Recent protests in Egypt are a sign of hope, because they are about such a central issue: the independence of the judiciary. As one Egyptian figure was quoted in the New York Times (may require simple registration),
“We cannot aspire to have reform without an independent judiciary,” said Ghada Shahbandar, leader of an electoral monitoring group that has followed the judges’ demands closely. “It is the first and most important block in the reform process.”
The success of liberal/libertarian reform of all sorts is crucially dependent on the functioning of the judiciary. Moreover, it is important to incorporate into the definition of democracy, not merely periodic elections based on some sort of majority voting, but also the separation and limitation of powers. And the most important element in a system of separated powers is the independent judiciary. As Mancur Olson put it,
“Interestingly, the conditions that are needed to have the individual rights needed for maximum economic development are exactly the same conditions that are needed to have a lasting democracy. Obviously, a democracy is not viable if individuals, including the leading rivals of the administration in power, lack the rights to free speech and to security for their property and contracts or if the rule of law is not followed even when it calls for the current administration to leave office. Thus the same court system, independent judiciary, and respect for law and individual rights that are needed for a lasting democracy are also required for security of property and contract rights.” *
*Mancur Olson, “Dictatorship, Democracy, and Development,” American Political Science Review, Vol. 8, No. 3 (September 1993), 567-76, 572
There’s a good blog that has been covering Egypt’s judicial independence movement in detail, as well as other Egyptian issues:
“Freedom for Egyptians”
Worth a look for anyone interested in Egypt.
Somehow the link was deleted on the above post
“Freedom for Egyptians” is found at
[http://freedomforegyptians.blogspot.com/]
You’ll also find a link to it on my blog.
sending a related post on Egyptian politics;
http://truckandbarter.com/mt/archives/2006/04/the_appeal_of_b.html
The Appeal of Bin Laden and Al-Qaida
sending a related post on Egyptian politics;
http://truckandbarter.com/mt/archives/2006/04/the_appeal_of_b.html
The Appeal of Bin Laden and Al-Qaida
An independent judiciary is something of a paradox. If the Men with Guns (the executive) are compelled to abide by the decisions of the judiciary then they essentially work for the judiciary. If the Men with Guns aren’t somehow compelled to abide by the decisions of the judiciary (as is increasingly the case in the US) then the judiciary becomes increasingly irrelevant. IMHO the executive is really the branch that matters in the final analysis: who wields the guns, who do they listen to, and why?
I’ve become less and less impressed with “Rule of Law” of late. IMHO, it largely serves to fool the weak masses into believing that they and the powerful play by the same set of rules. Respect for the “Rule of Law” by the masses also gives tremendous power to those few who are clever and skilled in its manipulation. These clever few have further enhanced their power by turning the law into vast mountains of regulation and legal interpretation. Respect for the “Rule of Law” also serves to diffuse and disperse opposition to the collossal theft, extortion, and kidnapping done in its name. Large scale resistance to State tyranny requires that obedience to the “laws” of the state be ended.
TJ — I don’t understand at all. If the judiciary is independent of the executive (and legislature), this doesn’t mean that the executive (nor legislature) works for the judiciary, in either a de jure or de facto sense.
Your argument seems to simply be that a state, and the agents who populate it, are a monlith, with one common set of interests. This may be true of some states, but is demonstrably false in the case of others.
Even a perfect Anarcho-Capitalist system will not function without respect for Rule of Law. Much of what you are labeling “rule of law” is either not rule of law, or else is examples of bad law. (The argument for rule of law was *never* that any old law will do.) Your criticism of Rule of Law is no more fair than critiquing anarcho-capitalism by pointing to the lawlessness that governs places like Somalia.
>>TJ — I don’t understand at all. If the judiciary is independent of the executive (and legislature), this doesn’t mean that the executive (nor legislature) works for the judiciary, in either a de jure or de facto sense.
Let’s look at how the process is “supposed” to work under ideal circumstances. The Secret Band of Robbers and Murderers elect the legislature, which then passes some law. Someone supposedly violates that law. The police arrest that person. The judge/jury decide whether the person is “guilty”. Then the police carry out the sentence.
If the police (backed by the army if necessary) don’t carry out the sentence (or arrest the person in the first place), the judiciary (and legislature’s) decisions don’t count for much. This isn’t an all-or-nothing thing, of course — there exist many levels of “selective enforcement”. Similarly, it’s possible for some “separation of power” to occur, whereby the executive seems to obey the legislature and judiciary while at the same time retaining some influence over who actually gets to be a judge or legislator.
IMHO such “separation of powers” schemes are unstable. The different branches find ways to collude to further their mutual interests, and the ultimate power, the foundation upon which the rest of the State edifice rests, is the gun — and the executive controls the gun. The illusion that this is not so has been wearing thin in the US recently, as the executive has openly exerted it’s power to make war, create regulation by executive order, imprison people without recourse to the judiciary, engage in bulk wiretapping of civilian communications, etc, etc. What opposition there has been from the other branches of government and the general population has amounted to so much feeble bleating — and it will likely continue to be so.
>>Much of what you are labeling “rule of law” is either not rule of law, or else is examples of bad law.
Under “Rule of Law” the “bad law” will be obeyed regardless of its badness, and the cops and judges will enforce it.
The obvious example would be the Kelo decision: when the developers come to seize the homes obtained through their collusion with the State, elementary principles of justice would seem to indicate that the original homeowners should simply kill the thieves as they would any common robber. Were they to do this, the police would intervene on the side of the thieves, the homeowners would be crushed, and the general population would mumble about “Rule of Law” and how the homeowners failed to respect the “process” and the “system”.
Similarly the police and judges consider themselves obligated to arrest and incarcerate drug users for long periods, in spite of their personal feelings on the matter, because to do otherwise would go against the “Rule of Law”. These are but a few examples where Rule of Law causes men to delegate responsibility for making moral decisions to a written code, ultimately written by and for the bureaucracy.
>>Your criticism of Rule of Law is no more fair than critiquing anarcho-capitalism by pointing to the lawlessness that governs places like Somalia.
The horrible things that happened under Communism weren’t part of the “plan”. Marx and Engels never wrote about the need to exterminate tens of millions of people. We don’t let Marx and Engles off the hook, however, and simply blame the “imperfect implementation” of Stalin and Mao. The reason is that the adoption of Marx’s principles created a situation which allowed Stalin, et. al. to move in. My claim is similar: advocates of Rule of Law don’t really intend for Rule of Law to be synonymous with Unquestioned Obedience to “Legal” Authority, but in practice that’s how it eventually ends up.
TJ: I think you certainly correct on the instability issue. This was a common theme among the founding fathers of the U.S., of course. But instability is a feature of *all* possible social arrangements. (This is one of the fundamental flaws of minarchism, but it’s also a flaw of anarchism.)
The idea of competing branches of government providing checks and balances does work, to varying degrees, as you yourself recognize above in your reply. It is pretty clear that some arrangements of government work better in this regard than others. An independent judiciary is particularly important in this regard… if people are hauled into court, it would be preferable that it be a court that generally follows reasonable rules of evidence, law, etc., and ignores outside pressures, than one in which the executive branch can tell the court what the outcome will be w/o regard for facts and law.
As for the dangerous slide from Rule of Law to Unquestioned Obedience to Authorities…that’s what the “eternal vigilance” being the price of liberty is about. You’re referring to a flaw in our behavior, not a flaw in the idea of Rule of Law… unless you have some alternative not subject to such slide.