Law and the Rule of Law

Thomas J. Bernard, Pennsylvania State University

ABSTRACT
Laws usually imply broad values but often promote narrow interests. This may reflect cynicism or it may reflect a human tendency to confuse interests with values, especially in conflicts where interests are at stake. Either way, law often depends on whose ox is gored.

In the rule of law, however, individual laws are decided prior to conflicts and then followed in conflicts even if all parties are dissatisfied with the results. Over time, this drives laws towards broader values: deciding beforehand what to do whenm an ox is gored requires that I consider the possibility that my ox will be gored and the possibility that my ox will do the goring.

At present, lawyers and the media often ignore the law and argue in terms of values -- truth, justice, righteousness. This plays on inevitable dissatisfactions that result from following pre-determined rules in particular cases, and weakens public commitment to the rule of law. But the direct pursuit of societal values is extremely dangerous, since uitlimately it can free individuals to pursue narrow interests under the rubric of broad values, whether from cycnicsm or from the human tenmdency to confuse values and interests. Thus, the rule of law is a protective device that accommodates shortcomings in human nature.

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Updated 05/20/2006