Why the rule of law is a living culture
Not a constitutional abstraction
How many times in the last few years have we heard the last rites being read for the rule of law? The steady rise of authoritarian populism and the resurgence of nativist political narratives has been seen as a harbinger of the end of an era. Are democratic states still committed to the principle that even elected governments must accept certain constitutional constraints on their powers?
Anxiety that the end of the rule of law is nigh has been fuelled by the growing number of democratically elected governments which have sought to capture their countries’ constitutional courts, pack their judiciaries with political sympathisers, marginalise their parliaments, control their media, squeeze civil society and suborn or hollow out any independent institutions capable of acting as a check on the power of the elected executive.
But as these struggles come to a head in the European Union, in the showdown with Poland and Hungary over rule of law conditionality in the EU budget, events playing out in the United States are a useful reminder of the nature of the rule of law.
Episodes during President Trump’s four years in office have called into question the administration’s acceptance of the norms which together add up to a commitment to the rule of law: overt attacks on judicial integrity, abuse of the power of presidential pardon, inappropriate direction of independent law officers and Department of Justice lawyers. The charge sheet of the President’s offences against the rule of law has been logged by supporters of his own party, like George W Bush’s former speechwriter David Frum and campaign group Republicans for the Rule of Law.
Yet the President’s impotence following Joe Biden’s clear victory in the presidential election not only demonstrates the robustness of the US’s rule of law institutions, it reminds us that the rule of law is not some technical legal requirement that can be ignored by powerful demagogues, but a complex living culture, sustained by many different actors internalising a strong sense of their responsibility to uphold it. Consider the many thousands of electoral officials across the country who showed their commitment to delivering a free and fair election, and the courts which have patiently heard but dismissed the defeated President’s legal challenges. Together they have shown how deep-rooted is their commitment to legal process and to the independence of the judiciary.
Arguably, nowhere is this rule of law culture more deeply rooted than in the UK.
This country has by no means been immune from the pressures that have put the rule of law under strain in many other democratic states. The ruptures and dislocations inevitably involved in the UK leaving the European Union have thrown up many challenges for the rule of law. When the government attempted to bypass and even suspend parliament, the UK Supreme Court demonstrated its fearless independence, twice intervening to tell the government that it is a civil war too late to attempt to reassert the supremacy of the executive over the legislature. The rule of law requires that the executive is subordinate to the legislature, and it is the job of the courts to remind the government of that no doubt inconvenient constitutional fact.
And look what happened when the government introduced legislation (the UK Internal Market Bill) which asked parliament to authorise the deliberate breach of an international treaty very recently entered into by the UK. The Lords made clear by an overwhelming majority that they consider it their responsibility to uphold the rule of law by refusing to be complicit in such a flagrant repudiation of it.
The many eloquent and powerful speeches during the Lords debates on the bill reveal the essence of the UK’s historical commitment to the rule of law and the reason for its deserved international reputation. It rests not on some abstract constitutional statement or fetishisation of courts and lawyers. Rather, it depends on a very wide range of different actors feeling a shared commitment to a set of values which transcend narrow party loyalties.
The rule of law, in other words, is a living and breathing culture, a habit and state of mind instantiated by public participation in our national life. As such, it is a precious thing which must be cared for and rejuvenated by every generation. But in the UK it has shown time and again that it is sufficiently deep-rooted to survive short-sighted attempts by governments to set it aside for political advantage.
This article features in Prospect’s new legal report in partnership with the Bingham Centre for the Rule of Law, Jones Day and the City of London Corporation