The Rule of Law

The Rule of Law

By Joel Levin

For decades, unhappy students, plowing through glum and endless history texts, have been momentarily cheered by Voltaire’s quip: the Holy Roman Empire was neither Holy nor Roman nor an Empire. (Instead, it was a secular, Germanic set of conquests and alliances). In the heated arguments about Attorney General Barr’s intervention seeking the dismissal of all charges against Lt. Gen. Michael Flynn, the former National Security Advisor convicted of repeatedly lying to the F.B.I. about conversations with the Russian Ambassador – and Barr’s intervention in other matters, including generally redoing and even investigating for wrongdoing the work of Robert Mueller, the special prosecutor into Russian election interference – the worry arises about the precarious existence of the Rule of Law. To understand that worry, and to see how much we should embrace it, we need to begin with the simple truth about the Rule of Law: it is not a rule and it is not a matter of law.

The Rule of Law as a symbol holds great power. Locating it, though, is problematic. It is perhaps not quite as obscure as the legal unicorn of obscenity, of which Justice Potter Stewart said he knew it when he saw it, a maddening difficulty for those whose perception or myopia differs from his. For the Rule of Law, the suggestion seems to be, not that we know it when we see it, but rather that we know it when we no longer see it. Its jeopardy appears, occasional flag-waving aside, to be its singular reason for comment. When a particular brick in the rule of law wall is removed – an independent judiciary, a neutral prosecutor, lawful arrests, rights at trial – concern sets in, outrage is announced, and the Rule of Law apocalypse is commonly predicted.

Sometimes that righteous concern proves justified. When elected leaders such as Turkey’s Erdogan and Russia’s Putin arrest their adversaries, when secret incarcerations occur in Argentina or Northern Ireland, when habeas corpus is suspended even in time of war and even by the iconic Abraham Lincoln, we decry the loss of the Rule of Law.

We know several things to be true. First, any Rule of Law definition or elucidation is insufficient to qualify as a robust guarantee of a decent, moral, and stable society. The American South and the Rule of Law stood side-by-side with slavery, while matters such as voting rights, basic welfare, universal suffrage, or Social Security, as well as minority rights, are not usually part of the Rule of Law. Arguably the British Empire, as it plundered, pillaged, and impoverished subject nations, embodied what was taken to be the Rule of Law.

Second, much of what we see as the Rule of Law are procedural protections: the right to notice of charges and a hearing, a neutral judiciary, access to lawyers and the evidence in advance, and an appellate system, as well as transparent, stable and publicly accessible laws. These protections serve as complements to decent substantive laws, but those substantive laws are necessary. Let me be clear. South African blacks were charged and sentenced under an Apartheid Rule of Law for being in the wrong place, away from their designated homelands, at certain times of day. The procedures used were not the problem, it was the substantive law that was pernicious. Similarly with the judges in Victorian England, who sentenced children to death for theft, using procedures that had followed centuries of evolving due process protections, judges who were themselves among the technically finest jurists of their day. Law can be the engine of tyranny and cruelty, as can the Rule of Law.

 Third, what the Rule of Law includes is complex, controversial, and uncertain at best, more often also inconsistent, vague, and in flux. Legal cases that allow the advantage of uncovering every minute issue are plagued by expense and delay. In an increasingly complex society, this is a worrisome problem. Finding if there was fraud or breach by examining a hard drive or scrutinizing every email, testing every suspect against all the available DNA evidence, retaining armies of (expensive) experts to prove or defend not only a case, but every discrete issue in that case: all of these come at an enormous cost. Following the Rule of Law can be a mixed blessing, as anyone who has had even a brief encounter with the legal system can attest.

Where are we then? Suppose I commit the crime of marrying my Jewish fiancée – a crime in Eastern Europe in the Middle Ages – or my Christian Lebanese friend commits a similar crime by marrying a Palestinian Muslim – a crime in many places recently or today – and we are each arrested, given a fair trial before a neutral judge, represented by excellent counsel, given the right to put on evidence, and allowed the ability to appeal. The real problem remains. We are guilty and would be sent to prison. It will look like the Rule of Law, whatever else it entails, is alone not enough for justice.

However, it is something. What exactly is that something? We might say three kinds of things about it, all generally in its favor. First, briefly, the Rule of Law is a necessary but insufficient basis for justice. For example, to graduate from high school, algebra may be necessary, but it is not the whole thing; it is certainly not sufficient. The same holds true for putting on underclothes and still not being dressed, or constructing wings for a plane but being still short of an engine. That no person should decide their own case is essential to achieving justice, central to the Rule of Law, but more is necessary.

What things must be included as part of the Rule of Law ? Juries? Not in Europe, where they are rare, or even in their ancient place of origin, England, where they are on the wane. Lifetime judges? Not in federal bankruptcy or most state courts. Right to appeal? Not in arbitrations. A court system disconnected from the executive? Not in American administrative (immigration, tax, patent, securities) law. The full presentation of evidence? Not in these days of ubiquitous motions to dismiss and summary judgment.

The collection of things to be included in a definition of the Rule of Law has few necessary conditions that are of much breadth or use or possessing an enriched assortment of requirements. They are instead populated by what, speaking of such concepts, the philosopher Ludwig Wittgenstein called “family resemblances”. Your family may typically be redheaded, freckled, lanky, tall, left-handed, big-footed, large eared, and deep-voiced. But, at a family reunion, you might notice that no one has all these qualities, most having perhaps half. The overweight, high-pitched, blonde cousin is still your relative, recognizably so. The same with the Rule of Law. Juries are not essential, and neither are lifetime judges, or several levels of appellate judges. But something of that is needed to get to the idea of a family or the Rule of Law. Returning, then, to the matter of Attorney General Barr and his decision to walk away from the prosecution of Michael Flynn, a man who twice pled guilty and confessed in open court, and was then found guilty by the court. Flynn is, magically, thought not guilty by a politically appointed prosecutor, and the attempt is made to remove the judge from any role. Something is lost in the idea of what we see to be the central place of judges, whether they be lifetime appointments, subject to appeal, or in need of supplementation by juries. What is lost is central to the Rule of Law. It is central to justice.

If the standards involved in the Rule of Law are assorted and not always, individually at least, required, they are not of the same kind, either. The rule is not just a set of rules, it is a set of other things, including, at least, political institutions, policies, and principles. This is a large area but worth a brief mention (really a reminder). Law operates within a political system, and when that system falters, so does any resemblance of law to justice. This loss can involve the independence of the courts (consider Attorney General Barr or consider the attacks on judges for their ethnicity, a la Barr’s boss) or the courts deciding they should trump the popular will and throw out what they don’t like, whether that be laws involving fugitive slave acts, during the 1850s; laws covering wages and working conditions, as happened in the 1920s and 1930s; or laws involving the regulations of guns and health insurance, as is occurring today. The Rule of Law only makes sense when seen to be part of the overarching political system.

 But even the rules are not just rules. As Ronald Dworkin has shown, what we casually call “rules” consists of at least three things: rules, policies, and principles. Rules apply in an all or nothing way, as with “three strikes and you’re out”. Policies move decisions around, as with courts favoring the validity of insurance policies, arbitration agreements, and wide open discovery as good public policies. Principles have an ethical dimension that give them greater or less weight depending on the moral situation. For example, speech is of greater weight when delivered by a political candidate running for office than by a cigarette manufacturer seeking to sell tobacco products. Given that, it means that the Rule of Law must include rules, policies, and principles located in the political setting of legal systems.
That is the rule part, hopefully more coherent when amended. The law part is entirely wrong. It is not whether any portion of the law is not the law: understanding identity is at the core of how we reason, x=x for every single x. It is a problem of why we have identified the concept – the Rule of Law – in the first place. It is not in search of a particular signal as to how to act, such as obeying the speed limit or enforcing a contract. The problem involves protecting the Rule of Law and making it robust, but not for the goal of streamlining police powers or revving up economic prosperity. Rather, the goal is a moral one: more and better justice. This puts us in the ethical realm, making the Rule of Law a moral issue, not a legal one.

 Here, Mr. Barr fails yet again. That failure is central to morality – the requirements of treating each of us equally under law, of preventing legal favoritism and cronyism, of treating people as autonomous individuals responsible and held responsible for their own actions, of employing standards that are consistent and only change for reasons of sound principle or good policy, of treating like cases alike, of keeping separate the executive and the prosecutorial roles, of taking seriously violations of crimes that are rooted in protecting the citizenry – morality put at risk by Mr. Barr’s special treatment of General Flynn. The Rule of Law, once we see its complexities and return it to its ethical natural habitat, is a good reason to understand where, how, and why Mr. Barr has gone astray.

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