Those who follow rules
May 30, 2017 § 154 Comments
Authority is conserved, so the political possibilities in resolving actual controverted cases aren’t “more freedom” versus “less freedom”. The range of real political possibility is between authority exercised publicly and accountably by particular men, and authority exercised sociopathically without personal responsibility behind a wall of mechanical bureaucratic procedures and ‘zero tolerance’ rules (a situation often labeled ‘the rule of law’, but positivistically excluding the particular judgment which justice requires).
Modern people are always looking for ways to substitute rules and procedures for the authority of flesh and blood men. Folks who deny the reality of authority prefer to be an insignificant mechanical component in a vast impersonal rule-executing machine rather than a subject expected to doff his cap to the king. This necessarily results in unjust and sociopathic exercise of authority.
In this post I will argue that substituting rules and procedures for human judgment and authority is necessarily unjust for what is called the “exclusionary rule” in American jurisprudence.
The “exclusionary rule” requires criminal courts in the US to always suppress evidence of a crime when improper procedures were followed in the collection of that evidence. (Pay special attention to the use of always and some/sometimes in this argument).
This rule necessarily results in some cases resolving to an unjust result; in particular in those cases where good judgment should take procedurally tainted evidence into account. This injustice obtains against both the victims of crime and the common good of the community.
A rule which guarantees some unjust results is an intrinsically unjust rule. Note that it isn’t necessary for the rule to always produce an unjust result for this to be the case: it is only necessary for the rule to sometimes produce an unjust result, because the rule is supposed to apply always.
Therefore the exclusionary rule is intrinsically unjust.