The Rule of Law: Yes and No

The Code of Hammurabi.jpg
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if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.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.

15 Responses to “The Rule of Law: Yes and No”

  1. Ross Levatter

    Without in any way wishing to defend such a paltroon as Al Gore, it is nonetheless somehow ironic to think that a principle as important as the rule of law hinges on something as trivial (especially in these days of cell phones) as where one placed a call, as opposed to whether or not it is appropriate for those in power to raise funds from those whom they have power over.


  2. Ross Levatter

    Also, and briefly, the fact, if correct, that Israeli politicians follow the law in this one instance [the case is not yet over], does not imply that Israel “follows the rule of law” any more than the fact a murderer does not jaywalk implies he follows the rule of law. This is not the place to discuss the history of Israeli legal codes, merely to point out the logic that determining whether or not a principle is followed cannot be determined by documenting one instance of the principle being followed.


  3. Tom G. Palmer

    Ross is certainly correct that one event does not the rule of law make. (Although one event might the rule of law break, if it were the right event.) So let me bring up another prominent example (in addition to the son of the prime minister being indicted): when the Supreme Court ordered the release of John Demjanjuk, who had been found innocent of the specific charges that had brought against him, they rebuffed the Attorney General, who had insisted (roughly — and almost certainly correctly) that Demjanjuk had certainly been guilty of something, as he had been a camp guard. Despite his terrible past and the remarkable sensitivity of the issue in Israel, the court did what the law demanded and released him, as he had not been found guilty of the specific charges against him and the law did not allow him to be subjected to double jeopardy. That spoke volumes about the respect for law in Israel. How many other middle eastern regimes would have A) had a process of law before independent courts, and B) released on grounds of the law a man who was clearly an “enemy of the state” (their state, at least) and almost 100% certain to have been guilty of other charges that the court did not allow to be brought against him?

    I’ll set aside the issue of the intricacies of campaign finance laws. The law that Gore broke was clear, straightforward (designed to keep politicians from hiring federal workers and skimming their salaries for politics), and well established. The newer laws (and I suspect that the Israeli laws are much closer to the new American laws) are muddled, confusing, inconsistent, and at least in Omri Sharon’s case, not well established. Those things do make a difference.

  4. Mark Brady

    Is the appropriate standard of comparison “other middle eastern regimes” or Western parliamentary democracies among whose number the Israeli government would wish to be numbered?

  5. Tom G. Palmer

    By either standard, the Israeli government would be in fairly good standing. If the former, it’s at the top. If the latter, it’s above France. (If Mr. Brady will recall, the French president ordered a political murder in New Zealand…..and nothing happened as a result.)

    That is, of course, a separate matter from the treatment of Palestinians in the occupied territories, as I indicated in my post above.

  6. Ross Levatter

    Even TWO sparrows, Tom, does not a spring make. At BEST, one could say that Israel was on par with the US in living by the rule of law; those of us who have read Roger Pilon’s “The Rule of Law in the Wake of Clinton” and further followed the effects of the War on Drugs and the PATRIOT Act on the rule of law, to say nothing of reading several recent supreme court rulings, would argue that’s a back-handed compliment.

    In fact, Israel’s commitment to the rule of law is no stronger than was South Africa’s under apartheid, a claim I’d be happy to argue for if pressed.

  7. A. Libertarian

    Even when the Israeli government takes security concerns too far and crosses the line, the Israeli Supreme Court reins them in. They forced the government to re-route the separation barrier, they frequently affirm petitions to stop home demolitions, and they outlawed torture. As far as treating non-citizens is concerned, it is difficult to make a comparison to other western democracies. It seems to me that Israel is on the same footing as the U.S., if not better.

  8. Ross,

    The reason people feel the need to defend Israel is not that it is perfect (it has had its mis-steps, as have we), only that it receives far and away the majority of criticism in the ME, while it is far and away the least deserving of it.

    Every example of “apartheid” you can give for Israel can be easily one-upped by it’s neighbors, for instance. Jordan, for instance, will not allow any descendant of a Palestinian to become a citizen; Israel has Palestinian citizens who vote. (Just not those who live in the “occupied territories”, or whatever the term du jour is).

    Israel is comparably a shining beacon of democracy and rule of law compared to all its neighbors, and IT gets the lion’s share of the criticism. What’s wrong with this picture?

    But then, the US is in a similar position. I think it is a similar position to the drunk looking for his keys – criticise those who will (or at least might) listen, not necessarily those who need it.

  9. If people wish to criticize Israeli campaign finance law in the same manner that they would criticize American campaign finance law, that’s appropriate.

    However, to throw in “murder” and “apartheid” reveals an hysterical and irrational bias on part of the critic. Much as a criticism of US campaign finance law intermingled with “the US is killing babies in Iraq,” etc. I’d bring up the trail of tears, and how the west was won, but Jews returning to their homeland and granting full civil rights to some Arabs that happen to be there is very different than European settlers committing genocide against a continent.

  10. Anonymous

    “So let me bring up another prominent example (in addition to the son of the prime minister being indicted): when the Supreme Court ordered the release of John Demjanjuk, who had been found innocent of the specific charges that had brought against him, they rebuffed the Attorney General, who had insisted (roughly — and almost certainly correctly) that Demjanjuk had certainly been guilty of something, as he had been a camp guard. Despite his terrible past and the remarkable sensitivity of the issue in Israel, the court did what the law demanded and released him, as he had not been found guilty of the specific charges against him and the law did not allow him to be subjected to double jeopardy.”

    Mr. Palmer,

    I’d be extremely interested to read your defense of the proposition: “Demjanjuk was “almost certainly” [your burden of proof] a war criminal worthy of prosecution in the 1980s.” You’ll remember he was stripped of his US citizenship and was plagued by Russian forgeries.

  11. Tom G. Palmer

    The anonymous commenter above has, first, put words in my mouth. I wrote that the Israeli Attorney General “had insisted (amost certainly correctly) that Demjanjuk had certainly been guilty of something, as he had been a camp guard,” not that he was “‘almost certainly’ a war criminal worthy of prosecution in the 1980s.” One can be guilty of crimes without being guilty of war crimes. (There is, moreover a difference between proof of guilt sufficient to satisfy the law, and ontological guilt, i.e., actual guilt, regardless of whether it is proven beyond a reasonable doubt. The Scottish legal system recognizes that possibility by allowing for a verdict of “not proven,” in addition to “guilty” and “not guilty.”)

    Second, a U.S. federal court found that Demjanjuk had lied about his past and gained admittance to the U.S. and U.S. citizenship on the basis of falsehoods. As the Judge Eric Clay wrote, “We find that the plaintiff, the United States of America, sustained its burden of proving through clear, unequivocal and convincing evidence that defendant, in fact, served as a guard at several Nazi training and concentration camps during World War II.”

    I am unaware of any Nazi camp guards who were not, as I wrote, “guilty of something.” That is not the same as being a war criminal. Nor is such a belief that a person is “guilty of something” (i.e., of some crime that one cannot specify) sufficient to justify holding or punishing someone; at least, it is not sufficient justification before a court of law in Israel.

  12. Demjanjuk was acquitted of being Ivan the Terrible (Ivan Marchenko), on the basis of reasonable doubt, after almost fifteen years of extensive and more than due process by the Israelis.

    There were no Russian forgeries of anything. The Russians did not create an elaborate conspiracy with Israel, a nation with which they had no diplomatic relations, to convict some random retired auto worker from Cleveland.

    Indeed, it was the downfall of the Soviet Union that allowed Demjanjuk access to Soviet archives that helped him create reasonable doubt in the Israeli court on appeal.

    Of course, those same captured Nazi papers placed Demjanjuk as an SS Wachman at Fleussenberg, Sobibor and Maidanek, after training in Trawniki. Demjanjuk challenged the authenticity of the Trawniki certificate but there was plenty of evidence supporting its authenticity.

    And there was much more than paperwork and endless testimony verifying its authenticity. There was significant eyewitness testimony. Not all of it from the victims!

    Demjanjuk himself admitted to being at Sobibor, albeit as a farmer, if you can believe that, in his immigration papers. And the name he gave immigration officials at one point was “Marchenko,” because, he said, it was a name that just popped into his head.

    The Israeli Supreme Court upheld the finding that Demjanjuk was a Nazi death camp guard. Acknowledging that this is what he was, the Israeli court stated that he was charged only with being a PARTICULAR Nazi death camp guard, and there being reasonable doubt of his SPECIFIC identity, he had to be released.

    Maintaining that Demjanjuk was NOT a Nazi is no better than common Holocaust denial. He was a piece of shit, and he deserved alot more than what the Israelis gave him, which was a whole lot more due process, warm meals, and humane living conditions than Demjanjuk afforded his victims.

  13. “Saddam”

    maybe you’d like to provide some links? You’ve offered nothing but obviously biased assertions.


    As a child growing up in Cleveland within walking distance of the Ford plant where Mr. Demjanjuk was employed, my family followed the case fairly obsessively — hence my continuing interest. I did not intend to put words in your mouth or to upset you, instead I was sincerely requesting the recommendation of some article or book that had established, in your mind, Mr. Demjanjuk’s guilt. I used the standard of “war crimes,” because it seems to me that anything less is most certainly not deserving of deportation forty years after the fact.

    Rest Assured Of My Best Intentions.


  14. Anonymous Nazi:

    You simply cannot deny the history of the Demjanjuk trial any more than you can deny he was one of your Nazi friends.

    There are plenty of links that go over, in detail, everything that I have recounted. I could re-post the entire internet here, it won’t mean anything to a Nazi in denial about history.

    All I am required to do here is address your claim that I have offered “biased assertions.”

    Re-read my post. These are not “biased assertions.” Word for word, they are dry recitation of facts. You can dispute that these facts are true, just like you can dispute that the Earth is round. But my saying the Earth is round is not a “biased assertion” that requires linking to a textbook.

    FACT — Demjanjunk was acquited on the basis of reasonable doubt after about 15 years of legal proceedings.

    FACT — it was established that he worked at a variety of notorious death camps.

    FACT — Demjanjuk claimed he was a farmer at Sobibor and used the name “marchenko” with US immigration authorities.

    and on and on…. but the basic point is,

    FACT — The Israelis concluded Demjanjuk was a Nazi death camp guard in the service of the SS, but let him go anyway because under their system of LAW, he could not be held under the charge he was “Ivan the Terrible.”

    That was Dr. Palmer’s point. That Israel, unlike, say, Germany under the leadership of your hero, is committed to the rule of law, such that it would release someone it considers an enemy of the state, based on due process.

    For what it is worth, the American courts reached the same conclusion about Demjanjuk. Following his release by Israel, he was re-tried in the United States, and had his citizenship revoked on the grounds that he lied to immigration authorities about his Nazi past. He is now facing deportation proceedings. This time, he will hopefully be hanged.