Operationalizing Law: Principles for Preventing Arbitrary Power
How to Make Law Operational
To prevent arbitrary power, a set of principles must be established:
1. Trial
Justice limits the demands of the sovereign on individuals. Rules are established, and as long as they are not broken, individuals are free to act as they wish. If a rule is broken, there must be protection against arbitrary judgment in criminal law.
A trial involves a judge, jury, and triadic structure, with the accused, defense, and prosecution represented.
Equality between the accused and the judge is crucial to prevent arbitrary judgment. Power over a citizen and the ability to accuse them without equal footing allows for unlimited arbitrary judgment.
The presumption of innocence until proven guilty and the burden of proof protect against arbitrary judgment.
2. Rule-Bound Judgments
Even with equality between the accuser and the accused, arbitrary judgment can occur if the judge makes judgments that are not rule-bound.
Luther believed rulers should follow both the letter and spirit of the law, while Beccaria opposed following the spirit of the law.
Judges must follow the laws and not make their own judgments. Following the spirit of the law is tyrannical.
Judges should decide syllogistically, using a three-step process:
- What does the rule say?
- What are the facts of the situation?
- Do the facts constitute a violation of the law?
Syllogistic reasoning prevents judges from making their own decisions and focuses on the facts of the situation, not the moral character of the accused.