Commentary on Political Economy

Tuesday, 29 August 2023



The rule of law is in more trouble than demo­cracy

Had Don­ald Trump “found” those extra bal­lots in 2020, do we think the 81mn Amer­ic­ans who voted for Joe Biden would have shrugged and moved on? Or that fed­eral civil ser­vants would have car­ried out the exec­ut­ive orders of the loiterer in the White House? Or that allied nations would have treated him as the right­ful US leader, in defi­ance of Demo­cratic com­plaints (and, no doubt, warn­ings about future dip­lo­matic rela­tions)?

Some, per­haps. But even if a sub­stan­tial minor­ity of each of these groups had pro­tested or with­held their co-oper­a­tion, it would have been para­lys­ing for the admin­is­tra­tion.

Because the emer­gence of Trump and other dem­agogues has been such a shock to lib­er­als over the past dec­ade, one con­sol­ing thought has got rather lost. As a tech­nical feat, at least in the mod­ern west, a coup d’état is unima­gin­ably dif­fi­cult to execute. Demo­cratic norms are more entrenched now than in the inter­war march-on-Rome era, com­mu­nic­a­tions tech­no­logy more dif­fused, non-par­tisan bur­eau­crats more plen­ti­ful, for­eign scru­tiny more exact­ing.

As much as Boris John­son squealed and wriggled last sum­mer, he had no mech­an­ism to remain UK premier in defi­ance of his own MPs, much less the wider king­dom and its insti­tu­tions. A coup is, we can hope, just too con­spicu­ous and pro­voc­at­ive a crime to last.

A subtler, almost invis­ible men­ace is the cor­ro­sion of the rule of law. Were Trump to be con­victed of one or more of the crim­inal charges against him, a large minor­ity of Amer­ic­ans either won’t believe in his guilt, or won’t mind it. Tens of mil­lions of cit­izens who hold the judi­cial sys­tem cheaper than one man: that is a more present threat to the repub­lic than a coup. Over time, it might tempt the gov­ern­ment to not enforce the law, lest it inflame people or mar­tyr the alleged crim­inal.

Being above the law is a famil­iar enough concept. Repub­lic­ans would cite Hunter Biden. But there also seem to be wrong­do­ers who are under the law: that is, too expens­ive or small-time to pur­sue. This week, as though unveil­ing a space-age crime-fight­ing innov­a­tion from a Chris­topher Nolan Bat­man film, Bri­tain’s home sec­ret­ary asked the police to invest­ig­ate all repor­ted thefts and to fol­low all reas­on­able leads. Police chiefs have described it as a “mile­stone” that officers would attend the scene of all domestic burg­lar­ies.

San Fran­cisco’s record of tacitly tol­er­ated crime is part of its mas­ter­class in urban mis­gov­ern­ment. When protests against pen­sion reform in France this year took on a viol­ent edge, the tone of some domestic and for­eign com­ment­ary was that Emmanuel Mac­ron shouldn’t be so pro­voc­at­ive.

The thread here is com­pla­cency about the primal import­ance of order. And it extends to what, with cli­mate change and the US-China feud, is the sub­ject of the cen­tury.

Lib­er­als, no less than nat­iv­ists, should oppose the irreg­u­lar arrival of asylum seekers. Their des­per­a­tion is evid­ent, their vili­fic­a­tion foul and their oppor­tun­it­ies for legal refuge scarce. Something can be done about at least the last two of these prob­lems. But the pop­u­lar impres­sion can­not be allowed to set in that crim­inal laws, let alone ones per­tain­ing to national bor­ders, are so much idle paper. That way lies not just free recruit­ment work for the far right, but the pois­on­ous notion that obey­ing the law is a mug’s game.

When the writ of the state fails to run, the prob­lem goes bey­ond the spe­cific crime being com­mit­ted to the wider atti­tude of hope­less­ness and ego­ism that it instils. It is the for­mula for a low-trust soci­ety. Their motives dif­fer, but those who would let shoplift­ing slide (because police budgets are tight) and those who would min­im­ise a “con­spir­acy to defraud the United States” (because their hero is involved) are part of the same civic rot. A found­ing cry of mod­ern­ity — liberté, égalité, fra­ternité — made no men­tion of sécurité or l’ordre, without which noth­ing else is pos­sible. This intel­lec­tual blind spot for the rule of law is excus­able. It is a hard concept to define. It isn’t inspir­ing, con­sist­ing as it does of pro­hib­i­tions and sanc­tions, backed by viol­ence.

But the west was law-gov­erned before it was demo­cratic. (The uni­ver­sal fran­chise is about a cen­tury old.) And if the rule of law was earlier to arrive, it is also shap­ing up to be the first to go. It is hard to ima­gine a west­ern nation ceas­ing out­right to be demo­cratic any time soon, if we under­stand this to mean that it would no longer have fair elec­tions whose res­ults are enforced. Chaos, though? Entropy? Those are easier des­tinies to pic­ture, at times by just look­ing around.

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