Of rules and rulers

The chaotic events that occurred last Jan. 6 in the very seat of power of the United States of America were horrifying to behold. But whether or not they were shocking depends on how closely you have been following news about the political climate in the US. On that day, a mob of supporters of President Donald Trump overran the US Capitol while members of Congress were inside holding a session to certify the election victory of President-elect Joe Biden. This comes in the wake of President Trump’s repeated refusal to accept the election results as valid, and his insistence that the election had been stolen from him through underhanded means. President-elect Biden laid the blame on Trump, stating afterwards: “In the past four years, we’ve had a president who’s made his contempt for our democracy, our Constitution, the rule of law clear in everything he has done. He unleashed an all-out assault on the institutions of our democracy from the outset. And yesterday was the culmination of that unrelenting attack.”

Whether or not you agree with the particulars of Biden’s accusation, “culmination” is the right word for the riot that occurred. The actions of the predominantly white crowd cannot be attributed to a spur of the moment impulse, or a single inflammatory speech. It is very much possible that there were key words spoken that kindled their act, like a match combusts a pile of hay. But the question of where the hay came from remains. Where did they get the boldness to trespass on what (in theory) was one of the most secure places in their country? Where did they source their certainty that they could do something so patently illegal – and compound this in some cases with acts of theft or vandalism…and get away with it? It’s very clear that many expected to be able to take part in the incursion without facing criminal liability, which is why so many left their faces uncovered, or even posted photos or videos of themselves storming the Capitol.

There has been much talk of the Capitol riot as being an “end to American exceptionalism,” but what is striking to me here is the exceptionalism displayed by the individuals involved: that they could believe (or act as if they believed) that they had the authority to overrule legal processes through force and coercion, and that the rules that governed the rest of their countrymen did not apply to them. The riot was indeed a culmination – the natural and dangerous result of undermining of the rule of law.

The “rule of law” is one of those phrases which we often hear within the context of democracy, but do not often analyze. It does not mean a regime where no violations of the law take place: civil disobedience is an integral if unspoken part of healthy democracies, and these in and of themselves do not undermine the rule of law. In fact, many who engage in civil disobedience – unlike those at the Capitol riot – do so fully expecting to face arrest and charges, which is what makes their protests so powerful.

Neither does the rule of law mean “if it’s legal then it’s moral.” The rule of law as it is seen in modern times is, in fact, meant to protect human rights, as stated in the preamble of the Universal Declaration of Human Rights. The United Nations views the rule of law as the vehicle for the promotion and protection of the human rights framework that allows people to live in dignity. What, then, is the rule of law? It’s a principle of governance where everyone –persons or groups, public or private – is bound by and accountable to law. It is not only a regime where not only is no man above the law, but where no entity is above it, even the State itself. These laws must – unless in exceptional circumstances due to substantial distinctions between groups – be of general application: the law that applies to the poor man must be the same that applies to the rich man. This is because there is no better safeguard against arbitrary and unreasonable laws than to require that these laws will apply to the law makers and law enforcers as well.

These laws must have been passed by a body that is representative of the people which possesses a democratic mandate from an enfranchised population (not, for instance, laws passed by an apartheid government). In a constitutional republic, these laws themselves are bound to comply with a higher law – our constitution. The primacy given to laws also means that it is of the utmost importance that these laws possess characteristics that make it possible for all citizens to obey them: they must be clearly written, publicly accessible, predictable and (save in exceptional cases) prospective in their application.

Essential to determining that the laws have the characteristics above is the existence of strong institutions of justice, governance, security and human rights. Of particular importance is the vitality of the judiciary and the availability of judicial review, as stated in one Supreme Court case: “indispensable for the maintenance of the Rule of Law is a free and independent judiciary, sworn to protect and enforce it without fear or favor – ‘free, not only from graft, corruption, ineptness and incompetence, but even from the tentacles of interference and insidious influence of the political powers that be...’”

Last but not the least, for a society to be said to possess the rule of law, it must have a public and a civil society that is determined to simultaneously hold individual officials to account, while strengthening the functionality and belief in democratic institutions.

As should be clear now from the above, I believe that the rule of law is not a destination which can be reached, but an ideal that we must constantly be striving to approach. In a world that is fundamentally unequal, it is only through striving for the rule of law that the State becomes a protector of the many rather than the tyrant of the few.