Thinking About the Rule of Law

 When Rudolph Giuliani called for a "trial by combat" on January 6, his hearers probably did not envision the ancient Germanic judicial ritual. Indeed, to judge from the number of supporters of the "Q" conspiracy theory attending the rally where he spoke, his call for "trial by combat" probably evoked, in at least some of his hearers, an imagined reckoning which, had it taken place, would have resembled the baptismal scene in "The Godfather", with Donald Trump reciting the oath of office as his surrogates systematically slaughtered his enemies. This displays a profound detachment from the rule of law; paradoxically, it also illustrates the importance of the rule of law. The Godfather movies chronicle the profound tragedy of a man drawn into a corrupt and violent system despite his intentions, and the baptism scene in that movie vividly illustrates, in its hypocrisy, the corruption behind the violence. To imagine a similar scene as a triumphant vindication, as the believers in "Q" appear to have done, with Donald Trump beginning his second term with a mass hanging following a military coup and unlawful tribunals represents a catastrophic corruption of the American imagination. 

The civility and prosperity of the United States rest on the rule of law. I doubt the Americans who chafe at Google and Amazon, Facebook and Twitter when they enforce terms of service under the law would like to live in a country where private militias operated with no legal restraints. Indeed, I honestly doubt most Americans who wave "Q" flags have any understanding of what life in the lawless imagined future of the "Q" fantasy would really be like. 

The outbreak of contempt for the rule of law we saw in the US capitol last month has many origins, not least the conduct of courts through the ages. For every Brown v. Board of Education, court records contain a Plessy v. Ferguson and a Dred Scott v. Stanford. For every Nuremburg tribunal, history records a clutch of Stalinist show trials or a national socialist Volksgerichtshof (people's court). Courts, as human institutions, human political institutions, have as dark a record as any. Before we rush to defend the rule of law as an institution, we have a question to answer: on what grounds does it make sense to trust the courts?

The courts can only serve the society that exists, and rule on the laws an existing society passes. Penning a constitution defining Black people as two fifths of a human will lead to Dred Scott and Plessy. The respect we show the courts arises not from the many occasions they reflect the vices of our society all too well, but from the moments they reach into the deep well of principle all good societies rest on, and render positive decisions, ones which lead rather than follow. As a corollary, the moral authority of the courts, as with any symbol having value, invites counterfeiting by the unscrupulous. Gangsters from Hitler to Stalin adorn their stooges with robes and proclaim them judges, and the sites of their hearings courts, but the Volksgerichtshof or the Moscow Trials provided only a crude pastiche of the dignity, discipline, and search for truth we associate with the rule of law.

While the idea of an "ideal" court may seem like a classic "no true Scotsman" fallacy, criteria for comparing an existing court, and indeed an existing legal system, to the ideal exist. Impartiality, honesty, and consistency define a good court and a working legal system. No court or system of laws ever fully reaches these ideals, but when the courts aspire to them, and when those aspirations guide court decisions, they add great value to society.

It is logical and prudent for us to accept judicial decisions we disagree with unless we can prove the courts made them in bad faith. Equally, though, when decisions contradict beliefs we cherish, finding the good faith in them takes work many people will not agree to do. Some of the conservatives appalled by the assault on the capitol had argued for supporting Donald Trump's presidency because of the judges he appointed; a transactional approach to the rule of law, in which the "right" people can get the "right" decisions by appointing the "right" judges. Unfortunately, behind this attitude lies the assumption the courts do not exist to seek the truth in an impartial manner, but function as just another political body, another arm of the state. This approach robs the institutions of law and justice of one of their most important functions: as one of the few fora in our society dedicated to finding the truth. Science, medicine, and law all seek for the truth using rigorous procedures and applying a code of ethics. We saw the effect of this in Mr. Trump's court cases, where the former president's lawyers made claims in press conferences they did not present in court. While we do not know for sure, it seems at least possible the penalties for lying in court prevented the more absurd of the Republican campaign's theories from coming before the bench, although some of the more absurd theories about the election have drawn actions for libel.

Plenty of commentators have described the former president's attitude to truth telling, from the image of a firehose spewing lies, to the more sedate but more chilling phrase "post truth". As long as the courts and the legal process retain their place as a haven for the ideal of the truth as a shared ground where people, even people who disagree profoundly or dislike one another deeply can meet, we have some hope for a civilized society. Without that, we risk fragmenting onto small groups, each with our own truth, each aiming to impose it on the other through means ranging from clever psychological manipulation to outright armed force.