The benefit of striving for the ideal of “the rule of law” is that doing so imperfectly seals out human caprice and the unrestrained exercises of power that such caprice enables. But it does so at a cost, for striving for the ideal of “the rule of law” also imperfectly seals out the ability of unrestrained minds to make nuanced, context-sensitive decisions on a case-by-case basis. The lathe of history, spun with an eye to maximizing the benefit while minimizing the cost (though also with the bias of power resisting its own marginalization), has carved out a balance between relative objectivity (“blind justice”) and nuanced human judgment by allowing decisions in the interstices of established law to continually create new and finer filaments reaching into the endless inner-space of novel fact patterns.
Combined with this is the political game of testing how much ambiguity can be read into words and phrases given from above in the procedural flow-chart of legislating, executing, and adjudicating the law, and to what extent that real or imagined ambiguity can be exploited to stretch and fold the law to desired ends.
While I am about to describe the dynamical, evolving legal structure generated by these forces in static, structural terms, it’s important to remember that it is really an on-going process, one consisting of the movement and manipulation of human cognitions (see The Evolutionary Ecology of Social Institutions and The Fractal Geometry of Social Change for a more comprehensive description of this more general phenomenon). The specific sphere of human cognition most centrally implicated in the generation and evolution of the legal structure is that which is encompassed by policy analysis and legal reasoning, the latter representing finer filaments of the former. As I wrote in a law school final exam essay:
Legal reasoning is artificially constrained policy analysis. If ethical and political discourse is a ship adrift at sea, then legal reasoning is a ship that has dropped an anchor too light to keep it from drifting, but heavy enough to drag on the seabed and restrict it’s meanderings. Even when the anchor momentarily snags on the kelp of a particular law or legal theory, the ship of legal reasoning still swings in broad arcs defined by the length of the anchor line and the currents of the sea. Of course, the anchor itself, its weight and the length of the line, and the kelp upon which it snags, are shifting functions of the drifting ship rather than exogenous parameters, byproducts of generations of ethical and political reasoning which themselves drift with the judicial-political zeitgeist. And not one but many ships are adrift at once, exploring many areas of law, proliferating and occasionally pruning the thickening forest of kelp while becoming entangled in the growing vines. Legal reasoning, therefore, is a subset of policy analysis, with tentacles branching like veins throughout the universe of ethical and political discourse, according to a fractal geometry generated by an algorithm of “distinctive . . . argumentative techniques” and limiting rules.
The U.S. Constitution and the English common law, together, provide the broad framework within which this cognitive process takes place. The English common law (the accumulated law created by court decisions over the centuries) was adopted and continued by the new United States, the Constitution being the first codification of our own will carved into it. Gradually, Congress and state legislatures continued this process of codification within the universe defined by common law, enacting statutes which superceded the common law, sometimes merely codifying it and sometimes overriding and replacing it. These two levels (state and federal legislation) articulated in their own way, with states building on federal law, and federal law sometimes nationalizing widespread state laws.
Eventually, the complexity of the economy and our demands on government generated the need for finer filaments of codified law, a finer elaboration within the framework of statutory law. Congress (and, to a lesser extent, state legislatures) increasingly delegated essentially legislative responsibilities to executive branch administrative agencies, which promulgated regulations designed to specify more precisely how to define the broad statutes passed by Congress.
As can be seen from the above discussion, the legal structure in America is recursive, with the broad, general outlines of common law and the Constitution filled in by more massive and specific statutes, which in turn are filled in by yet more massive and specific regulations, all carving out codified law from the space historically occupied by common law. But this recursiveness occurs not just in enacted and codified law, but also in the evolution of common law itself, with court decisions occasionally encountering novel fact patterns not perfectly anticipated by existing common law, and, like occasional mutation creating new species, coming to decisions in response to these anomalies which generate new inner-spaces of common law.
This does not exist independently of the courts’ role in interpreting Constitutional, statutory, and regulatory law. Not even the fine filaments of regulatory law can anticipate all contingencies. Courts are left to decide cases in which, occasionally, the specific facts fall within the inevitable remaining gaps in Constitutional, statutory, regulatory, and common law. (In regulatory law, this occurs first in administrative courts with quasi-judicial functions, and only sometimes then end up in Article III judicial courts). This is the mechanism by which the finest filaments of our legal structure are forged.
One can discern in all of this the complementary fractal geometry of government, which exists to create (legislative branch), implement (executive branch), and interpret (judicial branch) the law. Our founding legal and governmental blueprint (the Constitution) provides the simple formula that, when iterated and reiterated over time, generates the branches and twigs and tiny veins of both government and law. The three branches of government exist at the federal, state, and local levels (the executive and legislative often being combined at the local level, particularly in county commissioners).
Congress is mirrored at the state level by state assemblies and at the local level by city councils, county commissioners, school boards, and transportation (and other special district) boards. The federal executive branch, headed by the president and including the Cabinet and the major executive branch agencies under the control of these secretaries (e.g., departments of state, interior, defense, etc.), as well as the proliferation of regulatory agencies created by Congress, is mirrored at the state level by the Governor’s office and state level administrative agencies, and at the local level by city mayors, county commissioners, school superintendents, and special district board chairmen. Similarly, federal courts (comprised of appellate circuits which in turn are comprised of federal districts) are mirrored, recursively, by state courts (comprised of state districts), county courts, and municipal courts, with specialized courts tucked into this structure. Quasi-governmental entities such as HOAs fill in some of the remaining gaps.
Inevitably, some of this is excessive, redundant, and wasteful. The underlying algorithm generating, continuously, this complex fractal of law and government doesn’t have an “off” switch, and is over-productive in part because of political pressures both to try to cover all bases and to appease all interests. And some of it is oppressive, imposing an excess of controls on individual freedoms, particularly at the micro-quasi-governmental levels (e.g., HOAs).
But the wastefulness and oppressiveness of this throbbing, organic entity tend to be exaggerated, and its utility underappreciated. Some of the redundancy is functional, providing checks and balances, and allowing for efficiencies of less cumbersome and expensive recourses as a first response, in order to siphon off the simpler issues and filter out all but those that need to continue up the hierarchy into more elaborate and involved processes, leaving each issue addressed at the level most appropriate for it. And rules, in reality, can liberate as well as oppress, protecting rights and coordinating our coexstence without requiring us to spend all of our time and energy ordering our coexistence from scratch in an endless trap of institutional amnesia.
The massive size of bills drafted by Congress is as much a function of the complexity of the world in which it is legislating as of the political processes that cause accretions of “pork” to glob on to every piece of legislation. Some of that bulk is due to Congress’ healthy desire to cede as little power as possible to the executive branch, for once enacted legislation leaves Congress and enters the administrative infrastructure, Congress loses control of it. The more gaps Congress leaves to be filled in, the more those administrative agencies end up writing the law, and rewriting it in accord with successive presidents’ ideologies. In other words, even while our laws are a messy product of an imperfect world, they are amazingly adapted to the complex challenges of that complex world even so.
What’s left over after Congress, state legislatures, and local governments carve their enacted law into the space of haphazardly evolved common law is the inner-universe of the unforeseeable, to which the organs of legal production must constantly respond and adapt. This is the function, first, of the judicial branch, at all levels, addressing, on the margins, unique circumstances unanticipated by both existing common law, and existing federal (constitutional, statutory and regulatory), state (constitutional, statutory and regulatory), or local law.
When existing law cannot be interpreted in service to reason, the courts generally must submit to the unreasonable, while, in their written opinions, sending a message to legislators that there is a defect requiring their attention. Depending on the egregiousness of the defect and the political obstacles involved, the defect may or may not be remedied. This process can certainly be improved upon, lubricated and rationalized. While the lathe of time places a constant pressure in favor of doing so, the institutionalized resistance to that pressure can be quite obstinate.
All of this articulates with the processes described in Adaptation & Social Systemic Fluidity, The Evolutionary Ecology of Social Institutions, The Fractal Geometry of Social Change, The Evolutionary Ecology of Human Technology, and The Politics of Consciousness. The waxing and waning technologies, social institutions, and ideological beliefs reverberating through the social field create the environment within which the above described processes occur and to which they respond, and the above described processes, in turn, further modify that environment and, by doing so, affect the complementary processes of technological, ideological, and social institutional evolution. The ebbs and flows, expansions and contractions, of all aspects of the social institutional landscape, including technologies, ideologies, religions, norms, rituals, beliefs, and laws, are intertwined and mutually formative.
There are many portals of human intentionality into this system. In fact, it is comprised predominantly of human intentionality. Every act by every person either reproduces or slightly modifies some aspect of this dynamo. Human will and ingenuity insinuates itself in particularly salient ways in several fields, such as academe, writing (both fiction and non-fiction), and engineering. But, of all of these, there is something particularly important about politics, about how we exercise our will in the on-going refinement of the formal rules by which we intentionally provide a context for this all-encompassing human enterprise, a context which determines how robustly our imaginations are activated and their products realized. For it is through the political process that we consciously determine how well or poorly we manage to liberate The Genius of the Many, which is the most valuable of all human and natural resources.