Much has been written and spoken recently about the “rule of law.” It is not a phrase that I have ever used in my practice, and so I am curious as to what it truly means. I found a definition on the internet; it means “the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws”
The Oxford English dictionary says that it is “the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”
Aristotle wrote that, "It is more proper that law should govern than any one of the citizens.” A.V. Dicey, someone I have never heard of until I began researching this subject, is credited with the modern definition of this phrase; he says: "no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land.”
A non-profit organization called the World Justice Project is dedicated to advancing the rule of law around the world and proposes a rules-based system in which the following four universal principles are upheld:
The government and its officials and agents are accountable under the law.
The laws are clear, publicized, stable and fair, and the protect fundamental rights, including the security of persons and property.
The process by which the laws are enacted, administered, and enforced is accessible, fair and efficient.
Access to justice is provided by competent, independent and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
Henry David Thoreau, a 19th century philosopher wrote an essay entitled “Civil Disobedience” in which he defends the validity of conscientious objection to unjust laws, which he claims ought to be violated. He even defended John Brown, the Kansan abolitionist who advocated the use of armed insurrection to overthrow the institution of slavery in the United States before the Civil War.
Thoreau did not advocate anarchy, but instead better government. He refused to acknowledge the authority of one who has become so morally corrupt as to lose the consent of those governed. John Brown was hanged after the unsuccessful raid at Harpers Ferry, Virginia in 1959. On the day he died he wrote: “I, John Brown, am now quite certain that the crimes of this guilty land will never be purged away but with blood. I had, as I now think, vainly flattered myself that without very much bloodshed it might be done.”
Thus, we have a history of civil disobedience in this country to the rule of law. The best example of civil disobedience in my lifetime was the work of Martin Luther King Jr. who cited Thoreau as an inspiration. Dr. King used non-violent means to protest Jim Crow laws, state and local laws that enforced racial segregation in the south. The rule of law was being used for immoral purposes.
“Rule of law” is terminology frequently used in the impeachment process. Amidst all of the political rhetoric is heated debate as to whether the rule of law is being followed, ignored or blatantly violated. Subpoenas for documents and witnesses have been ignored, and I am sure that those who justify that action base their argument on the right to be disobedient to unjust rules or processes. On the flip side, some would suggest that legally recognized processes are being utilized and the rule of law has been abandoned. The president apparently believes that he is not subject to the rule of law.
I have my own opinions, but I must admit that I am concerned about the effect that the impeachment process and the reaction to it will have on the civil and criminal justice system. We regularly utilize subpoenas in our practice and I suspect that someday we will face the argument that if the president of the United States can ignore a subpoena so can I.
I am also concerned about the distortion and abandonment of truth. We now have alternative facts, the phrase used by counselor to President Trump, Kellyanne Conway, during an interview in January of 2017 in which she defended press secretary Sean Spicer’s statement about the attendance at Trump’s inauguration. It used to be said that a picture is worth a thousand words, but it now depends on who is describing the picture rather than what is shown in the picture.
Oaths of public officials, judges and witnesses do not have the sanctity they once did. If someone solemnly vows to tell the truth, that must mean something. After all, one of the Ten Commandments states that we should not bear false witness. There are no exceptions to that commandment in the Bible.
Whether we want to admit it or not, we are undergoing a cultural transformation that will affect generations of people. This is taking place in the midst of conflict and division that has not been present in our country since the dawn of the Civil War. Some have suggested we are headed to another civil war, and with the proliferation of guns in this country, that should frighten us all.
Bob Buckley is an attorney in Independence, www.wagblaw.com . Email him at firstname.lastname@example.org.