A Treatise of Parliamentary Law: A Call for a Paradigm Shift Kimo Gandall, PRP

A Treatise of Parliamentary Law

A cA ll Fo R A PARAD ig M S H i FT

By Kimo Gandall, PRP

Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty.

— Henry M. Robert

In those days there was no king in Israel; everyone did what was right in his own eyes.

— Judges 17:6

I believe there is a crisis among deliberative bodies: a crisis of custom, of norms, of the rules, and of their connection to good practice. That crisis is “the need for stability in parliamentary law.”1 Many are unclear on either the why or the when to apply parliamentary procedure. Such struggles outline the great Biblical conflict that influenced Robert, pitting strict pharisaic application of the rules to the intention and benefit of those rules.2 This article seeks to propose a paradigm shift to categorize the principles of parliamentary law as a means of understanding the great balancing act of rules and rights.

Before explaining the academic sense of this argument, its importance must be noted. As our world undergoes the COVID-19 crisis, extensive arguments have emerged as to the “nature of the deliberative assembly” in electronic settings, especially the requirement of “simultaneous aural communication” that is similar or the same as a ‘face-to-face’ meeting.3 Some contend we should just ignore the rules and favor ‘life,’ others argue we must still meet, and endanger the lives of others, and yet others insist we do neither. It is our job as parliamentarians to work towards providing a framework to remedy this crisis of philosophy, so that life as we know it can continue.

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2 Robert, H. M. III (2002). “Henry Robert’s Goals Remain in Part Unfulfilled.” National Association of Parliamentarians: 73. Joseph O’Brien, “Henry Martyn Robert: Writer of the Rules, An American Hero (2020),” p. 199. RONR (11th ed.), p. 97, ll. 20-26.

What is Parliamentary law?

Parliamentary law is the function of the totality of rules and customs that a deliberative assembly ought to operate by.4 This law has a telos, or an objective and intended ends, and such ends are to “ascertain and express [the assembly’s] deliberate sense or will on these questions.”5 In order to do so, the proper implementation of parliamentary law is subject to a balancing test, namely, to balance the rights of persons with the will of the majority.6 The rules attempt to institute certain categories required to clarify the implementation of these rights, for example, the right to debate, or less obviously, the prohibition on proxies which violates the nature of a deliberative assembly.7 Interpreting the meaning of this definition is thus simple: if an assembly consistently (absolutely) follows parliamentary law, it is acting to its telos (intended ends), and therefore good, even if the individual dissents.8

For our purposes here I will also differentiate two requirements in parliamentary law: the rules of something and the nature (customs) of something. The rules are the explicitly enumerated text; that is, an assembly’s bylaws, standing rules, special rules, parliamentary handmanual, etc.9 The custom of something is a function of the objectives of that thing and the uncoded means of that thing.10 As such, in order to accomplish an end, good customs of that thing are needed to ‘fill in the blanks’ where the rules do not fit.

Two competing Worldviews to Remedy Parliamentary law Ambiguities

During the 2001 National Association of Parliamentarians (NAP) convention, Robert III theorized the first remedy: to make a short, simple manual with the objective to make the rules easier to understand. This remedy, which we now call “In Brief,” is a result of this advocacy. The argument goes as follows: due to the very size and complexity of RONR, laymen do not know the rules. Laymen, not parliamentarians, are usually the ones to interpret the rules. Therefore, we ought to teach laymen the rules, either through training or, as Robert III argued, a shorter manual. This conclusion, however, only follows if we assume teaching the rules is sufficient to correctly implement the rules in conjunction with the law but the rules themselves prohibit a strict observance of the rules.11 Therefore, this remedy is incomplete.

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9 10 11 Parliamentary Law: 3. Ibid. RONR (11th ed.), p. li. RONR (11th ed.), pp. 428-9, ll. 34-5, 1-2. Aquinas, Thomas. Summa Theologica, P. 1, Q. 94, A. 2. We operate under the assumption that good can be tangibly defined—that is, self-evident, through natural law. RONR (11th ed.), pp. 12-8. RONR (11th ed.), p. 19, ll. 3-5. RONR (11th ed.), p. 456, ll. 14-8; p. 250, ll. 11-3.

Worse yet, others take the complexity argument of RONR to mean we ought to accept smaller, more refined manuals, such as Rosenburg’s Rules of Order. As Cuesta (2020) warns:

We must not weaken the rules of order by yielding to a misguided set of rules that promises a simpler version but merely removes critical concepts.12

This perspective, therefore, either masks inconsistency or, as Cuesta cautioned, yields to misguided and often harmful acts.

The second remedy is the opposite of the first: instead of creating a shorter book, easier for the layman, these individuals seek to expand the rules to cover more circumstances. This was the historical approach taken by Major Henry Robert’s attempt to “end the controversy as to what was parliamentary law.” To do so, upon insistence by his wife, he expanded the parliamentary handmanual 50%.13 Despite these specifications, along with the association’s hundreds of pages of additional rules, we are still required to emphasize a rather ambiguous set of values (namely “leadership” and “discretion”14) that are critical to the adjudication of problems in an assembly.15 This conflict, whether one was to follow the rules or not, and by what principles to be guided, continues to haunt parliamentary debates to this day.16

To synthesize the debate for clarification on ‘parliamentary law’, Berg (2019) spells out a clear dichotomy leading to the confusion: on the one hand, extreme legal positivism leads to a violation of the ‘common sense’ clause echoed in RONR. 17 In enforcing the rules, one ought to avoid raising points of order that are “purely technical characters.”18 The rules, moreover, specify that such a “technical character” emerges as a result of “no one’s rights [sic] being infringed…and no real harm is being done…”19 To the rules oriented paradigm, which seems to be the path preferred by most, we solve this conundrum by simply expanding the book. The following portrays the logical fallacy in either such argument:

P1. That natural law, as an observable subcategory of eternal law, encompasses all of parliamentary law;

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19 Cuesta (2020): 12. O’Brien: 163. RONR (11th ed.), pp. 250, 456 ll. 9-15; 13-5. Joseph O’Brien (2020): 224. Lorenzo Cuesta, “Anti-Motions, Para-Motions, and Tandem-Motions for Robert’s,” 80:1 National Parliamentarian (2018): 5-9. RONR (11th ed.), p. 250, ll. 10-15. RONR (11th ed.), p. 250, l. 13. RONR (11th ed.), p. 250, ll. 13-15. See also: David Mezzera, “RONR vs. The Real World,” 80 National Parliamentarian 17-19 (2019); RONR (11th ed.) p. li.

P2. That any deliberative act not according to parliamentary law is fundamentally immoral; P3. That the parliamentary rules (RONR) can codify only most, but not all, of parliamentary law; P4. That the deliberative body acting solely according to parliamentary rules is insufficiently able to act according to parliamentary law; P5. That an assembly ought to follow parliamentary law; P6. In the status quo, that the assembly completely adhering to parliamentary law, is either through fully following the parliamentary rules or not (i.e. through discretion);20

P7. That parliamentary rules do not always correctly adhere to parliamentary law;

P8. That not following parliamentary rules is sometimes correctly adhering to parliamentary law;

P9. It therefore follows that the assembly, acting fully within the rules or not fully within the rules, acts immorally.

This set of formal logic can be summarized as follows: the law wants us to follow both nature and the rules, and therefore strictly following either will result in immoral/inconsistent action. But because of underdetermination of the law (P7, above), we can never properly interpret it.

While this view on the procedures seems only academic (if not fatalistic), I believe that Robert would agree with this author that there is a great fear of either extreme. Outlining his fear that Christians would give in either to the evil of mob rule (majority rule) or the seduction of autocracy (minority rule), Robert himself stated: “The most terrible tyranny is that of the mob…the slave of their own passion…the next worst form of government is where the law is entirely dependent upon the will of him who executes it…”21 Thus, to Robert and to the rules, a correct understanding of parliamentary law will not only balance the necessary evil of a governing majority, but also reconcile those utilitarian impulses with the moral necessity for justice and the rights of the minority.22

Filling the gap: Natural law’s Role in Solving Underdetermination

A functional paradigm shift would need not change the rules, but base them under a tangible objective. This would include the following: 1. A short expansion of the “Principles Underlying Parliamentary Law.” Future articles will be needed to elaborate on this advocacy. Functionally, it would address the telos of parliamentary law; that is, to follow the general principle

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21 RONR (11th ed.), pp. 250, 456 ll. 9-15; 13-5. O’Brien (2020): 154. RONR (11th ed.), p. li.

of, as Aquinas stated, “good is to be done, and evil to be avoided.” Future articles will need to specify the identified ends, but they will roughly fall into one of three categories: i.

The determination of good under parliamentary law. This section would explain the values of parliamentary law that are a priori accepted. That is, for instance, that fairness and justice should be respected.

ii.

That which preserves the capability of good. This section would list and apply parliamentary rights to their application of good. The telos of rights is to allow free agents to do good; per the contrapositive, evil is the policy of preventing free agents from doing good. For instance, if members can’t vote or debate, they can’t pass policy to further the group’s interest. It is important to note these rights aren’t only for the individual, but for the group: for example, the right to end debate on a pending question so the group may reasonably govern to do good. iii. That which is subject to discretion. Most impactfully, this section would specify how, when, and under what conditions to apply discretion. Discretion, under this section, is to specify the application of custom, norms, and other decisions. 2. A more lengthy adoption of an official “parliamentary law” book. This would involve selected contemporary examples, data, and cases for parliamentarians to refer to. This book would also extensively explain the philosophical principles underlying parliamentary law. 3. An addition to the ‘In Brief.’ A shortened, one-page inclusion into RONR

In Brief explaining the values, telos, and the rights of members.

concluding Remarks

It is the solemn duty of scholars of the parliamentary tradition to march towards the ever-elusive embrace of consistency. In short, this article argues that we have a duty to ensure that the word of law adheres to the spirit of the law; otherwise, as Robert would have warned against, our rules become little better than the rigorism of the Pharisees: “You have nullified the word of God for the sake of your tradition.”

— Matthew 15:3

kimo gandall, PRP, is an active member of the California State Association of Parliamentarians (CSAP) and studies at the University of California, Irvine (UCI) in the School of Social Sciences. Gandall’s work, focused on international institutions, attempts to identify empirical indicators and create models of parliamentary procedure’s effect on policy. He also serves in student government and various political organizations. He strongly advocates for a society founded on the rule of law. Gandall acknowledges his friend Logan Knight, a law student at UCI, for research and editing assistance on this article.