For the past several months, political pundits — especially those of a liberal bent — have been using the phrase “the rule of law” with some regularity. They seldom bother to define the phrase, assuming that their readers will understand that it refers to a good thing for a country to have, and therefore agree with them that the Trump administration’s threats to it should to be viewed with alarm.
The specific charge that the pundits usually make is that Trump regards himself as “above the law.” That points to the essential idea of what is usually called a “formalistic” conception of the rule of law. According to that conception, a country operates under the rule of law if it has a comprehensive set of laws that are generally known to the public, logically consistent with one another, apply to all citizens equally, and are accompanied by a police and judicial apparatus that assures that they will be enforced.
Unfortunately, that conception does not guarantee that a country that can legitimately claim to observe the rule of law would be a good country to live in. An authoritarian president may exercise control over a legislature and dictate the laws it creates. Consequently, nothing in the formalistic definition prevents there being a law requiring, for example, that anyone who publicly criticizes the president shall be sent to prison. In other words, the formalistic conception ignores matters such as how the laws are created, what the contents of the laws are, how powerful the leader of the government may be, and a number of other features that are crucial to good governance.
Because of this drawback, there are alternative conceptions of the rule of law that are called “substantive.” These descriptions are considerably more complex, and incorporate a more detailed account of all the factors that contribute to creating a governmental system that is just, resistant to misuse and trustworthy.
Here are some elements of just such a substantive conception, in this case one formulated by the World Justice Project, (WJP), a non-profit, multidisciplinary, international organization dedicated to promoting the rule of law.
For the WJP, in a state that follows the rule of law, the laws, in addition to having the formal qualities mentioned above, must “respect core human rights established under international law,” including the right to life and security of person; due process of law and the rights of the accused; freedom of opinion, expression and religious belief; the right to privacy, freedom of assembly and association, and fundamental labor rights, such as the right to collective bargaining, prohibition of forced and child labor, and the elimination of discrimination.
An important measure of the adequacy of the rule of law is “the extent to which those who govern are bound by law.” A country’s laws (both constitutional and institutional) should be able to ensure “…that no single organ of government has the practical ability to exercise unchecked power.” There must be “institutional checks on government power by the legislature, the judiciary and independent auditing and review agencies, as well as the effectiveness of non-governmental oversight by the media and civil society.”
Another measure is the degree to which the laws prevent governmental corruption, i.e. “bribery, improper influence by public or private interests, and misappropriation of public funds or other resources.” No government official, under the rule of law, whether in the executive, judicial or legislative branch of government, should be allowed to use public office for private gain.
The WJP regards “open government” as another facet of the rule of law. A government must make public all laws and regulations and grant requests for information held by its agencies, thereby providing the public with tools to hold the government accountable, and to “foster citizen participation in public policy deliberations.”
Under the rubric “Regulatory Enforcement,” the WJP also includes the stipulation that government regulations must be “applied and enforced without improper influence by public officials or private interests.”
There is much more to the WJP’s account, but perhaps I have provided enough of it to suggest just how extensively the rule of law has been under attack by the Trump administration. Trump has violated the human rights of would-be immigrants and imperiled the rights of female U.S. citizens by installing federal judges on the basis of their political and religious convictions rather than their judicial skills.
He has sought to evade the established constraints upon his power: refusing to cooperate with lawful congressional oversight by denying its requests for documents and testimony; by attempting to obstruct the Mueller investigation; by bypassing congressional authority both in acquiring funds for his wall and fomenting conflict with Iran without congressional consent.
He has misused the pardon power of the president, freeing a racist sheriff and U.S. soldiers duly convicted of war crimes. He has recently appointed an attorney general who serves his interests, rather than those of the American people, and has regularly attacked the FBI and undermined its independence..
He has repeatedly characterized the media as the “enemy of the people” and is now, as implied by the government’s second indictment of Julian Assange, threatening future prosecution of American journalists for publishing leaked information.
He has engaged in corrupt practices, installing agency heads who have utilized their power to promote corporate interests and personal gain. He himself has profited from his position by welcoming assistance in his political campaign from an enemy nation and, after his election, benefiting from what amount to bribes from foreign governments.
In sum, to characterize Trump’s betrayal of the rule of law as consisting in his belief that he is “above the law” is to seriously underestimate the scope and depth of that betrayal. I suspect that Trump himself would be offended if we did not, as the old saying has it, “give the devil his due.”
Leonard Hitchcock of Pocatello is an alumnus of the University of Iowa and did graduate work at Claremont Graduate University and the University of California, San Diego. He taught philosophy in California and Arizona for 15 years. In 1985, after earning a library degree, he was hired by Idaho State University. He retired from ISU’s Oboler Library in 2006.