Rule of law vs. rule by law

Chief Justice Beverly McLachlin of Canada made a useful distinction between the concepts of a "rule of law" and "rule by law" at the Global Forum on Liberty and Prosperity held last week under the auspices of the Supreme Court of the Philippines.

The distinction resonated in this country which has made a mantra of "rule of law" without really ascertaining that it’s not "rule by law" that we may have. The gracious lady Chief Justice (my only guest at a most interesting conversation on last Friday’s Viewpoints over ANC) wasn’t necessarily referring to the Philippines. At least I think she wasn’t. But most of us would grasp the difference pretty quickly.

Rule of law is a democratic concept which, if accepted by the people, means equal application of the law, to ordinary citizens, as well as the high and mighty, particularly in government. The rule of law recognizes no elite, much less class divisions in society based on wealth, "status" or educational attainment.

Law would then be an instrument of equality of opportunity and true justice, not a tool of oppression or privilege. In simple terms, one would not be able to use "law" as a way of perpetuating oneself in power, or of protecting economic or social privilege.

On this analysis, even Constitutions which on paper guarantee freedoms can be used, or manipulated, to violate or deny those freedoms. My political science professor in college used to run through a list of tyrannical governments whose elaborately worded charters seemed to provide iron-clad guarantees of democratic freedoms but wound up justifying the installation of dictators and keeping them there for life.

That’s because law can indeed oppress as well as liberate. It can impose limits on freedom, and take back what seems to have been freely given. It can resort to the supposed "will of the people" to enslave them, even plead "national" interest to entrench a few in absolute power.

Does all this sound familiar? Well, of course it does, because the role of law in our society is precisely one of the many "profound" debates raging in our country today. Do we know what the "rule of law" is all about? Or have we been merely mouthing platitudes to try to justify the actual imposition of rule by law over a supposedly naive and easily deceived people?

The debate takes many forms, not only in the occasional tendency of people who, like one of Shakespeare’s characters, want to "kill all the lawyers," especially those who seem too smart and overly loquacious for their own good. Sometimes the debate is over whether the law is only for the rich, and whether our courts are really just the playgrounds of the rich and powerful.

Or it can take the form of arguments over the use of "legal technicalities" to achieve desired political results, even when the outcome is criticized as, in effect, shutting down the search for an elusive truth.

But this was not what law was meant to be. Classical tradition describes law, for instance, as an ordinance of reason promulgated for the common good. On the other hand, pragmatic politicians warn us that in the same way that those who love frankfurters, or hot dogs, shouldn’t see how they are made, those who believe in laws shouldn’t have to see how they’re actually passed.

The impression is taking hold that laws are not products of reason and a burning desire to serve the common good, but the evil fruit of compromise and a pervasive lust to protect vested interests. The "art" of compromise is often referred to as the essence of politics, but it recently has also been cursed as the bane of responsible leadership and as the principal reason for political instability and widening poverty.

And haven’t you noticed how people reserve their utter contempt for legislators, at least most of them, save a "deserving" few who not only know their marbles, but are consumed by a mission to "serve."

It doesn’t help that one of the most basic problems of both our Senate and our House is the elementary issue of...the quorum or, put another way, absenteeism. Yup, many of our esteemed legislators, after having received the people’s mandate, evidently make it their business to be otherwise occupied when the business of the people calls.

Hey, but invite them to a radio or television interview, and they’re there before you can blink. Unless, of course, they have something to hide, at which point you get lame excuses that they are busy with non-existent committee meetings or have been "called to the Palace" for important meetings with the President.

Chief Justice McLachlin may not have known it at the time she delivered her message to the Global Forum on Liberty and Prosperity, but she may have given those who deride our system of law, as applied in fact and not in theory, a quite effective battle cry. Many feel that what we really have in this country is "rule by law," not the more rhetoric-friendly "rule of law."

Our "rule by law" is even a bit of an equal opportunity employer. It doesn’t matter, it seems, what administration is in power. They are all fervent orators on the rule of law but avid practitioners of rule by law. This is the case, it is argued, even when our leaders are the deposers of allegedly tyrannical and incompetent predecessors.

One final point: It’s a little ironic that Chief Justice McLachlin made the distinction between the rule of law and rule by law before some fellow magistrates whose home governments are, arguably, among the world’s great promoters of rule by law. But I hope they were listening to her, even as they were preoccupied with the at once esoteric and somewhat simplistic area of law and prosperity.

* * *

As I write this piece, I’m hearing on radio and television that the Supreme Court has just "junked" people’s initiative. I will withhold comment until I’ve read the decision itself and ascertained whether it puts the final nails on PI’s coffin, or leaves the door open for further "initiatives."

From the media reactions of the advocates of PI, they seem to be saying that a battle may have been lost, but the war continues. However, I don’t know whether they’re just putting on a brave face, or whether they really think they can still snatch victory out of seemingly ignominious defeat.