Garri Hendell: There Is More to How Rules Work

In the United States, our diversity of opinions, backgrounds, and values makes us prize our common rules.

In fact, one may argue that what it means to be American is, more or less, defined by our agreed-upon common rule sets. This rule set is, at its apex, embodied in our Constitution.

However, this leads us into a bit of a trap, insofar as we have come to believe that, as a necessary corollary of us being defined by our agreed-upon rules, if some action falls within the rules, it must be OK. Somehow, action within the rules has become synonymous with good. Acting within the rules is not only permitted, but any action within the rules can legitimately be part of the American project, and therefore might in some way be OK. What we overlook is that the explicit part of the rules—what they actually say—is only one aspect of them. An equally important part of the rules is the implicit purpose which animates them. Their spirit.

Another way to say this is that there is no set of rules so perfect that they cannot be compromised from within by a bad actor who sets out to do so.

The fact is that rules only work if they are applied in accordance with the spirit which animates them; in such a way as to facilitate their ultimate purpose. A bad faith application of the rules, even if done in accordance with their strict terms, is not compliance in any real sense.

In civil litigation, we call this the “abuse of process”. This concept applies when a litigant does things he or she is perfectly entitled to do (file a complaint, ask for additional time to prepare a pleading, lodge an objection) but does so in a way or for a purpose that is explicitly at odds with the purpose for which the rules exist. In the case of civil litigation that could be to unreasonably delay the proceeding to obtain some advantage, to frustrate the resolution of the proceeding by the court, or to simply jam up the proceedings or the mechanisms of the court to an extent that the process itself becomes unworkable. In civil proceedings, the court has the authority to address such abuse by denying the request or, in extreme cases, restricting or denying the bad faith litigant access to the legal process itself.

In my civilian work in law enforcement oversight, we see this in the pretextual use of traffic violations to investigate potentially more consequential offenses. Every time someone is pulled over for “failing to use their turn signal” when the investigating officer has no interest in writing a traffic citation knows this to be what it is—a disingenuous excuse to use a rule in a manner for which it was never intended. It smacks of illegitimacy, and people resent it.

In the military, this was “quibbling”. In my experience, this concept was most powerfully demonstrated in officer candidate school, where enlisted members are prepared to transition into officer leadership roles (OCS is one of several commissioning sources for US military officers, in addition to ROTC, military and service academies, etc). When officer candidates attempted to excuse bad behavior by resorting to some questionable interpretation of the rules, the response from the cadre was “stop quibbling”. This was simply the cadre’s way of saying that compliance with the letter of the rules is no excuse if you are in violation of their spirit. You can’t play that game and expect to lead America’s sons and daughters into combat.

In the political sphere, recourse to the law and to democratic processes for nefarious ends can be known as “the dictatorship of law”. Modern and historical examples abound, but include the National Socialists’ use of democratic norms to subvert German democracy in the 1930s to Vladimir Putin’s use of the mechanisms of the Russian state to set the stage for his present-day autocratic rule, to Viktor Orban’s Hungary where the mechanisms of the state have been stripped of any controls except for some residual and highly controlled democratic legitimacy.

Our shared life was never meant to be a game of gotcha, where the rules by which we have agreed to govern ourselves become a fulcrum through which leverage is exerted by bad faith actors. Instead, a shared commitment to the purposes and goals that the rules were designed to promote is required. This requires leaders of character.

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Garri Benjamin Hendell is a member of the Society for the Rule of Law.