Should law be based on rules or principles? What is the its goal? To enact rules that authorities want people to obey or to outlaw wrongdoing? The former allows the law to be used to make people conform. But conformity and freedom are incompatible. Rules-based systems turn people into sheep, allowing them to live without making moral choices. Maybe people prefer that; if so, any hope of alleviating the human condition must be abandoned, since sheep are easily led to the sheering. by John Kozy
Wednesday, March 3, 2010
In Mesquite, TX, a four-year-old boy was sent to in-school suspension because the length of his hair was below his collar and his ears. The school questioned whether he should be allowed to attend preschool with other children, because the school district has a rule requiring the length of boy's hair to be above the collar and ears. Many consider this rule to be absurd, asking what has a student's hair got to do with his education? The school board justifies the rule by saying that boys' hair can be a disruptive influence in the classroom, but many doubt that four-year olds pay much attention to the hair-lengths of their playmates.
A New York City fourth-grader was sent to the principal's office and nearly suspended for bringing a two-inch plastic toy machine gun to school. The school district has a no tolerance policy on guns, even toy guns because they can be mistaken for real ones. The school's actions were subjected to ridicule, because no one could ever mistake a two-inch toy gun for a real one.
In Seattle, a fifteen-year-old girl was accused of brutally beating another young girl in a bus tunnel as security guards stood by and did nothing. The company employing the guards says they acted properly, because they had been given a rule to follow which states that they were to merely "observe and report" incidents. Citizens of Seattle and elsewhere who saw a video of the beating were outraged.
A few miles past Sharon Springs , KS, a wheel bearing on a train carrying coal became overheated and melted, letting a metal support drop down and grind on the rail, creating white hot molten metal droppings. The crew noticed smoke and immediately stopped the train in compliance with the rules. But the train was over a wooden bridge with creosote ties and trusses. The crew asked higher-ups to allow them to move the train but were instructed not to. "The Rules" prohibit moving the train when a part is defective! The bridge caught fire and burned down.
Rules, again and again, produce results that strike most people as wickedly unfair, unjust, and plainly stupid.
These four incidents"”many more could be cited"”raise a longstanding issue in jurisprudence"”should legal systems be based on rules or principles?
The debate on this issue is extensive and confusing. Rules and principles, it is claimed, are not easily distinguishable. The Golden Rule, for example, is really a principle and not a rule at all. So is the Hippocratic Oath. Principles, it is claimed, are often ambiguous. When a physician, for example, is asked to swear that s/he will "prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone," how is someone supposed to interpret "for the good of" and "never do harm"? Some claim that rules, because they can be stated more precisely are better. But are they? Are the three rules involved in the examples above better? The people who reacted adversely to these situations don't think so.
Under the new federal tobacco law, cigarette companies will no longer be allowed to use words like "light" or "mild" on packages to imply that some cigarettes are safer than others. So, "tobacco companies plan to honor the letter of the law"”but to shade the truth." They plan to use light-colored packaging for light cigarettes. So Marlboro Lights will be renamed Marlboro Gold and be packaged in a gold-colored box and Marlboro Ultra Lights will be named Marlboro Silver and be packaged in a silver-colored box. I suppose that if there were a brand named Marlboro Heavy, it would be packaged in a box colored lead grey.
Rules can be as troubling, perhaps more troubling, than principles. First, once someone knows what the rule is, an easy way to avoid obeying it can often be found. Many legal firms build their entire practices on teaching companies how to do just that. Second, no rules-writing body, such as a legislature, can possibly anticipate all of the ways in which a rule can be circumvented which gives rise to what are normally called loopholes. Loopholes are nothing but ways to break the law without breaking it. Rules based systems often merely provide people with ways to legally break the law, destroying the law's effectiveness.
Companies use rules in this way all the time. A company can market a harmful product and claim that it did nothing illegal, arguing that the product conformed to all the required safety regulations. In fact, there are even absurd examples. Some decades ago in Germany, a fast food hamburger chain was sued for having sold hamburgers made with spoiled meat. The company was acquitted when it proved that there was no meat in its hamburgers. That hundreds of people were sickened made no difference.
Often overlooked is a distinction between rules and principles that is rather obvious. Rules can be arbitrary; genuine principles cannot. For instance, in some countries, motor vehicles are driven on the road's right side, in others, on the left side. Each rule regulates traffic successfully. A country's choice of which rule to adopt is entirely arbitrary. A principle, on the other hand, must have some logical or moral foundation, it must embody a sense of rightness. For example, a person's privacy shall not be violated can function as a principle, because privacy by definition means "the quality or state of being apart from company or observation." So even secretly observing a person in private is an intrusion that renders the situation no longer private. Privacy is not privacy when it is intruded upon. To secretly watch a person in his own private circumstances lacks a sense of rightness; it just seems wrong; it is a logical contradiction.
The rules exemplified in the examples above lack this sense of rightness. Invoking them gives rise to the feeling that a wrong has been done. So what the controversy over rules and principles based legal systems really comes down to then is the legal system's goal. Is its goal to enact rules that authorities want people to obey or is it to outlaw wrongdoing? If it is the former, the law can be used by authorities and governments to make people conform, it is the way autocrats govern, and it is used for other malevolent purposes.
When school-district authorities, for instance, impose rules that have no direct educational purpose on students, they are imposing conformity, not educating, even if the rules are justified as necessary for some other purpose such as orderliness or security. But conformity and freedom are not compatible concepts.
Governments do the same thing. Conformity can be imposed and freedom extinguished by the enactment of rules that are seemingly justified by appeals to orderliness or security. Many believe that this is happening in America today. Are Americans giving up their long cherished freedoms for the sake of security? If so, the rules-based legal system is what provides the government with the means for doing so.
Moral decisions are, of course, often difficult to make, especially if one thinks in terms of one or another of the established moral doctrines. But principles based on logic or morality are not hard to write. All that is required is to ask the person proposing a principle to provide its logical or moral justification, to prove that the suggested principle is not merely an arbitrary rule.
Legal systems based on rules have sadly led to the disintegration of the old-fashioned common, non-legal idea of "justice." Rules-based systems turn people into sheep and make it possible for people to live without having to make moral choices. The majority of people pay little attention to how and why rules are made. They do not ask, they scarcely seem to care, which rules are good and which are bad, which are a help and which a nuisance, which are useful to society and which are not. Perhaps most people prefer that, but if so, any hope of ever alleviating the human condition must be abandoned, since sheep are easily led to the sheering.
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