by Randy E. Barnett | an
excerpt from... Chapter Twelve In Chapter 10, we saw how using power to address the compliance problem raises the costs of errors. As with the general discussion of the knowledge problem in Part 1, the analysis of enforcement error in Chapter 10 assumed the good faith of those charged with enforcement. In this chapter, like the discussion of the problem of interest in Part II, I now relax this assumption and consider the grave problems that are presented when the power of enforcement is made to serve the interests of the enforcers rather than of justice. We are then faced with the age-old question of "who guards the guardians?" This is the problem of enforcement abuse:
The problem of enforcement abuse is so obvious and well-recognized that there is little reason to dwell on its description. We all know that power can be abused so that it is made to serve the interests of those who wield it and their favorites, rather then serve the purpose for which such power was initially granted: to serve impartially the ends of justice. The way the liberal conception of justice and the rule of law ameliorate this problem was laid out in my discussion of the partiality problem in Chapter 7. The very existence of discernible principles of justice communicated by the rule of law make it more difficult to serve one's interest at the expense of others. Violating these publically accessible precepts provides a warning sensor that enforcement abuse may be taking place, a prerequisite to taking action against offending authorities. The right of several property compartmentalizes partiality and, to the extent several property rights are respected, law enforcement agencies who abuse their power will be faced with consumers who have resources that may be used to resist this abuse. A similar sentiment motivated the drafting of the Second Amendment to the United States Constitution protecting "the right of the people to keep and bear arms."[1] Such a right was thought necessary to enable people to exercise their right of self-defense against both individuals and governments that abuse their power. This amendment was not thought to create a right of resistance-such a right was considered a natural one and needed no such recognition. Rather, the provision was thought necessary to help preserve the means of resistance to oppression should resistance ever become necessary.[2] By the same token, a people in rightful control of resources are in a position to resist the use of power when violations of the rule of law reveal it to have been abused. Perhaps of greatest importance is that the rights that define the liberal conception of justice be recognized as rights and not mere goals or interests. We have already seen how the failure to recognize a right to restitution has condemned restitution schemes to marginality. When the "interest" of a victim to receive restitution is "balanced" against the "interest" of the public to punish, it is the victim's interests that are inevitably sacrificed. Reducing rights to mere "interests" which must then be balanced against other "competing" social goals, enables those wielding power to conceal their partiality with the veneer of the highly indeterminate "greater" good. Similarly, considering several property, freedom of contract, the right of first possession, or the right of selfdefense to be anything less than rights, opens them up to infringement by persons to whom the power of enforcement has been delegated. These persons may then much more easily abuse their powers to pursue their own interests or those of some partial "interest group," at the expense of the interests of those whose rights are violated. These are all reasons why the concept of natural rights was formulated in the first place. Yet while recognizing the rights provided by the
liberal conception of justice and the principles of legality provided
by the rule of law may be necessary to cabin the abuse of power, this
is not sufficient to handle the problem of enforcement abuse. In practice,
these rights and principles, even when formally recognized, can be and
have been overwhelmed by the institutional structure in which they are
applied. It is the institutional dimension of the problem that I consider
in the balance of this chapter. Then, in Chapter 13, 1 explain how the
rights of several property and freedom of contract yield two constitutional
principles that should be recognized and respected if we are to constrain
effectively enforcement abuse.
[1] Constitution
of the United States, amend. 11. The amendment reads in its entirety:
"A well regulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be infringed."
Return [2]That this and not some intention to protect state
militias was the purpose of the Second Amendment has been established
beyond peradventure by numerous constitutional scholars of all ideological
stripes. This body of research is summarized in Randy E. Barnett and Don
B. Kates, Under Fire: The New Consensus on the Second Amendment,
vol. 45 (1996), pp. 1139-59..Return
 
|
