News such as the recent federal court decision against President Donald Trump’s proposed travel ban and James Comey’s public Senate testimony serve as occasions for outrage among critics about the president’s disrespect for “the rule of law.”
Many prominent lawmakers, law professors and journalists, among others, see the new administration as flouting this cornerstone value of American legal politics.
But what is the rule of law?
As a lawyer and political scientist who studies this question in diverse Arab countries and elsewhere, I can affirm that the answer is not obvious. The rule of law means a variety of things within and across countries. And they are not always consistent.
This helps make sense of the fact that Trump and some of his supporters may actually endorse one version of the rule of law. It just happens to be a version more dominant in nondemocratic political systems.
Meanings of the rule of law
Like “democracy” or “equality,” the rule of law is a popular ideal, but not always a clear one. For this reason, United Nations officials have tried to define it. Prominent organizations like the World Bank have measured it through basic indices, or multifaceted criteria, such as civil rights, order and security, constraints on government power and absence of corruption.
Yet using an appealing phrase to describe different social phenomena can have real political consequences.
The “rule of law” has at least two broad definitions that exist in obvious tension.
One is a dominant dogma of American political history, as conveyed by Founding Father John Adams’ succinct phrase: “a government of laws, not men.” The idea here is basic. Government leaders, like all citizens, should not be above the law, but bound by it. This means, for example, that a U.S. senator who extorts money is no more immune to being charged with this crime than an ordinary American.
A second possible meaning, in tension with the first one but present in democracies nonetheless, is that law ensures that people obey government.
Law over leaders
Let’s first consider the rule of law as John Adams and the U.S. Constitution’s framers defined it.
The U.S. Constitution and courts’ mandate to review specific laws define the rule of law as a value and a set of procedures that provide legal protection to all Americans. The framers of the Constitution stressed in Federalist 78 the need for judges with autonomy from politics who could defend fundamental citizen rights. Equality under the law was popularized as a foundation of the rule of law in the wider English-speaking world by the 19th century.
This has not meant that all Americans, in fact, enjoy equal legal resources. Nor has it prevented powerful individuals or groups from using laws to their advantage. Nonetheless, institutions that enforce the idea that legal rules and procedures bind everyone, including leaders, are central to the U.S. and other countries. The expectation that rules will be applied to everyone also underpins the contemporary global legal system.
The rule of law, understood as laws over leaders, takes on added significance in the U.S. Here, a comparatively large proportion of people become lawyers. In turn, many lawyers become bureaucrats and politicians. American leaders with legal training are educated to focus on specific rules, procedures and close reading of legal texts.
Because of this, many government officials and members of the private and public-interest law firms who rotate in and out of government care about details of legal rules, procedures and transparency. A leader like Trump, whose tweets denigrate the neutrality of American judges, who refuses to submit to the same expectations of his peers or other citizens and who appears to interfere with an important legal inquiry, raises the hackles of other lawyers and politicians.