Playing by the Rules: From Magna Carta to Banana Ball
“Commitment to the rule of law provides a basic assurance that people can know what to expect, whether what they do is popular or unpopular at the time.”
— U.S. Supreme Court Justice Sandra Day O’Connor
“There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”
— U.S. Supreme Court Justice Felix Frankfurter
KCBA’s 2025 Bench-Bar Conference is fast approaching, a wonderful annual event that I hope members plan to attend. It is a chance to gather and learn about a wide range of topics relating to our judicial system and the practice of law in our state and federal courts. This year you will have the chance to hear from the Litigator’s Roundtable about the use of AI, trial readiness, and sanctions orders. We will have a Tribal Law update from the Seattle University Northwest Center for Indigenous Law. None other than Washington Supreme Court Chief Justice Debra Stephens will provide a Supreme Court update. A panel of distinguished federal district court and Washington state court judges will talk about our federal courts, state courts, and courts of limited jurisdiction. The program will conclude with a session about ethics and the rule of law.
In fact, this year’s entire Bench-Bar Conference theme is the rule of law. This important subject has been on my mind, and I expect many lawyers’ minds, a great deal recently. It is a concept that we all feel we understand intuitively but rarely explore outside of the academic context.
The “rule” in “rule of law” can be read as either a noun or a verb. Laws are “rules” of society; they are mandates that everyone is supposed to recognize and obey. But “to rule” refers to the active processes of governing.
The concept of a “ruler” is colloquially understood as a person who executes the laws both by providing services mandated by law, and by taking action against those who do not follow the proscriptive laws designed to protect either individuals or society as a whole from harm.
In England before the year 1215, the “ruler” was a single individual who decided what ancient laws and customs (today we would call them “norms”) he would recognize and which he wouldn’t. When King John violated a series of these laws and norms, a group of barons who supported the king in exchange for estates of land demanded that he sign a charter to recognize their rights. The resulting Magna Carta, or “Great Charter,” limited the Crown’s power and guaranteed certain protections, including that the life, liberty, or property of free subjects of the king could not be taken away arbitrarily. Instead, the lawful judgment of the subject’s peers or the law of the land had to be followed.
Under the U.S. tripartite constitutional governing structure, ruling is a collaborative effort. The executive, legislative, and judicial branches are designed to rule in concert, identifying the need for laws and writing them, putting them into effect, and adjudicating disputes over whether the laws have been followed.
However, simply having a constitutional system of governance, with statutes, court precedent, agencies, and the like, does not magically result in the rule of law. The law does not and cannot “rule” in a literal sense. Whether the law governs our society, rather than the arbitrary exercise of an individual’s sheer power, ultimately depends on the system’s ability to prevent or remedy a violation of those rules.
In short, the rule of law is not what is written, nor is it what any one person or group says it is in the abstract. It is the interpretation, application, and adjudication of legal rules in the real world.
I recently had the great pleasure of going to see the Savannah Bananas play at T-Mobile Park. (I promise this is going somewhere.) For the uninitiated, the Savannah Bananas are a novelty baseball team in a league with three other teams whose antics — such as pitchers on stilts, coordinated dance routines, and trick plays — often go viral. What I didn’t realize until recently about this very entertaining league is that although they play baseball, the rules are substantially different. The game is on a fixed two-hour clock where teams “win” each inning and are awarded one point if they score more runs than the other team. The batter can steal first base, and if a fan in the stands catches a foul ball, the batter is out. In “banana ball,” but not in “baseball,” these rules are the law.
In baseball, the rules are written by the “legislature” of the Playing Rules Committee. The “executive,” in the form of the Commissioner, sanctions and implements the rules. And if an Astros player tries to steal first base in a game against the Mariners, it is up to the “judge” – the umpire – to say in that moment whether the player can stay on first base. If that umpire were not there to enforce the rules while the game was being played, the rules would not have any real force or effect.
As in baseball, our judicial “umpires” in the legal system are rulers. We don’t usually refer to judges as “rulers,” even though we say that they “ruled” or issue “rulings.” But if we don’t acknowledge and respect judges as equal rulers in part of our constitutional system, the rule of law cannot exist.
And don’t yell in the ump’s face, or you’ll get ejected from the game. This isn’t Banana Ball, people.
