Hammurabi’s Code: Is It Clear Now?
The state of Israel has just demonstrated two things: it is substantially a Rechtsstaat, a state of law and justice (at least with respect to its own citizens) and it is not. The son of the prime minister has been indicted for violating the laws governing political campaign financing, not something that would happen in lots of other countries. It seems that they have affirmed the principle that no one is above the law. At the same time, one wonders whether the “laws” governing campaign finance are compatible with the rule of law. If they are like the statutes in the U.S. , they are virtually impossible to follow without myriad mistakes, each of which opens one to federal prosecution. As the BBC points out,
Omri Sharon, who ran his father’s election campaign, has told the Jerusalem Post newspaper that the strict limits on funding in place were unreasonable.
He says he is the first person to be tried for breaking the Political Parties law and has already waived his parliamentary immunity to face the charges.
This does not seem like the repulsive complaint of former U.S. vice president Al Gore that when he violated a known rule not to solicit money on federal government property “there is no controlling legal authority,” which seemed to be his interpretation of the fact that the rule was so clear that in over a hundred years no one had been prosecuted for violating it. Since the Israeli laws are relatively recent, it seems more likely that they are vague and unclear, as opposed to the case of Al Gore, in which they were so clear that everyone else was smart enough not to use the white house phones to ask for money. (The political parties maintain offices in D.C. to which politicians walk to make phone solicitations, at least the financial type.)
It may be useful to remember the warning of James Madison against a “mutable” (i.e., ever changing) policy in Federalist No. 62:
The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the FEW, not for the MANY.
All may be subject to the rules, but if the rules are so complex that none can follow them, then they cease to be rules. And since their application will be inconsistent, their application will be discretionary, which means….that not all will be subject to them.