Por James C. Nelson
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| Photo by Albert Stoynov |
There is one thread that holds the cloth of democracy together. That is the Rule of Law. For the most part, we take the rule of law for granted; we don’t give it a second thought, even though we rely on it constantly. Yet, pull that thread, and the cloth of democracy frays and ultimately unravels.
The rule of law is defined as the principle under which all persons, institutions, and entities are accountable to laws that are: (1) clear and publicly promulgated; (2) equally enforced; (3) independently adjudicated; and (4) are consistent with international human rights principles.
Note that the rule of law is not what the ruler says is law. The ruler—here, the President—is governed by the rule of law and is accountable to it the same as everyone else.
But the rule of law is not just a cookbook of disconnected decrees, laws and regulations. Rather, it is a system of constitutions, laws, norms and customs that binds all persons, including elected and appointed officials, business entities and secular and sectarian institutions. The rule of law reflects our society’s values and normative social agreements.
First, as noted above, the rule of law requires that the system consist of laws and rules that are clear and publicized. Vague and ambiguous laws are typically held to be unenforceable or unconstitutional if challenged in court. The reason is common sense. If those who are to be bound cannot understand what is required of them, then they cannot be sanctioned for violating a law or rule. By way of a simple example, what if the law said, “motorists may stop at a red light.” Obviously, a motorist, having been given discretion, may determine not to stop at a red light. Imagine the chaos that would cause on our streets and highways.
Or what if the legislature adopted a law that said “Sales of alcohol beverage on Sundays before noon are prohibited and are punishable as a felony.” But if the legislature never made the law public, how could a merchant be held accountable for not complying with a law if he or she didn’t know such a law existed? A maxim of jurisprudence says that “ignorance of the law is no excuse,” but that presupposes the law had been adopted by transparent processes and was publicly promulgated in the first place.
Second, the rule of law’s constituent parts must be equally enforced. That means that each part of the system must be implemented and applied to all who incur an obligation to act or to refrain from acting in a certain manner. In other words, the rule of law must bind everybody.
Again, by way of a simple example, if the system prohibits murder—homicide– then the prohibition applies not only to ordinary citizens, but it also applies to members of law enforcement and to elected and appointed officials. While police officers may use lethal force in some circumstances, they may not arbitrarily shoot and kill a person who was not breaking any law; nor may a public official order such killings.
Third, the constituent parts of the system must be adjudicated by fair, impartial, ethical and independent courts, judges and neutrals. That means breaches of a rule or law or if there occur disputes or conflicts over the meaning or application of a rule or law, those must be adjudicated and resolved by courts or, in some cases, by administrative law judges or by duly appointed arbitrators.
Importantly, each person or institution with decision-making authority must be independent (i.e., not beholden to or controlled by any aggrieved party), fair (i.e., must treat each aggrieved party equitably and with respect), impartial (i.e., must be unbiased, unprejudiced, and objective) and ethical (i.e., must comply with any controlling professional standards or cannons of ethics).
Fourth, the rule of law must be consistent with international human rights principles. These include: the United Nations’ Universal Declaration of Human Rights and core international treaties. Key to these are freedom from torture, slavery and arbitrary arrest; equality before the law, presumption of innocence and right to a fair trial; freedom of thought, conscience, religion, expression and peaceable assembly; and the right to work, fair wages, education, social security and an adequate standard of living encompassing food, health and housing.
In societies where there is a functioning, strong rule of law, economies are stronger and more stable, people are better educated and live longer and in more peaceful societies.
However, as noted, break the constituent parts of the system of the rule of law and democracy frays and eventually unravels completely.
Finally, I pose this question. Viewing the constituent parts of the system of the rule of law, how does present day America measure up? While the answer to this question requires extended discussion and analysis, I suggest the rule of law in our country is not on a firm footing.
At the federal level and in some States we are governed by politicians who have little regard for the Constitution—which they swore to uphold; they are happy to ignore the law and basic human rights wherein doing so will serve partisan interests and the decrees of our President or a State authority; and many of our governmental policies are not consistent with international human rights principles—kidnapping heads of state and bombing boats assumed to be running drugs and killing survivors of those bombings, ICE agents murdering peaceful protesters, arbitrary immigrant arrests and deportations without due process of law, for example.
In violating our Country’s rule of law, we risk destroying our democracy. Worse, we risk being sucked into the abyss of despotism, authoritarianism and fascism. We risk anarchy.
James C. Nelson a retired Montana Supreme Court justice. He lives in Olympia, Washington.
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