The United States was founded on a written Constitution. The fact that this document was designed to be the highest law of the land was extremely significant. It put into place the rules by which the country was to be governed, and it restricted the means by which those with power could abuse that power. What the people were responding to was the nature of law in Europe. In most European countries, the decree of the monarch was the law. Granted, the monarchs were severely limited by traditions, representative bodies, and social structures; but in principle, no law could hold the King responsible for his actions.
In the United States, it was important to have the laws clearly spelled out and inviolable. No one was above the law. Everyone was subject to it. The system of checks and balances was included specifically to prescribe the laws for the people at the top.
But every set of laws, no matter how well written, is incomplete. It cannot take into consideration every method by which people can take advantage of others. For every new law enacted to clamp down on damaging or deceitful activity, other new ways can be invented. The laws of the United States relied heavily on the character of the people. The laws specified the minimum standards of behavior, not the expectations of how people will behave outside of the law.
Over the last two centuries, the internal constraints on bad behavior have eroded. Social pressure and expectations had been the primary means to maintain decency. But we have slowly freed ourselves from those norms, and in their stead has come an increasingly bloated set of laws. What has developed is a kind of Phariseeism. We have come to think more and more that whatever is legal is right. The rule of law then becomes a game. Instead of a fixture designed to prevent the injustice of the crown or the aristocracy, the rule of law has become a game in which winners and losers are chosen not according to justice but according to cleverness and availability of resources. Clearly, there have always been those who will manipulate and steer the law to their will. But the prevalence of that attitude has increased.
This trend can easily be seen in the business world. As an example, there was a practice in Wall Street in which traders had figured out how to intercept “buy and sell” orders milliseconds prior to an exchange. Because of their physical proximity and the superior speed of their internet connection, traders could place an order microseconds prior to the intercepted transaction. By this means, they were able to legally skim profits off all transactions they intercepted. This was clearly a fraudulent activity. However, since the practice was new and undetected, it was not yet illegal and thus considered fair game.
Another obvious example of legalism is in the press, as I mentioned in a part one of this series. The press has a great deal of freedom to publish as it desires. Because of the nature of the laws, outrageous injustices can and are perpetrated by the press, all within a strictly legal framework. Individuals lacking internal constraints feel justified in their actions, especially if it brings greater income or prestige.
The legal system itself is a perfect example of the legalism that has developed. I am not directly involved with the law system, so my observations are perhaps not the most accurate. However, it sure seems as if justice takes second place to technical considerations. For instance, if a suspect confesses without the Miranda rights being first administered, the suspect can be acquitted of the charge.
The cumulative effect of legalism is to discourage internal moral constraint. To the extent that the law is seen as the criterion for right and wrong, immoral but legal behavior becomes normalized, accepted. This sort of cultural attitude is toxic to our souls. We need to encourage each other to take morality seriously. We need to have standards other than just the law. The rule of law is good, so long as it does not replace a morality based on a transcendent reality.