Thursday, October 1, 2020

'Rule by Law' is not the same as the 'Rule of Law'

 Attorney General William Barr recently argued that the rule of law “is the lynchpin of American freedom,” that its “essence” is that “whatever rule you apply in one case must be the same rule you would apply to similar cases,” and that it “requires that the law be clear, that it be communicated to the public, and that we respect its limits.” Here, too, rhetoric did not match reality, wrote Ankush Khardori in The New York Review of Books. Under Trump and Barr, the rule of law has corroded into a corrupted version of the ideal that has proven remarkably effective as a vehicle for exercising and maintaining political power.

The concept of the rule of law, developed over centuries, encompasses a variety of principles. Some are formal in nature, like the requirement that the law be publicly available, so that people know what is and is not lawful and can manage their affairs accordingly, while others are procedural, like the right to have legal disputes decided by an independent judiciary. At the risk of oversimplification, Barr had this right: a society governed by the rule of law has general, clear, and accessible rules that apply to everyone, as opposed to one governed by an arbitrary, oppressive power.

In recent years, another, intermediate notion has emerged in academic accounts: rule by law. Jeremy Waldron, a political and legal philosopher at New York University, has summed up the term as referring to “a debased version of the rule of law,” in which a government uses the law as an instrument of the state to achieve its objectives and to control the public, but without being subject itself to legal constraints in the same way. This is not the same exercise of power that an authoritarian regime uses. As Waldron puts it, an authoritarian regime does not really “use law at all,” while a government that rules by law accepts the formal rigor of legality “even if it remains instrumental to the purposes of the law-maker.”

As members of the public, we still have laws we can use to guide our actions and set expectations for how the government will evaluate our conduct, and there remain some legal constraints on what the government can do to us and how it can go about doing it. There is significant value to that, even if we cannot hold the government and its officials accountable as we could in a rule-of-law society.

This has considerable appeal as a description of the way the US legal system is increasingly operating today, and it is particularly useful for understanding the actions of the Department of Justice. 

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