Gentlemen and the Rule of Law

In the West, the "Rule of Law" is an almost untarnished ideal, while the alternative "Rule of Men," is almost synonymous with tyranny. After, the Bush Administration, it is easy to see why this is the case.

Historically, Chinese political philosophy has had almost the opposite bias. Rule by laws has been associated with lawyeristic tangles and the inherent incapacity of written laws to provide just resolutions of every situation. Meanwhile the Chinese, buttressed by a civil service selected by examinations on Confucian philosophy, were historically more bullish on the possibility of rule by men who come close to Plato's philosopher-king ideal.

Perhaps the closest Western civilization has come to the notion of a ruling class of virtuous people has been the notion of the Gentleman, in its late Victorian/military justice sense of conducting themselves in positions of authority honorably, who adhere to the highest standards of civility exemplified in sports like cricket. At one point in time, this was also a prevailing sense within the community of lawyers admitted to the bar, although this sense is fading.

The organized bar has struggled with this decline. Non-binding codes of civility have been promulgated, and have largely been ignored. Judges have developed a distaste for refereeing instances of minor misconduct in litigation that takes place outside their courtrooms. Social stigma has grown ineffective in most specialties within the community of lawyers as it has grown too large to informally regulate itself in face to face interactions of people who routinely encounter each other in their work.

As a result, we see the kinds of conduct we see in a recent defense of a police misconduct case (via Think Outside The Cage) against the city of Denver where the city has asserted defenses that while factual in nature (and hence within the province of a jury), and not utterly without a place in the context of the incident involved, are quite unreasonable, given the facts, and in light of the way the city and prosecutor's office have already evaluated the situation and addressed it. (The officer is off the force, and faces felony criminal charges from the incident.)

I can understand perfectly well why the City's attorneys have done what they did, although throwing the officer under the bus, a stance contemplated by the civil rights laws, might have made more sense. But how do we get to a place where there is more of an incentive to distinguish between strong and merely colorable claims? How can we encourage those who make the legal system work gravitate towards reasonableness?

I don't think that the rule of law and personal virtue of exclusive, indeed, they are necessary to reinforce each other. But right now, rule of law is carrying too much of the burden and we have devoted too little effort to building the virtue of those who carry it out, so that difficult questions on the fringes of the law cease to come up at all. Put another way, we need more Gentlemen (and more Ladies), if we are to make our Anglo-American legal system to work well.