Is Justice Compatible with the Rule of Law?
Every so often, a court case makes it into the news
for the sole purpose of showing that, as Dickens wrote, the law is indeed “a
ass.” The latest outrage making the rounds a few weeks ago: a
Pennsylvania widow, Eileen Battisti,
who lost her home over $6.30 in unpaid interest on school taxes.
Adding insult to injury, the home—valued at $280,000—sold for $116,000
at a forced auction.
Reaction has been predictably negative, leaving people aghast that
such a thing could happen over the price of a Big Mac combo. The
counterargument was summed up by the county’s solicitor, who explained,
“The county never wants to see anybody lose their home, but at the same
time the tax sale law, the tax real estate law, doesn’t give a whole lot
of room for error, either.”
While such an unjust result is indeed
appalling, those attacking the court are focusing their anger on the
wrong target. And properly diagnosing the problem is a necessary
condition for formulating an adequate solution. After explaining what I
see as the reasons behind these sorts of legal outrages, I will propose
what I think to be the best means of addressing them.
Everyone reading this piece is familiar with the phrase “the
rule of law.” While there are countless ways to define this concept,
its essence is a system in which legal rules are known, impersonal and
unambiguous. In an idealized version of the rule of law, everyone knows
in advance precisely what conduct law requires and the authorities
enforce the rules mechanically and neutrally. Of course, nowhere on
Earth has such a perfect system ever existed, nor could it. One reason
is the fallibility of human nature—some bureaucrats are biased, some
cops are corrupt, some prosecutors lazy and some judges incompetent.
A second, less obvious reason is
the need for discretion in how the law in enforced. Discretion is what
enables the authorities to bridge the gap between law and justice. Yes,
you’re speeding, but since you’re just keeping up with the flow of
traffic, we won’t pull you over. Yes, we found a bag of weed in your
car, but since it’s a small amount, we won’t take your kids away. Yes,
you have no legal status in this country, but since you arrived as a
toddler, we won’t deport you. Given that it is impossible to define in
advance every circumstance that might render the application of a law
unjust, only discretion can make it possible to avoid outrageous legal
But while discretion is
necessary to avoid the law becoming a monster, the more discretion the
legal system allows, the further it deviates from the ideal of the rule
of law. Imagine a country with one law on the books that reads, “No one
shall conduct himself in an undesirable manner. Breach of this
obligation shall give rise to penalties as appropriate under the
circumstances.” A statute that grants the authorities such unfettered
discretion to do anything they wish would have given complete legal
cover to the entire Nazi regime. And so there is a fundamental tension
between making the law predictable and making it flexible.
Unfortunately, there is no obvious equilibrium point for striking the
right balance between the two.
“While discretion is necessary
to avoid the law becoming a monster, the more discretion the
legal system allows, the further it deviates from the ideal
of the rule of law.”
The consensus seemed to be that
the problem in the Battisti decision was an unfeeling judge—one typical
read, “Pennsylvania Court Rules It’s OK to Auction Off Widow’s $280K
Home Over a $6 Tax Bill.” But if the law really is as inflexible as the
county solicitor suggests it is, then the judge’s hands were tied. He
had no choice but to order the seizure of Ms. Battisti’s home, lest he
violate the very laws that he is sworn to uphold and enforce. No one
wants an unjust ruling, but what if the alternative is judges ignoring
the law based on their personal feelings about the case?
If the issue is that the law put
the judge in a straightjacket, isn’t the solution obvious? As some
have suggested, give the court discretion in applying the law. Allow
it to waive the interest charges, defer payment to next year or impose a
fine in lieu of seizing the house. Wouldn’t that fix the problem? Yes
and no. Yes, because it would have allowed him to get Ms. Battisti off
the hook. No, because—as we’ve just seen—as the law becomes more
discretionary, so it becomes less predictable and more arbitrary.
Granted, allowing courts to use
some judgement in enforcing school taxes would not seriously imperil the
rule of law. But the problem is that every single requirement of every
single law has the potential to bring about an unreasonable outcome of
the kind that befell Ms. Battisti. If you think that the solution to
such cases is to inject more discretion into the legal system, ask
yourself what exactly is the brake on this slippery slope. For so long
as there are laws that provide for automatic consequences, there will be
situations that cry out for making an exception and trigger calls for
adding yet some more flexibility. But there is a point at which the law
becomes so malleable that it can be forged into whatever the authorities
wish it to be. That is the point at which we are no longer governed by
laws, but instead by individuals and their personal whims. What
mechanism can ensure that we don’t make the law so discretionary that we
never reach that point? In a word: none.
Instead of making the laws more
flexible, a far better solution is to make as little of the human
experience subject to legislated rules as possible. Simply put, if the
government is not involved in a situation then the tension between legal
predictability vs. flexibility simply disappears. For example, if the
local school were a private business funded by willing customers—or a
voluntary levy on local residents—then, like any private business, it
could simply decide to waive payment. And if the contract under which
the school collects payments allowed it to seize a person’s house for
non-payment, it would need to convince whatever tribunal the parties had
agreed would settle their disputes to enforce such a draconian
punishment over such a small bill. Incidentally, it’s highly unlikely
that private schools would be empowered to seize someone’s home; other
than a lender taking security for a loan, it’s hard to imagine any
private business finding many customers if it insisted on such a
Ms. Battisti’s case is a sad
one, and I do hope that the higher court to which
she is appealing the ruling finds a way to allow her to keep her
home. But when I read of such events, my reaction is not to ask why the
government can’t be more reasonable. It is to ask why the government has
to be involved at all. By necessity, the state’s behaviour must be
governed by laws that define in advance what it can and cannot do. The
alternative is the tyranny of a state empowered to do anything it sees
fit. The acceptable boundaries of private behaviour, however, are
defined not by what is arbitrary, but only by what is harmful to others.
You are perfectly entitled to act as capriciously and as haphazardly as
you like, so long as you do not infringe on anyone else’s personal
In its conduct, the state must
be like a train that follows the tracks laid out for it ahead of time.
In theirs, however, individuals are free to be like aircraft—going in
whatever direction they like so long as they do not run into one
another. Look back at the wording of the hypothetical statute I
described above: “No one shall conduct himself in an undesirable manner.
Breach of this obligation shall give rise to penalties as appropriate
under the circumstances.” That would make for a terrible law indeed. But
it makes for a pretty good definition of how people cope with each other
in daily life. The way to add more humanity to our dealings with those
around us is to remove the state from the equation.
From the same author
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The Belle Knox Controversy and How to Make the World
a Better Place
320 – March 15, 2014)
Civil Forfeiture Laws: Legalizing Theft?
319 – February 15, 2014)
"There Oughta Be a Law!"
318 – January 15, 2014)
Nelson Mandela, Freedom Fighter? A Libertarian
317 – December 15, 2013)
First written appearance of the
word 'liberty,' circa 2300 B.C.
Le Québécois Libre
Promoting individual liberty, free markets and voluntary
cooperation since 1998.