Who upholds the rule of law?

The concept of the rule of law is frequently linked with the conduct of government representatives, prosecutors, and judges, yet common individuals also share the duty of maintaining the ethical and legal values of a community, states Jeremy Waldron, a professor at New York University School of Law.

A “delicate” yet “precious and workable principle,” the rule of law requires the government to adhere to a “moral obligation” to enact laws respectfully and guide citizen behavior, while simultaneously “honoring the autonomy” of those impacted by such laws, Waldron, an expert in legal and political philosophy, contended during the Edmond & Lily Safra Center for Ethics’ annual Kissel Lecture in Ethics on Thursday.

For average citizens, backing the rule of law encompasses more than merely refraining from violating it, he remarked.

“If authorities and their representatives are limited, then we, as voters, citizens, and party affiliates, ought to be limited as well in what we advocate for, in what we elect, in what we fund and organize for, and in the pressures we exert on the government.”

Complying with the rule of law entails using the judicial system in good faith, not for settling scores or procuring personal, political, or economic gain, Waldron further explained. It also necessitates patience with officials who navigate the often slow and technical nature of the legal process, in addition to accepting actions we may disagree with.

“When an unfavorable ruling is issued to a citizen or an official, they often take to the courthouse steps exclaiming, ‘This is unacceptable, and I will appeal,’” he stated. “Perhaps we should not instantly condemn adverse decisions on the courthouse steps and shift promptly to appeal. Maybe we ought to gracefully express a willingness to contemplate the judgment and consider our options in a responsible fashion.”

Waldron remarked that citizens contribute to the enforcement of the rule of law in various capacities — as jurors, witnesses, and civil complainants. Additionally, as voters, they have a duty to refrain from allowing self-interest to hinder them from holding officials accountable, he said.

“If compliance with the law incurs costs for the state and thus, for the taxpayer, we should be prepared to accept those costs. Or if it leads to missed chances for officials to bestow benefits upon us or alleviate burdens from us, then it is the responsibility of the ordinary voter not to advocate for the sidelining of the rule of law for those reasons, nor to condone it being sidelined, nor to request its sideline when officials violate the rule of law.”

All the manners in which citizens adhere to the law, from accepting the political defeat of their preferred candidate to conforming to rules they disagree with, serve as a benchmark for the conduct we should expect from leaders, he asserted. 

This is not to assert that recent occurrences, including judicial rulings, have not challenged this principle.

For instance, the notion that under the rule of law no individual is exempt from legal accountability seems to clash with the Supreme Court’s recent ruling regarding the extent of presidential immunity, Waldron acknowledged.

“Any type of legal immunity presents a rule-of-law issue since it exempts certain individuals or groups from legal responsibilities that are applicable to the remainder of the community,” he stated. The matter of presidential immunity is “particularly concerning,” he added, as it establishes “a lack of legal accountability at the visible pinnacle of the state to favor the highest office holder.”

Concurrently, citizens can still “insist that an officeholder like the president has a specific duty to respect all laws, both constitutional and non-constitutional, and to demonstrate respect for the entirety of the legal framework, for all its processes, institutions, and demands,” Waldron mentioned.

“We desire what is referred to as the highest power in the land — at times the highest power in the universe — to be associated with legality.”