From Nebuchadnezzar to Gaius and Justinian, to the Napoleonic Code, to English Common Law, Germanic Codification, and all the way to present day U.S. jurisprudence, The Law is now experiencing another “epoch age”. Questions about its purpose, source of legitimacy and structure of accountability will shape its future. At this moment, however, Authority is the largest challenge to the rule of law.
And when I say “Authority” I mean people as opposed to laws. One of the guarantees of Order is a lack of arbitrary and capricious enforcement of The Law. Equality under The Law was certainly one of the original precepts guiding the Framers of the Constitution.
U.S. Jurisprudence dominates the world, providing security and order for millions of business transactions. It serves as the “interpreter of last resort” with regard to most of the important laws on the planet. It also serves as the repository of “Order” for much of Western Civilization. The majority of business transactions on the planet takes place in U.S. currency and are guided by U.S. law. U.S. military personnel protect the transport routes.
With this awesome influence and power one would expect a symmetrical structure of accountability and responsibility, but unfortunately this is not the case. Instead, we see a larger build-out of unrequited power by the Executive, with a legislative and Judiciary taking lesser roles.
But The Law’s ability to enhance private lives has taken on enormous new powers due to technological improvement and information technology.
So I anticipate The Law becoming more arbitrary and capricious in the future, as it is now even more inextricably linked to the political process. The sheer volume of statutes, coupled with the futility of codification (due to a “balance of interests approach utilized by the SCOTUS and exploited by the Executive) provides a rich environment for political abuse and expansion of power.
One of the specific instances involves the current imbroglio over Argentinian Bonds issued under U.S. Law. Several vulture funds have pounced and are attempting to attach assets or cash flows in order to satisfy their presumed status as “parri passu” non-subordinated debt holders.
Of particular interest to me is an Amicus brief filed by the State Department which introduces a balance of interests approach and seeks to include measures of these balances that satisfy their prerogative. Specifically, it cites a “Foreign Policy” interest that, if satisfied, would effectively bring all international contracts under the auspices of the State Department (quite the power grab for the Executive)
I expect this process to replicate itself throughout the world. No force on earth moves opinion like economics (aggregated self-interest) At this very moment, anarchists and communists are attempting to assuage the populace of Greece that they have been bamboozled by usual coquetries of capitalist pigs and collaborative politicians. Populism gives easy, packaged and replicable answers to problems. Its simply the shape of the object they pick…the form does not change.
And so, with the Grand design experiments of Eurocrats proving once more that a nation creation is futile (I have argued privately that the Euro experiment mirrors that of The Berlin Conference…the artificial boundaries that “created” modern Africa have failed in a similar fashion to the artificial attractors that “united” Europe), we will see much more aggressive behavior concerning atavistic nationalistic concerns. For example, the Falkland Islands are certainly at play. This will be about assertion over any issues that are perceived as holding some national character.
In challenging times, men fill the resultant vacuums of power. We have seen that this is a dangerous environment for The Law and its processes. And one must observe that if The Law is only followed and enforced during times of calm, and jettisoned in times of calamity, what purpose does it really serve, and to whom’s benefit?