Rule of Law

AB: “explaining why presidents shouldn’t exceed their constitutional powers and why courts and Congress should act expeditiously to hold them accountable when they do.”

Joyce in this piece is explaining Why “The Rule of Law” and an Independent Judiciary is important today.

Joyce Vance

Civil Discourse

“People value the Rule of Law because it takes some of the edge off the power that is necessarily exercised over them in a political community. In various ways, being ruled through law, means that power is less arbitrary, more predictable, more impersonal, less peremptory, less coercive even.”

In his 2010 book, The Rule of Law, Tom Bingham wrote that, at bottom, the rule of law provides much-needed predictability in the conduct of our lives and businesses. In other words, the rule of law is far more than just a matter of legal philosophy. It has a practical impact on the economy and our financial well-being, for instance. People can invest and do business because they understand the rules that will be applied to those transactions. Understanding the practical importance of the rule of law should perk up some people who might otherwise be nodding off, given the title of this post. Bear with me; I promise there is more than an academic point to what you’re about to read.

Bingham is more properly Sir Thomas Bingham. He was a high-ranking British civil judge, the Master of the Rolls, before becoming Lord Chief Justice of England and Wales, the head of the judiciary. He also served as the Senior Law Lord of the United Kingdom. In other words, he was well situated to discuss the rule of law. His book is readable and accessible for people of all backgrounds, should you want more of his thinking.

Unlike many terms we deploy with precision in our legal system, terms like “due process” or “equal protection,” there isn’t a single commonly accepted definition of the rule of law. To Bingham, “the Rule of Law is one of the ideals of our political morality and it refers to the ascendancy of law as such and of the institutions of the legal system in a system of governance.” Less formally, I would suggest that it means people who live under a rule of law system are protected by the law because everyone, including government officials and government offices, has to follow it. In a rule of law system, people know what the law is—it’s publicly available in written form, and everyone is on notice of the rules. It’s enforced equally against all people and administered by an independent judiciary. No kings. As we used to say with certainty pre-Trump, no man is above the law.

That’s the problem. Even this high-level explanation of the rule of law is sufficient to illustrate what we already know: that Trump is attacking it. He has been from the get-go, and encouraged along by some regrettable Supreme Court rulings, he’s now out in full force. It’s more than just an attack on some pretty words lawyers use; it’s a fundamental attack on our way of life. Legal principles that seem removed from our daily lives can matter, and here, they matter deeply. It’s why we should all have a baseline understanding of them. And it’s why I was so encouraged to see people out protesting on Saturday for “due process” and the rule of law, something I wouldn’t have expected to see so widely a few months ago.

The English philosopher John Locke (1632-1704) also wrote about the rule of law. In a 1689 volume of his Two Treatises of Government, he emphasized the public’s right to know what the law is, writing in an era where the law was more whimsical than the stability, for instance, the advance knowledge of what constitutes a crime, that we take for granted today. He wrote that “established standing Laws, promulgated and known to the People” were critical, contrasting them with a government that ruled through “extemporary Arbitrary Decrees.” That’s something we all understand in this moment.

Locke used the word arbitrary in this context to mean laws that weren’t fixed and established so that everyone knew what they were and there could be no fudging when it came to what people could and could not do. In Locke’s view, a ruler was arbitrary if he imposed measures with no notice, just making up the law as he went along. When there is no firm law to refer to, only the unpredictability of arbitrariness, people have nothing to rely on for conducting their daily affairs. Locke put it like this in 1689: Without the rule of law, people were subject to “sudden thoughts, or unrestrain’d, and till that moment unknown Wills without having any measures set down which may guide and justifie their actions.” In Locke’s view, predictability and certainty were essential if people were to live together. It made sense in the 1600s and it makes sense today.

What are citizens’ obligations in a rule of law system? Each of us has to follow the rules, even when we don’t agree with them, and be accountable if we violate them.

In a functioning rule of law system, the law protects everyone equally because people know what the law is, understand what they are obligated to do and refrain from doing, and can have confidence in how they will be treated when they have disputes with others. It’s the framework that lets people live and prosper together without resorting to violence to resolve every dispute, Hatfield and McCoy style. It’s why people from other countries come to the U.S. to invest, do business, and live. The rule of law is something we simultaneously take for granted and can’t live without, at least not in the way we are used to living.

One significant feature of the rule of law in our country is that it isn’t only available to the wealthy and the powerful. In the United States, criminal defendants in felony cases are guaranteed the right to counsel under a 9-0 1963 decision, Gideon v. Wainwright. Although there is nothing equivalent in civil cases, legal aid groups and pro bono organizations sponsored by bar associations provide some access to counsel for people who cannot afford it. Lawyers often take plaintiffs’ cases, everything from car accidents to mass torts, expecting to be paid only if they’re able to recover on behalf of their clients. We could do better, but there is broad access to the legal system and it has greatly improved over time.

Our system, although imperfect, has largely worked well enough to hold people’s trust and to give us the confidence and certainty that we needed to reap the benefits of the rule of law. The courts work if people trust them to take the rule of law seriously and protect it. That means having an independent judiciary that is transparent and that conducts itself with integrity.

All of this, of course, explains the seismic shift of Trumpism. It explains why presidents shouldn’t exceed their constitutional powers and why courts and Congress should act expeditiously to hold them accountable when they do. It also underscores why the courts, and individual judges, should always act with unquestionable integrity, so that in a moment where confidence in the courts is essential, it is there in abundance. The judiciary must be independent, not beholden to private interests or under the thumb of others in government. Its rulings and reasoning should be transparent. Otherwise, how can people who are removed from the courts trust them to uphold the rule of law?

That is the danger of the moment we live in. There are some encouraging signs—Democrats in Congress are rallying. The lower courts, and this past weekend the Supreme Court are imposing checks on the administration, but only when they are warranted. But there are still serious concerns about the supine Congress and Trump’s efforts to stifle dissent in government, the press, private businesses, and public organizations. The institutions, it turns out, are only as strong as the people who populate them. In some places we see courage and determination to protect the rule of law. Other places, not so much.

If the rule of law fails, it’s not just words. It’s the bedrock stability that protects our way of life. In other words, it’s not just a shoulder shrug and a time to look away. We are, thankfully, not there yet. There are ups and downs, but the most encouraging development is public awareness, particularly focused on due process, and the understanding of how important all of this is. “Hands off my rule of law!”

Americans are increasingly doing the hard work of understanding how democracy works. You cannot save something you do not understand. Understanding why it matters is as important as understanding how it works. Share this newsletter via email, or better yet, in conversations with friends.