and Natalie Haag and Laura Graham, Public Relations women in their roles as legislator? Don’t men and women enforce the law as police Roger Fincher, Public Service Sarah Morse, Publications officers or interpret the law as judges? And don’t all of us choose to follow, or not Sarah Morse, Young Lawyers Division to follow, the law as we go about our daily lives? How does the rule of law exist Carol Ruth Bonebrake, Service to the Bar independently from the people who make, interpret it, and live it?”

Lawyers’ Assistance Committee The Dialogue uses several important quotations from notable Americans in If you or someone in your office feels a need to discuss a order to illuminate certain aspects of law. Social contract is mentioned as is judicial problem involving alcohol, substance abuse or depression, or with life in general, please call a member of the TBA independence. Also mentioned are right to counsel, justice, openness and transparency, Lawyers’ Assistance Committee. Confidentiality assured. predictable results, and protection of certain basic rights. Some of the noted aspects resonated with me more powerfully than others. With further research, I found these Jeb Benfer, Chair...... 233-2323 Kerry Gasper...... 233-8862 aspects are recognized in other countries as well. John Harper ...... 354-8188 For example, the noted Anglo-Israeli positivist scholar Joseph Raz explains the Claude Lee...... 783-8334 Billy Rork...... 235-1650 rule of law as follows: Jon Snyder...... 235-5500 “The rule of law is a political ideal which a legal system may lack or may possess Bryan Smith...... 234-2453 Or call KALAP toll-free at 1-888-342-9080 to a greater or lesser degree. That much is common ground. It is also to be insisted that the rule of law is just one of the virtues which a legal system may possess and ♦ TBA BRIEFINGS ♦ by which is it to be judged. It is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or Editor: Sarah Morse - 232-5162 or smorse@fisherpat- for the dignity of man… ‘The rule of law’ means literally what is says: the rule of terson.com Contributors: Terry Beck, Doug Shima, Amanda Kiefer continued on page 4 and Rich Eckert. ♦ Page 2 ♦ TBA BRIEFINGS SEPTEMBER 2015 continued from page 2 - Defining Liberty implementation of the other principles; the statement on the rule of law emphasizes the law. Taken in its broadest sense courts should be easily accessible; and the non purposiveness. There is, of course, this means that people should obey discretion of the crime preventing agencies authority in a civil association. The the law and be ruled by it. But in should not be allowed to pervert the law. authority must sustain order and keep political and legal theory it had come some years ago an Englishman wrote an the agreed upon rules in good repair, to be read in a narrower sense, that the essay directly addressing the subject. Michael making adjustments and revisions to government shall be ruled by the law Oakeshott concludes his essay entitled “The the rules when necessary. The authority, and subject to it. The ideal of the rule Rule of Law,” with these words: says Oakeshott, must be authentic. He of law in this sense is often expressed had in mind a democratically elected by the phrase ‘government by the “The rule of law bakes no bread, it is parliament. law and not by men.’ No sooner does unable to distribute loaves or fishes (it has none), and it cannot protect itself oakeshott did not favor rationalist one use these formulae than their standards for society, such as bills of obscurity becomes evident.” against external assault, but it remains the most civilized and least burdensome right and constitutional courts. He raz mentions eight basic principles: conception of a state yet to be devised.” thought judicial review was somehow All laws should be prospective, open incompatible with democracy. and clear; laws should be relatively Michael Oakeshott, On History, and Other Nevertheless, he praised the West’s stable; the making of particular laws Essays, (1983). achievement of individuality while (particular legal orders) should be guided Michael Oakeshott (1901 – 1990), was regretting the tendency of modern man by open, stable, clear and general rules; a humble Oxbridge don later appointed to put comfort, security, and equality the independence of the judiciary must professor of political science at the London ahead of freedom. be guaranteed; the principles of natural School of Economics. Oakeshott’s meaning, oakeshott distrusted abstractions, justice must be observed; the courts above, and in all his writings must be teased leading him to criticize America’s should have review powers over the from his times and Declaration of Independence. Abstract experiences—the principles, argued Oakeshott, are post period between the script, not prefaces. Indeed, abstractions world wars followed are often merely ideological slogans by the excesses of inspired by known history, but here, KEEP European fascism and I think Oakeshott is wrong. Some Nazism, Stalinism, abstraction is required in order to and British socialism. inculcate into the public consciousness PACE o a k e s h o t t ethical postulates. In debating Stephen WITH THE COURTS disdained what Douglas, Abraham Lincoln argued that he referred to the authors of the Declaration meant to as “enterprise set up a “structural maxim” for a free associations” either society which might be constructively within society or as referenced, constantly worked for, and a rule for the whole though never perfectly achieved, at least 1 of society. Oakeshott approximated. Lincoln was right; even viewed enterprise abstractions—especially when they are associations as in print—matter. JUST IN CASE teleocratic programs other great jurisprudential minds A PODCAST BY where the end is have advanced important ideas: A.V. more important Dicey, Lon L. Fuller, H. L. A. Hart, than the means. Hon. Richard Posner, and Ronald Oakeshott preferred Dworkin to name a few of the recent what he called a commentators. Hosted by Paige Nichols, and featuring criminal-law cases just in from the United civil association States Supreme Court, the Tenth Circuit, and the Kansas Appellate Courts where members are Quite some time after the court joined only by their ruling described above, I learned that the TUNE IN AT MONNAT.COM/PODCAST agreement to a set of 200 W. Douglas, #830 | Wichita, KS 67202 | 316.264.2800 rules. This is why his continued on page 5

♦ Page 4 ♦ SEPTEMBER 2015 TBA BRIEFINGS legislature clarified the statute which was context of a process which transcends the subject of the discussion. It occurred to substantive rules. Perhaps, however, the me that this is how the system is supposed words of a Baptist pastor best express to work. The “rule of law” might be seen how the conversation about law, and its as a conversational exchange among rule, will find its moral end. entities evolved from traditional methods “You deplore the demonstrations Save the of exercising power. The conversation taking place in Birmingham… You is foundationally based upon traditional express a great deal of anxiety over values that lend themselves to peace our willingness to break laws… The within the community. The secondary YLD Golf Tournament answer lies in the fact that there are Date level of conversation is a logical two types of laws: just and unjust… September 18, 2015 extension of the foundational level. How does one determine whether Cypress Ridge Golf Course Entities agree to forego violence and a law is just or unjust? A just law is deception in their common interactions a man-made code that squares with and are empowered by custom or written the moral law or the law of God. An Turkey Shoot consitution to exercise power for either unjust law is a code that is out of November 20, 2015 the greater good or for the protection of harmony with the moral law. To put a minority—an individual or a group. By Creekside at Berryton it in the terms of St. Thomas Aquinas: tradition, the exercise of power is deemed An unjust law is a human law that is moral because it comes from foundational not rooted in eternal law and natural Holiday Party rules intended to maintain peace. The law… One who breaks an unjust law public participates in this conversation December 3, 2015 must do so openly, lovingly, and with by loyalty to the entities, approving the a willingness to accept the penalty. I Governor's Row House agents of the entities, and by obedience submit that an individual who breaks a or disobedience to the rules of the law that conscience tells him is unjust, entities. In modernity, we might see this and who willingly accepts the penalty as the legislative or parliamentary branch of imprisonment in order to arouse the enrolling a law, whereupon the executive conscience of the community over its may then interpret the law as necessary injustice, is in reality expressing the and either impose or withhold force in highest respect for law.” Community accord with the law’s intended purpose. Next, the judiciary resolves disputes, if Martin Luther King, Jr., Letter from Events any, arising from executive action on the law and renders its opinion on the right Calendar reading of the law (in the United States, Birmingham Jail (April 16, 1963) the judiciary might declare the law itself 1 See the helpful commentary on unconstitutional). Last, the legislative Oakeshott’s thought in Digeser and EVENTS branch may choose to act again on the Flatham, “Oakeshott’s On Human same subject matter. There are, of course, Conduct” an essay included in The Women’s Night Out subsidiary or ancillary conversations Cambridge Companion to Oakeshott between private parties, lawyers, police, (2012). Also see, Timothy Fuller, benefitting the YWCA and judges. But to me, the rule of law is Michael Oakeshott, the Politics of Faith Thursday, October 8, a series of conversations carried out in and the Politics of Skepticism, (1996). 5-9 p.m. a few days, weeks, years or over many generations about societal policy, rights Correction to the August 2015 Visit ywcatopeka.org for more and duties, the foundation for which are President's Column: information or contact Alison St. Clair at rules deemed moral because they are seen In 1951, Topeka High School and junior as reasonably necessary to keep peace. high schools were integrated. The [email protected] or Sarah Morse at My simplistic conclusion about the Topeka Public grade schools remained rule of law is not as compelling as the segregated. conclusions of real philosophers. I have only tried to define the phrase in the [email protected] ♦ Page 5 ♦