The rise of populist authoritarianism on the right around the world unsurprisingly comes alongside an agenda to characterise liberalism’s achievements as either overstated or harmful, after the left spent decades characterising them as inadequate or oppressive. Constitutionalism and the rule of law, as liberal phenomena, are the next target.
Adrian Vermeule is in many ways the leader of the authoritarian right in jurisprudence. That he would seek to divorce the “rule of law” – long prized for its formal appeal with scant substantive follow-through – from the philosophy of liberty is to be expected.
In reality, these concepts are inextricably linked: there is no liberalism without the rule of law, and there is no rule of law without liberalism.
Vermeule cites the mere existence of “law, law codes, legal customs, law courts, and legal judgments” in pre-liberal societies as evidence of his claim. But the rule of law is not merely the existence of laws or legal(ish) institutions. It is the principle that “the law rules” – which means it rules to the exclusion of not merely the charismatic leader of the people, but to the exclusion of the people themselves as well. It is the law, not the dictator, the community elder council, or the masses, that is sovereign.
This is a liberal insight, regardless of whether those who first had this insight conceived of or called themselves by that name.
State power must be subject to legal limitation, ensuring that governance is not driven by the whims or caprice of the powerful. This notion was completely alien prior to the advent of liberal constitutionalism, when the law – very much in existence – was largely regarded as separate from politics and governance. Law was private, and governed relations between people, and between people and their things. It was not public – it did not govern the relationship between the people and the political authority.
As the old common law principle went: the sovereign is not bound by the laws.
This did not mean, of course, that every government before modern constitutionalism was a Nazi-esque totalitarian hellscape. Law is not the only limiting factor in politics. Many governments restrained themselves or were restrained by countervailing popular power, for example.
But the notion that “the law”, as an abstract institution without self-executing capabilities, was a limitation on the power of the state is an insight exclusively ascribable to the legal philosophy of constitutionalism, which arose alongside (indeed joined at the hip) the political philosophy of liberalism.
The mere presence of law codes or courts, in other words, as in the Roman Republic or other pre-liberal societies, does not constitute the rule of law as almost everyone – left or right – understands it today.
Older systems
As Leonid Sirota aptly points out, Vermeule’s reliance on such examples ignores the fact that these older systems often failed to meet the basic requirements of the rule of law, such as laws being known, intelligible, and consistently applied. The Romans did not see themselves as “failing” to adhere to the rule of law, of course, because they had no conception of the rule of law.
We understand today, unlike the Romans – who nonetheless deserve far more praise and recognition for their contribution to law as understood around the world – that for the rule of law to be present, the law must be knowable, accessible, unambiguous, certain, reasonable, and proportional.
These requirements are not mere Western constructs or modernist contrivances. They are evident from the logic and essence of law itself.
If legal subjects – those thought to be bound to obey the law – cannot know or understand the laws they are expected to obey, or if those laws are applied inconsistently or retroactively, the very concept of law is necessarily undermined.
South Africa’s Covid-19 lockdown regulations, for example, were often phrased so incoherently, and changed so often, that it was difficult even for trained lawyers to keep up. The masses of people who were thought to be bound by them had no hope in Hell, and simply and necessarily deferred to whatever the authorities declared (on television or over the radio) the law to be in that moment.
These regulations could never qualify as valid legal rules, which is what the rule of law helps us to perceive.
Similarly, to take it back to Vermeule, detaining someone and then deporting them because they are “suspected” of being affiliated with a gang – without this “suspicion” being paid off in open court with evidence – or denying that those who hitherto have been regarded as citizens are citizens, could never qualify under the rule of law standard.
Why? Because there is no way for legal subjects to comply: they do not know (before being told) that they are “suspected” of being affiliated with a gang, and they are not given the opportunity to rebut that suspicion in court. Law is, in other words, effectively made in the mind of the law enforcer in the moment. It is not the law that rules, but the enforcer. It is the rule of man, and while the garb of “law” might be utilised, law-properly-conceived is nowhere to be found.
There is no rule of law in a dictatorship, which is self-consciously the rule of man, nor in an unqualified democracy, which is simply the “rule of many men”.
Principles, requirements and values
Only where the law is recognised as an extra-political phenomenon, independent of the agendas of those in power, can the rule of law be thought to be present. Legislatures, indeed, still “make law”, but this is not “The Law.” “The Law” (ius) is a set of principles, requirements, and values, into which the lesser “laws” (lex) of daily politics must slot in.
This idea is fundamentally liberal, as it presupposes the state is constrained by law to protect the inherent liberty of its subjects.
Sirota’s critique of Vermeule’s motte-and-bailey argument is particularly incisive.
Vermeule’s “motte” is the banal observation that pre-liberal societies had legal systems, which no serious thinker disputes.
His “bailey,” however, is the indefensible claim that illiberal regimes can sustain the rule of law as effectively as liberal ones, thereby excusing authoritarianism. This has never been true.
No argument can be sustained that any equivalence ever existed between the legal systems of Nazi Germany, Soviet Russia, and Communist China on the one hand, and the United Kingdom, the United States, or Canada on the other. In the latter countries, though certainly imperfect and worsening by the day, one can seriously talk of “the law” as a phenomenon partly distinct from whoever happens to have a majority in the legislature. In the former countries, any reference to “the law” was nothing less than a reference to the power of the incumbent regime.
Even in China today – certainly much better than half a century ago – what passes for “the law” is often no more than a suggestion subject to the discretion of the local party official. This happens in the West too, to be sure, but there is a widespread understanding that this is “wrong,” whereas in China it is consciously baked into the system.
Over and above this, it has been my submission that adherence to the widely agreed-upon requirements of the rule of law can only produce a liberal dispensation.
If law is written and administered strictly to be knowable, accessible, unambiguous, certain, reasonable, and proportional, and all these are regarded truly as binding prerequisites before dictates could qualify as law, I do not see how anything other than a liberal order results. I have called this phenomenon “basic justice”.
Critical linkages
Vermeule’s claim that the rule of law could thrive in the absence of liberalism ignores these critical linkages.
The rule of law is an exercise in ensuring that laws are made, interpreted, and applied reasonably, with clear justification that avoids arbitrariness. This requires a state that is limited in scope and power, a hallmark of liberal constitutionalism. Without liberalism’s emphasis on limited government, the rule of law is reduced to rule by law – a system where laws exist but serve the ruler’s interests rather than themselves being the source of the ruler’s authority.
As Sirota argues, Vermeule’s vision of an illiberal rule of law is a fantasy, if not a deliberate misrepresentation.
The rule of law seeks to minimise arbitrariness in public law, ensuring that the state serves as a guardian of liberty rather than its oppressor – actually serving Vermeule’s “common good,” as opposed to serving the sectarian “good” of the few, or even of the many, at the expense of everyone. Everyone can only be served by a system of basic justice, which is the inherent consequence of applying the rule of law as virtually every legal thinker understands it today.
[Image: https://www.flickr.com/photos/sniegowski/24443863480]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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