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Why we need to ‘give the Devil the benefit of law’

Written by William C. Duncan

September 27, 2023

​Richard Rich (1496-1567) was a prominent British royal official who played significant roles in the reigns of four monarchs, beginning with Henry VIII. He participated in religious persecutions and helped use the rack on the only woman to be tortured in the Tower of London.

Rich is also a character in Robert Bolt’s play A Man for All Seasons. In the play, the disreputable Rich seeks a position of prominence from Thomas More, who rebuffs him. In a powerful scene, More’s future son-in-law urges More to arrest Rich. More says that Rich has done nothing illegal, but the son-in-law objects that this is only a technicality, since Rich is morally bad.

William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I’d cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

This is a classic illustration of the rule of law made more vivid by the context of the play – assertions of arbitrary ambition by Henry VIII and his cronies that resulted in More’s death. The conflict illustrates the dichotomy in John Adams’ classic phrase – “government of laws and not of men” – highlighted in last week’s post.

More’s assertion is so powerful because it directly addresses a continuing challenge to our allegiance to the rule of law. Historically, there has been no lack of situations in which some – or even many – officials and citizens believe that established laws may need to be set aside for a compelling purpose. These include unusual circumstances (like President Harry Truman’s seizure of steel mills during the Korean War) or a “higher” principle (like personal autonomy).

In recent years, the temptation to make an exception to legal principles has had bipartisan appeal. It is easy to dismiss some justifications for cutting legal corners (like a king’s marital ambitions), but sometimes the justifications can seem compelling, such as fear that an election could be “stolen,” or concerns over gun violence.

The rule of law is informed by a long view. The framers of the U.S. Constitution knew there would be no shortage of apparently compelling situations. But they also knew that with time, emergencies can seem less pressing, and the exceptions they seem to justify can be recognized as embarrassing or morally reprehensible, like the internment of American citizens of Japanese descent during World War II.

The Founders’ broad perspective included a recognition that once an exception is accepted, others are likely to follow – and the next one could be made by a political adversary for unspoken political reasons. In the early 19th century, some in the Northeastern states talked about secession out of concern that the Southern states were dragging the United States into war on behalf of France. A few decades later, fear of threats to the South and its practice of slavery were not only discussed, but acted on.

The framers also knew that exceptions can have serious, perhaps unintended, consequences. It appears that a majority of the U.S. Supreme Court, in its 1857 Dred Scott ruling, believed it was justified in ignoring the Constitution and making up new rules denying African-Americans citizenship, along with reversing a legislative compromise over the spread of slavery in the territories. That decision is now recognized as likely the worst Supreme Court decision in the country’s history.

Sometimes people suggest that adherence to the law will prevent the correction of real wrongs. Abraham Lincoln’s response to the Dred Scott decision is instructive: Although he knew the decision was wrong, he respected the court and promoted the self-correcting mechanisms of constitutional law.

The Constitution includes a number of these: The binding constitutional text allows citizens to identify government mistakes; separation of powers and checks and balances allow branches of government to limit or counteract damages done by others; and Article V of the Constitution allows for amendments when necessary.

We need the rule of law for many reasons, but this is one of the most important: The temptation to jettison rules that crimp our desires or plans, whether noble or malicious, will not disappear. In those times, a restraining influence can prevent short-sighted actions today that will destroy our rights and well-being tomorrow.

 

Insights: analysis, research, and informed commentary from Sutherland experts. For elected officials and public policy professionals.

  • Situations that seem to justify ignoring established law for a “higher purpose” always come up.
  • The framers of the U.S. Constitution tried to enshrine the principle of the rule of law – because while these temptations to ignore law can be fleeting, they are hard to confine to only one circumstance; even noble exceptions can be used by bad actors to inflict serious harm on others.
  • The rule of law does not freeze bad policy in place; it provides for safe and orderly mechanisms to correct injustice and make needed changes.
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