What is the rule of law? A number of years ago, when asked to develop a series of lectures on the subject, I found a great deal of disagreement and superficiality about the term. Government spokespeople tended to use the phrase “rule of law” as shorthand for the kind of political and economic system they asserted to exist in the United States. But they engaged in precious little examination of this claim and deeper, challenging issues were ignored.
Lawyers and judges generally did little better. They assumed that the American legal system embodied the rule of law and offered definitions that included the main features of that system: promulgated rules developed through an established, public process; constitutional safeguards of various sorts; rules that applied to all people (no one was “above the law”); and usually some underlying democratic processes that permitted the people to change their governors who would, in turn, change the rules. The emphasis fell on what John Locke called “a known and settled law” enforced by established and limited officials and applied fairly by established judges.
Little was said about the substantive results of all this rulemaking and procedure, aside from the vague idea that the rules must not violate “natural” or “human” rights. It appeared that as long as the rules contained no significant violation of rights (one might justly ask how slavery ever passed muster even on this minimal standard) and as long as they applied “equally” to everyone, all was well. Few seemed to remember that when you apply a neutral set of procedures to unfair rules, you end up with unfair results — though they may “look” fair to those enamored with the process.
Numerous 17th and 18th century writers — Coke, Hobbes, Harrington, Locke, the American Framers among others — plowed the rule of law field and even succeeded in influencing the actual practice of government.
The American Constitution elaborated a governmental system of specifically limited powers in which no one person, no one branch of government, no powerful group could rise above the law to achieve their personal interests. Of course, the remarkable system the Framers designed failed to achieve what some even then considered the heart of the rule of law — equality before the law — because it rested on cultural assumptions that viewed some people (women, slaves and free Blacks, Native Americans) as unequal to white men. Worse, fairly quickly the sharp edge of thinking about the rule of law dulled and the belief that it existed became part of unexamined common lore.
Now and then significant strides were made toward greater equality. But for many years now the vast majority of Americans have bought what they’ve been told: that we live in a democracy characterized by the rule of law. Little effort was made to specify exactly what those terms might mean or examine the ways in which American practice fell short of American theory. We have raised generations who do not understand the role of courts, the importance of an independent judiciary, the value of lawyers, the meaning of equality before the law — generations who do not know why the rule of law is valuable.
John Stuart Mill argued that unless vigorous debate is permitted (indeed encouraged), unless people must frequently defend the articles of their faith, those articles become like castles in the sand and it takes little to wash them away. We have recently seen assaults on the rule of law — from high places and low — that found support among a distressingly large percentage of the American population. If you don’t know why constitutional rules or established legal principles are important, it’s easy to go along with those who wish to override them. This is where we are today.
While we are in deep trouble in our country, perhaps there’s hope. Perhaps the attention being paid to the shortcomings of American law and legal process as a result of pandemic and a new awareness of systemic bias will inspire more of us to think about what the rule of law actually means. Perhaps we will confront the shortcomings of our legal system, debate how to change it, deliberate and act.
As a profession we should take the lead in this reflexive process. We should make the real establishment of the rule of law our collective responsibility. We should make sure that our fellow citizens know what the rule of law is and why we must have it.
Will we do so?
Kevin Ryan is executive director of the Monroe County Bar Association.