There is an oft-quoted legal dictum known as “The Rule of Law” that posits that all people are equal before the law regardless of status or standing, and that all must obey the law. How then (one must ask) does such a widely-held principle conform to the recent ruling of the US Supreme Court that a President (such as Donald Trump) should be immune from prosecution for acts that would normally be considered to be illegal?
The concept of “Rule of Law” has many sources. In Europe it derived from Roman-Dutch law and the Magna Carta of 1215, which recognised the principles of freedom of person, equality before the law, and that the sovereign should be bound by the same laws that bind the people. Elsewhere in Europe such principles were also being incorporated into national laws. In Sweden in 1350 the National Law Code of Magnus Erikson included the injunction that:
[The king should swear] to be loyal and faithful to all his countrymen, so that he shall not deprive anyone, poor or rich, in any way, of his life or limb, without a lawful inquiry, as laid down in the law and the justice of the country, or deprive him of his property, except according to law and lawful trial.
In Poland in 1551, A.F. Modrzewski noted in his De Republica Emendanda that:
It is right, therefore, that kings as well as every public official should be ruled by Law, so that they may thereby preserve themselves from the influence of the passions, and make it a criterion wherewith to govern themselves and their peoples alike.
In Islamic countries Shariah law was enshrined as a universal guide to even the most intimate aspects of everyday life. It also regulated relations and disputes between individuals irrespective of status or belief. Shariah applied equally to all Muslims, including the ruler – and, despite occasional explorations by the caliphs into notions reminiscent of the early European “Divine Right of Kings”, Islamic scholars defined caliphal rule as “nomocratic”, that is, government in accordance with a system of law.
Such principles were also recognised in many parts of Asia even earlier than in Europe. Kuan-tzu, writing on “Legislation” in third century BC China, exhorted his countrymen:
Never alter a law to suit the whims of a ruler; law is superior to the ruler.
The concept of the Rule of Law, therefore, has wide historical and geographical relevance. Moreover, it is clearly not restricted to particular cultures or belief systems, a fact recognised by the International Commission of Jurists when it injected a notably internationalist tenor into its deliberations at its conference in New Delhi in 1959:
The Rule of Law… may therefore be characterised as “The principles, institutions and procedures, not always identical, but broadly similar, which the experience and traditions of lawyers in different countries of the world, often having themselves varying political structures and economic backgrounds, have shown to be important to protect the individual from arbitrary government and to enable him to enjoy the dignity of men.
Nevertheless, the common view of Rule of Law (that governments and those who wield power should be bound by the same laws that bind ordinary individuals) is further complicated by the fact that not all laws are meant to be universally applied. Sometimes justice requires that the less-powerful have greater protection. Note, for example, the more recent inventions of Administrative Law and Consumer Legislation which aim specifically to make governments and bureaucrats more accountable to the people or to regulate large corporations and companies in order to protect consumers. Conversely there have been instances where laws have been enacted in such a way as to target, often obliquely, minority groups – sometimes to their extreme detriment. Indeed, jurists in both Hitler’s Third Reich and Mussolini’s Italy revelled in the mass of legislation that governed every aspect of citizens’ lives and suggested that those states were, as a result, “exemplary law-states”. Rule of Law was thereby turned into a grim mockery.
Of course, the recent ruling of the US Supreme Court was not the first time questions of presidential immunity have arisen in the US; Richard Nixon’s Watergate scandal and Bill Clinton’s sexual assault lawsuit also spring to mind. But this is the first time a former US president has been indicted on criminal charges.
The worth of the rule of law inevitably depends upon the quality and independence of the judiciary, particularly if in conflict with an obdurate ruler or government. The fact that three of the nine judges in the current US Supreme Court were actually nominated and appointed by Donald Trump could therefore possibly be regarded as significant when we consider the degree of independence of such a body.
So it can be seen that, in reality, while the existence of the rule of law (in its most fundamental definition) may help to protect the democratic process, it does not of itself guarantee it. The significant qualifying principle becomes clear with the addition of one word: “the just rule of law”. It is not enough merely that a government should govern in accordance with rules; if human rights are to be safeguarded the rules themselves must be just. Justice requires the importation of principles that arise under other labels, such as peace, freedom and egalitarianism, which are echoed in and supported by the Rule of Law, thereby creating a necessary balance.
It seems that the nature of modern American democracy has been so imbued with the ethos of self-professed “American Exceptionalism” that the word “just” has lost its relevance in its legal system. Given the carte blanche that appears to now be available to the President of the United States with respect to law-breaking, and the significant limitations put (for example) on whistle-blowers such as Julian Assange, Edward Snowden and Chelsea Manning, one cannot help but question the future of this all-powerful nation.
A more detailed commentary on the concept of Rule of Law, co-authored by Adrian Lipscomb and Nicholas Cowdery, can be found in an article entitled “The Just Rule of Law” in Southern Cross University Law Review, Volume 4, December 2000.
Adrian Lipscomb
Adrian Lipscomb is a retired lawyer, travel-writer, academic and political observer. During the 1980s he worked in policy areas with the Department of Defence in Canberra and with the Joint Intelligence Organisation (JIO – now called the “Defence Intelligence Organisation”). In the mid-1990s he volunteered in the Solomon Islands, and was the co-ordinating author of the 1998 edition of the Lonely Planet Guide to PNG. In 2015 he was awarded the OAM. He currently lives in Urunga, NSW.
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