For example, under Arizona law simply yelling at somebody without taking any other ‘hostile’ action, can be legally construed as ‘threatening and intimidating’ and opens the door whereupon an arrest can be made. The ‘can be’ part is where the problem lies. Under Arizona law there exists nearly a dozen instances whereby one could be charged for threatening and intimidating. From the choice of words used to describe these instances, it covers almost everything imaginable… giving excessive latitude to the police officer’s discretionary powers. While it is unlikely charges would be filed against a person for simply yelling at someone, the point is… charges might be, or might not be, filed. Arbitrary... no? As we all know, the option of whether or not an arrest should be made belongs to the police officer. Except where does ‘option’ fit in the rule of law? The term ‘rule of law’ suggests strict adherence… not flexibility. If options and flexibility do fit then the concept (as a theory) isn’t sound.
In order for the rule of law to become an actuality laws must (should) be strictly enforced. Strictly enforced I say? Yes, if laws were fair and reasonable then they should be strictly enforced. We’d be better off knowing for sure where we stand... to be confident in our ability to avoid arrest. That scenario is just what the plebeian class of ancient Rome wanted... which the Law of the Twelve Tables provided. They’d have to be similarly simple laws however, laws which are clear to everyone, but most importantly laws which take away every ounce of latitude, verbiage which could potentially broaden their scope. Actually it’s a case whereby laws can be strictly enforced without putting half the population behind bars. If they are not strictly enforced how can we say we live under the rule of law?
It seems clear; instruments with discretionary latitude resemble guidelines more, not laws. Laws should be specific and the less specific they are; the less they can be described as laws. They become guidelines and since guidelines can cover a broad range of circumstances and being intentionally vague often, the end result amounts to arbitrary justice. There is a great danger having laws not narrowly specific and not strictly enforced. It’s a great danger to justice… perhaps the greatest danger. So until police discretion is removed, the rule of law concept can't exist.