by Dr. David Moskowitz
(An earlier version appeared in the Daily Local News, 9/3/20, referencing a 9/1/20 opinion piece by former Chesco sheriff Carolyn Welsh.)
Carolyn Welsh, former Chester County sheriff, has stated that a civilized society needs law and order, and she is correct, but only presents part of the issue.
As H.L.A. Hart points out in The Concept of Law, the most celebrated book in legal philosophy of the past 100 years, the rule of law exists if two requirements are met: the first is general obedience of the law by the citizens. Welsh is right that rioting, burning properties and looting do not represent the rule of law. There is, however, a second requirement. To have the rule of law, you also need general compliance with the applicable legal norms that apply to governmental officials.
Let me cite one obvious example of the lack of law and order. During the days of Jim Crow, when African Americans were lynched by vigilante mobs and the perpetrators of these crimes (and they were crimes then and now) were not prosecuted, there was no law and order.
Similarly, when an unarmed citizen is shot in the back seven times by a police officer, there is no way that this can be called law and order. Armed militia caravans, encouraged by the President, firing paint guns and tossing pepper spray on peaceful demonstrators, are not law and order.
Welsh contends that “one political party has abandoned the rule of law.” She is correct, but the political party in question is the Republican Party. President Trump has stomped on the constitutional norms (refusing to respond to lawful subpoenas; ordering the DOJ to investigate enemies; seeking and receiving electoral help from Russia). He has claimed that one of his supporters who shot 3 people in Kenosha was acting in self-defense, with no proof and in conflict with the law prohibiting him from carrying the weapon that he used to kill and wound others.
As Joe Biden has declared, rioting is wrong, and that is one-half of the rule of law. But, the other half, the other necessary requirement for there to be a rule of law, is for governmental officials to themselves obey the law. We have never had a president, not even Richard Nixon, who disregarded the rule of law as much as Donald Trump. We should restore the rule of law by electing a new president, someone who respects the law.