Fifteen Eighty Four

Academic perspectives from Cambridge University Press


The Rule of Law in Anxious Times

Stephen J Toope

Undocumented migrants die in deserts, in winter snowdrifts and in turbulent seas. Authoritarian populist leaders jail political opponents, attack the judicial branch of government, and silence independent media. Increasing economic inequality sends more and more people to food banks while a privileged few buy eye-wateringly expensive properties in the English countryside, or in Manhattan, Sydney and Vancouver. Developments in artificial intelligence open up the possibility of decision-making and momentous actions outside human control. A growing risk of unbridled conflict builds in Eastern Europe and the South China Sea. Dramatic shifts in global political alignments engender fear and hatred. A fast-heating earth produces massive environmental damage and seemingly random climatic dangers.

When you look at the world today, there are many reasons to curl up in a sad little ball. Plutocrats buy islands and mega-yachts where they can hide if the world’s trajectory does not improve. The rest of us just carry on, and look for signs of hope.

Here’s one: we don’t have to figure everything out anew. There are tides of human thought and extraordinary human achievements that we can draw upon to work our way out of the current multiple crises. In his marvelous play, The History Boys, Alan Bennett talks about the reassurance we feel when we learn that one of our inklings about the world is actually part of a bigger pattern of thought that we can draw upon to figure out how to move forward. “Now here it is, set down by someone else, a person you have never met, someone even who is long dead. And it is as if a hand has come out and taken yours.”

We need those hands from the past more than ever before, even though we lazily imagine that our age is uniquely troubled. Here’s a solid grip offered from Aristotle: in working through our day-to-day practices of politics, of social discourse, of commerce, of professional life, we can build up useful knowledge. We gain “practical wisdom.” Our lives are to a purpose, one that we discover as we act in the world. Other thinkers have added to this insight. Our purposes, because they are constructed through social interaction, are shaped in part through deliberation with people we meet. Our wisdom is collectively built. We act and our actions have consequences in relation to the actions of everyone else. So we are not destined for anything. We are agents in the world, not passive recipients of whatever is thrown at us.

One of the greatest human constructions of the modern era, created by practices over hundreds of years, is the rule of law. Many people have defined it in subtly and substantially different ways. In our era, when diversity and pluralism are increasingly recognized as social goods, both inside countries and across the globe, the rule of law is best described with modesty. It does not represent a universal understanding of the “good life.” Nor is it a capacious vessel containing particular forms of societal decision making, like democracy, or culturally specific injunctions on how to present oneself to the world. Instead, the rule of law is primarily procedural in content. It encompasses criteria that ensure that social norms have actually been transformed into law, requiring for example that law is forward guiding, not applied retroactively, that law is made openly and not through secret dictate, and that law is understandable by people to whom it is directed. Most importantly, the rule of law requires that law is applied to all people in a society (or at least to citizens) in an equal manner, through institutions like courts or administrative systems that are themselves subject to due process. No one is “above the law”. This is crucial because we can only expect people in a society to show fidelity to the law, pursuing its social purposes, if they can also expect those in public life to do the same. Law is, in this sense, self-enforcing but only when people view it as legitimate.

What does this great inherited tradition, one that requires constant reinforcement, mean for the anxieties of our era? How can it give us a hand to grab onto as we consider the deep uncertainties of our time? In brief, the rule of law tells us that Presidents and Prime Ministers are rightly held to account if they breach legal norms that other people are expected to observe. A President can foment treason, just as can an anarchist. A Prime Minister cannot break COVID lockdown rules that are demanded of the entire population. The potentially exculpatory “importance of the job,” or need for executive privilege should be considered with skepticism at the very least.

Legal claims to refugee status, based on binding international treaties, must be evaluated legally, and not only through a political lens. Established legal processes, including courts with well established jurisdiction, cannot be sidestepped in the name of convenience or because political actors may not like the ultimate decisions.

Autocrats, or illiberal pseudo-democrats, cannot simply assume ever-greater power within a political system because they happen to be charismatic and popular at a given moment. Undermining checks and balances within a political system destroys the legal procedures that give practical life to freedom and equality. Judges who operate within the constitutional framework they are given are not “enemies of the people” because they try to uphold legal safeguards for weaker members of society, or they insist on proper legislative process. Destroying mechanisms of public scrutiny over executive decisions means that people will have no reason to remain faithful to the law. Distrust and instability will grow.

The vast aggregations of economic and social power now present in Big Tech can be subjected to legal regulation at a national and international level. Law can and must speak to power, not deferring to claims that innovation will be stifled or blackmailed by threats to relocate businesses to other jurisdictions. The rule of law is not, as one of Google’s founders once argued, simply an “old institution,”barnacle-laden and irrelevant. Law creates frameworks that allow for healthy innovation that is attentive to a range of societal goods, like privacy, security and continued human autonomy.

Finally, a rule of law in international society means that aggressive war is not simply accepted as an instrument of power. It can be challenged as unlawful in itself. And if the prosecution of a war brings torture, the abuse of civilians, mistreatment of prisoners of war, and the use of banned munitions, these individual actions can also be subjected to legal sanction. They are not just inevitable consequences of the horror of human combat.

None of these examples is straightforward, in the sense that the rule of law will be applied automatically, that reasonable behaviour will inevitably be restored. But in the absence of a modestly conceived rule of law, there is no standard against which bad actions can be assessed. There are no processes that we can deploy as we fairly judge the actions of our fellows and our public officials. Our forebears struggled over centuries to build a rule of law, in both national and international society. The rule of law is challenged widely today within illiberal societies and even within the supposedly liberal West. Yet, it can still be a bulwark against chaos and the undermining of human freedoms. But we need to act now in its defence.

A Rule of Law for Our New Age of Anxiety by Stephen J Toope

About The Author

Stephen J Toope

Stephen J. Toope OC, FRSC, LL.D. is President of the Canadian Institute for Advanced Research and Vice-Chancellor Emeritus of the University of Cambridge. Previously, Professor Too...

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