Neither Left nor Right but Catholic
The Erosion of the Rule of Law in Contemporary Western Culture
By Stephen M. Krason
We are familiar with the expression that free, representative political orders are “governments of laws and not of men.” This refers to the rule of law, a principle that was perhaps first clearly enunciated by Aristotle. As I have written in my book, Preserving a Good Political Order and a Democratic Republic, our Founding Fathers believed that the rule of law was one of the crucial principles that had to be upheld if a democratic republic, such as they fashioned, were to be maintained. The Church has also emphasized the importance of the rule of law in her social encyclicals. Sollicitudo Rei Socialis identifies respect for the rule of law as an indicia of the “health” of the political community (#44). Centesimus Annus says that a sound theory of the state and “authentic democracy” requires the rule of law (#44, #46).
Echoing many great political thinkers, Centesimus Annus explains that the essence of the rule of law is the restraint of governmental arbitrariness (#44). Law is truly what is sovereign instead of an individual or individuals. Rulers, like everyone else, must be subject to it, and it limits what they can do and how they can do it. That is what is meant by a government of law and not of men, and for obvious reasons is the essence of limited government.
History demonstrates abundant examples of the exercise of arbitrary, overreaching, and indeed oppressive power by those with the executive power of the state: kings and emperors at an early time, and despots who go under the modern titles of party chairman or president in our time. Of course, some kings, presidents, and even emperors have been benevolent and were known for self-limited power, but others were not. The phenomenon of runaway legislative power is also not unknown, even though it is supposed to be the “people’s branch.” Federalist 48 talks of the tendency of the legislative to bring all power into its “impetuous vortex,” and the Founders’ insistence about establishing a national government of separated powers was partly fueled by the abuses of one-house legislatures and weak executives in some of the states. Even though judiciaries are understood as having a central place in upholding the rule of law, the history of the Star Chamber in England illustrated what Federalist 78 meant that they too may become arbitrary and oppressive if their power is combined with either the executive or legislative. Indeed, the experience of post-1900 America makes one wonder if in contemporary times courts have not played a significant role in the very weakening the rule of law. Consider, for example, the U.S. Supreme Court’s opened-ended interpretations of constitutional provisions like the commerce clause and establishing of ersatz rights—based in little more than the views of a cultural elite—such as abortion, sodomy, and same-sex “marriage.”
A few news items of recent weeks drive home how the courts, public legal officials, and indeed the broader legal profession in the Western world are helping to undermine the very rule of law they are supposed to be on the cusp of upholding. In Italy, prosecutors have pressed charges of manslaughter against several of the country’s top earth scientists—and a judge let the case proceed—for failing to accurately predict a destructive 2009 earthquake. Of course, science does not have the capability of doing such a thing, but that did not stop the authorities. This case betrays an underlying perspective that has gotten hold of Western social, political, and legal thinking: somehow the perfect world can be forged—devoid apparently even of natural disasters—and that if it does not happen, someone must be responsible for it and pay the price. The view of the Italian officials in this case is not radically different from the Communist despots who destroyed millions because they stood in the way of their utopia on Earth.
In New Jersey, a public school district was forced to negotiate an arrangement with a Methodist organization whose hall it rented for commencement ceremonies to cover up all religious signs and symbols. It was pressured to do this by the ACLU, which claimed that non-Christians attending the ceremonies would feel uncomfortable. The Anglo-American legal tradition required evidence to bring the force of the law down on someone. In this and many other similar cases, legal advocacy organizations like the ACLU—and courts usually oblige them—require only vague, undefined, subjective “feelings.” If that is not the very “stuff” of arbitrariness, it is hard to see what is.
Finally, there is the on-going international legal saga of John Demjanjuk, the former Ohio autoworker who has been alleged to have been a brutal Nazi concentration camp guard during World War II. After his latest deportation from the U.S., the 91-year-old naturalized citizen was convicted in Germany last month of complicity in the murder of over 28,000 Jews. While the Demjanjuk matter is complex and it is possible that he committed heinous crimes, there have been a plethora of disturbing facts during its twenty-five years’ duration: mistaken identity (the reason for the Israeli Supreme Court’s overturning his capital conviction there in 1993), over-eagerness by the U.S. Justice Department to accept unverified evidence from Soviet authorities and suppression of an FBI report that crucial evidence was probably forged by the Soviets, and the withholding of potentially exculpatory evidence by the Department from Demjanjuk’s lawyers. The German court conviction was additionally troublesome because it involved no specific criminal acts, but just that he might have been at a particular extermination camp. One organization in Germany stressed the “symbolic” value of the prosecution. Many aspects of the Demjanjuk cases suggest imperviousness to evidence and truth on the part of legal authorities and an end-justifies-the-means approach. Commitment to the rule of law can hardly tolerate such an attitude.
Lest one think that such troublesome legal practices of the Western countries involved are unique to these cases, he should consider Paul Craig Roberts and Lawrence Stratton’s revealing and unsettling 2000 book, A Tyranny of Good Intentions. They write that contemporary American law has been overwhelmed by such developments as the erosion of mens rea (the legal rule that there must be criminal intent to secure a conviction), plea bargaining (over 90% of criminal cases never go to trial, and so prosecutors do not have to prove guilt), the use by prosecutors of uncorroborated information from prison inmates, the routine manipulation of grand juries by prosecutors so that they no longer serve to protect persons from false charges, and the general attitude of indifference by so many prosecutors about whether their targets may actually be innocent. Indeed, contrary to the canons of legal ethics, some are more concerned about convictions than securing justice. Outside the realm of criminal law, one witnesses the growth of vague and contradictory laws and government regulations. All this is a ready invitation to arbitrariness and a slap in the face at the rule of law.
What has led to this state? Simply stated, the decline of natural law as the basis of Western legal orders. Positivism rules, and with it man becomes the measure of all things. That means, all too often, that right and decent conduct go by the boards and that convenience, self-aggrandizement, the realization of ideological objectives, and even power take their place.
The rule of law in Western countries is increasingly a casualty of the dispensing with truth in public life, which Centesimus Annus says “easily turns into open or thinly disguised totalitarianism.”
Stephen M. Krason is Professor of Political Science and Legal Studies at Franciscan University of Steubenville and Co-Founder and President of the Society of Catholic Social Scientists.