No One Above the Law
The rule of law is, as legal scholar Adam Tomkins recently put it, “an essential component of a constitutional order.” Tomkins defines it as “the idea that there are limits imposed by law on power; that the powerful may not simply rule through whatever whim occurs to them today; and that those in positions of power, authority, or leadership are constrained—in theory and practice alike—by legal limits.”
Constraint on the whims of the powerful is certainly one crucial function of the rule of law. In an essay in the inaugural issue of the promising new journal The Vital Center, Thomas D. Howes makes the interesting point that the emergence of constitutional order reflected in the rule of law took the edge off a centuries-long controversy over the ethical problem of resistance to tyranny within a culture of respect for political authority.
It is true that some of the scholastics, like Suárez, promoted some kind of mixed regime, just as Aquinas did. But they never fully escaped the model of what Martin Rhonheimer calls a sovereign’s “rule by law,” rather than the “rule of law” present in modern constitutionalism, the essence of which is, as Rhonheimer puts it, the “institutionalization of the right of resistance.” If later Catholic authorities, like Pope Leo XIII, could then downplay the right of resistance, it was because, as German natural law theorist Heinrich Rommen notes, its “political functions . . . were taken over by modern constitutionalism.” And if Jesuits no longer needed to give detailed—bordering on scandalous—defenses of tyrannicide, that was because real institutional progress had been made.
That is to say, in the modern period, those living under constitutional regimes enjoyed the luxury of avoiding agonizing questions regarding the obligation to resist tyrants by force, because the rule of law provided peaceful means of achieving the same end. There were now institutions that kept rulers in check and provided redress for oppressed peoples. Twentieth-century exceptions underlined the point. Where constitutional norms broke down and tyrants resurfaced, violent resistance once again became a live issue among conscientious Christians—as was seen in Hitlerian Germany in the thought of the Lutheran Dietrich Bonhoeffer and the actions of the Catholic Klaus von Stauffenberg.
Tomkins also stresses the importance of “hard and fast rules” versus “open-ended standards,” because permitting authorities to depart from rules in favor of the pursuit of higher principles furnishes a latitude that is too easily abused. This is certainly a danger with ample historical illustration, nowhere more so than in the farcically “democratic” regimes of Communist Eastern Europe. As Rainer Zitelmann’s 2023 In Defense of Capitalism recounts, East Germany “won praise from environmentalists the world over for including environmental protection in its constitution in 1968.” Dominic Pino’s review of the book summarizes Zitelmann’s narrative:
The East German government designated all environmental data as classified beginning in 1974, and after 1982, only a handful of top-ranking officials were permitted to view it.
After the fall of the Berlin Wall, the truth came out: East Germany was an environmental disaster zone. It emitted more than three times as much carbon dioxide per unit of GDP as West Germany and ten times as much sulfur dioxide and airborne particles per square kilometer. Half of the major rivers in East Germany were biologically dead, and 70 percent were not safe to drink from.
As the East German environmental debacle shows, a vaguely worded constitutional commitment is not enough; what is needed are clear and enforceable rules.
But this incident also points to another facet of the rule of law: the importance of culture. Even if East Germany had created a library full of environmental laws, those laws would have accomplished nothing if the majority of political authorities and citizens did not consider themselves bound by them. Bribery of government officials is technically illegal almost everywhere in the world, yet there are vast discrepancies between the levels of corruption among nations, and even among localities within nations. Institutional composition has something to do with that, but culture is also a big part of the story.
In 2023 South Sudan, with Syria and Venezuela, was ranked by Transparency International as tied for 177th—the most corrupt nations in the world after Somalia. We get a glimpse of how this plays out in everyday life from an episode related by a Christian missionary visiting a local market:
Health Ministry officials entered Mamour’s shop where I was waiting. At first, just two women entered, and it appeared they were shopping. They seemed to be very engaged on the expiration dates. Then two men enter, and then another woman and another man. They are all taking things off the shelves and looking at expiration dates. Even non-consumables cannot be over the expiration date! One guy grabs three popcorn tins and says he will destroy them, as they were one month over the expiration. One of the ladies opens a bag of expensive chocolates and starts passing them out to her colleagues.
When they left, I asked Mamour what that was all about. He said it was the monthly inspection by the Ministry of Health for expiration of foods. They always charge a fine of about three dollars even if nothing is out of order. They also ask for “water” money. They also take expired goods as mentioned, and of course no one believes they will destroy these “expired” articles.
Doing business in South Sudan is not easy. There are such “checks” every month. Mamour informed me that he often has visits from city tax collectors, county tax collectors, state tax collectors, and many other “departments of the government.” He is not sure where the money goes, as he is never given a receipt for the cash he is forced to pay.
People in relatively wealthy and stable nations such as the United States may well be grateful that they are not faced with this level of lawlessness. While one need look no further than the latest news cycle to find examples of corruption and disregard for the rule of law in “clean” nations as well, the difference in degree and scale between say, Venezuela and Canada, or South Sudan and Germany, is enough to affect substantially the quality of life in these places. The proof can be found in how people “vote with their feet,” as migrants flee nations with weak rules of law and pour into nations with strong ones.
But the gulf between the United States and Somalia is less reason for self-congratulation than it is cause for reflection. As Americans’ levels of trust in the country’s institutions plummet and government regulation reaches levels of complexity impossible to comprehend, there is danger that the culture of respect for law that is necessary to sustain a free society will weaken to a breaking point. Where citizens fail to honor the rule of law voluntarily, state power normally increases to fill the void (see, for example, the recent deployment of New York’s National Guard to restore order in the New York City subway system).
“Liberty is the delicate fruit of a mature civilization,” Lord Acton said. There is no guarantee that such maturity will not fall into decrepitude, and the demise of the rule of law is one sign of such failure. A society without law is not one characterized by exceptional freedom but one given over to the rule of despots, large and small—as many Venezuelans and Somalians (and New York subway riders) could attest.
Kevin Schmiesing is research director at the Freedom & Virtue Institute and editor of the Freedom & Virtue Review.