A quick post to commit some thoughts from earlier to the page. Neither well researched nor patiently developed, here are some thoughts for today.
The “rule of law”, much coveted by liberals, is an illusion. It is neither prescribed by nature (or God!), nor can it be guaranteed by an all-powerful leviathan. The state is not a single entity, but a multitude of semi-independent institutional actors – the military, the civilian government, the police, the judiciary, the security services etc. – whose interplay dictates the law. The “internally valid” legal systems that appear to rule over Western countries is the result of a particular balance of power between these institutional actors, and an accord that has been reached amongst them – and for practical, not moral, purposes.
A volatile and unpredictable country would not be attractive to investors. A government that behaved erratically does not inspire market confidence. A lawless state where businesses and individuals behaved dishonestly does not inspire market confidence. So in order to attract capital, the state must be willing to enforce honest and predictable behaviour among citizens and businesses, and commit to such behaviour itself. And this desire for market confidence is not strictly limited to measurable, economic capital: it applies equally to social capital. People live happier lives under the assumption that others will comport themselves honestly and fairly, that their liberty and property will not be arbitrarily appropriated, and that nemo me impune lacessit. There is a general agreement between all the institutional actors to create a state high in market confidence for both economic and social capital, hence they each agree to restrict their actions and defer to each other in such a way as to create the illusion of the rule of law.
This accord between the institutional actors – that is properly called the constitution regardless of what might otherwise be written on a piece of parchment – is neither guaranteed nor automatically enduring. There is nothing stopping the military, at any time, from removing the civilian government from power by brute force. Regardless of what is written in the statute books, military tutelage is implicit in the constitution of every state on earth. But though the military, by virtue of superior firepower and a near monopoly on violence, is the only institutional actor whose consent is necessary for the status quo, it is not the only one capable of breaking ranks.
Both those who would be the civilian government – i.e. a political party – and the citizenry can at times become frustrated with the balance of power, feeling either that the “elite” (i.e. those already in power) are too compliant, or the judiciary too restrictive of civilian government to make any radical change possible. In response, they may seek to rebel against the current constitution.
An act of rebellion by an elected government (that patrician liberals would not doubt snootily deride as “populist”) would shatter the accord and plunge the country into a constitutional crisis; or in other words, a power-struggle between the civilian government and the judiciary. The government would have a mandate from the people, while the demands of the judiciary (that the government immediately abandon its course) would represent the most parsimonious avenue back to stability and market confidence, What it is important to note here is that neither side has a monopoly on legitimacy, and that what legitimacy the judiciary has is purely pragmatic, not moral.
A constitutional crisis ends when a new accord is reached: either one side forces the other into submission, or a compromise is reached. The winner in a constitutional power struggle between the civilian government and the judiciary will often depend upon which other institutional actors – domestically and internationally – it can rally to its side; and of course the military, should it choose not to remain impartial, will ultimately have the casting vote.
Though the judiciary cannot legitimately claim the moral high ground in a constitutional struggle with the civilian government, it does not mean such struggles are devoid of legitimate moral argument. In a democracy, it is posited that the citizenry, as a collective, is “sovereign”. Here in Scotland, such is expressed in the Declaration of Arbroath, where it is said of Robert Bruce:
Yet if he should give up what he has begun… we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours, and make some other man who was well able to defend us our King…
If we are to accept that our people have a right of rebellion against a king, why not a constrictive constitution overseen by a judiciary?
The purpose of the rule of law, as established above, is to ensure predictability and maintain market confidence in both social and economic capital. It is intended, in other words, to enforce a social contract between citizens. But by denying people what they voted for, or restricting the sovereignty of parliament, the judiciary is in effect imposing a contract on the citizenry as a collective, which is supposed to be sovereign and thus superior to the judiciary. I therefore posit that, provided an elected government is genuinely enacting the will of the people (e.g. by fulfilling detailed manifesto promises), it shares with the citizenry a moral “right of rebellion”. And provided it conducts itself competently and seeks to resolve any succedent constitutional crisis as swiftly and cleanly as possible, such a rebellion is nothing much for democrats to fear.
The fetishisation of the rule of law is part of a worrying trend among modern liberals that takes ideas originally adopted for their practical value – democracy, the rule of law etc. – and turns them into symbols of moral righteousness, even moral superiority, and hopes the savages who live in ignorance in far-off lands can one day be patronised into enlightenment. The desperation to always have the moral high ground not only radical distorts our perceptions domestically, but also makes it infinitely harder to promote such ideas abroad.