An acquaintance was prating to me the other day about 'the rule of law' -- he may have even quoted that old bromide, 'a government of laws, not men'. What a curious infatuation. In the first place, it's impossible; in the second, undesirable.
To take the obvious and undeniable point first: laws are enforced and interpreted by men (lato sensu; including women nowadays). The law means what the cops and the DA and the contemptible Supreme Court say it means. There is no appeal to what Humbert Humbert calls the 'wingèd gentlemen of the jury'. The contorted bizarrerie of court rulings needs no belaboring for anybody who's paying attention; and this applies to benign and constructive rulings as much as to reactionary ones. Roe v Wade was as arbitrary and policy-driven as Citizens United.
Who, after all, made the laws? Not all of us got our laws from the Almighty Himself, on Sinai, and we can only envy those who did. The rest of have laws with a far less distinguished provenance -- a series of, well, men, for the most part; starting in the dark backward and abysm of time with the common law, and thence forward, through dubious characters like the Founding Fathers and Napoleon and oh, I don't know, pick your villain; Woodrow Wilson?
So there is no alternative to a government of men (and women of course). But really, even if there were, who would want it? Bad rulers can always be deposed or decapitated, like Louis XVI or Charles I. But if laws as such ever somehow per impossibile got into the saddle, how could you touch them?
It's really kind of a bizarre notion, isn't it?
There's a sensible interpretation, of course, for what is on the surface a nonsensical phrase: 'rule of law' really means something like 'orderliness' or 'procedurality'. That is to say, though we obey the law, we retain our human autonomy -- in the last analysis, law is our servant, not our master. We can change it if it no longer suits our human purposes. But then what are we to say when we can't -- when orderliness and procedurality make the obviously necessary outcome impossible? This is, of course, precisely the predicament many of us find ourselves in right now.
And yet one knows so many people who eagerly embrace these chains; who acclaim the 'rule of law' at the very moment when the rule of law threatens them, in principle at least, with rendition -- though few are worth rendering, even in the culinary sense; so the threat is more theoretical than real.
The ingenious caveat is to claim that the duly elected, nominated, and confirmed President, Congress, and Court, and all the other po-faced soup-hounds of legality, are somehow acting illegally: that there's some court somewhere even more supreme than the Supremes, and by its winged standards the actual agents of law are to be called to account.
Well, to borrow a phrase from Andrew Jackson, let the winged gentlemen enforce it. Much as I would like to see that happen, I am not holding my breath. If this transcendent law is going to be enforced, some non-winged gentlemen and ladies will have to enforce it -- must destroy the law in order to save it.