It is an ironic feature of human life that we do not usually value something until it is absent. When this happens with, say, paradise, and they pave it to put up a parking lot – that’s sad and we miss it. When it happens with the rule of law, that’s totalitarianism. And I do not think that is putting too fine a point on it. The rule of law is a pretty simple concept: there is no one, no class, no office that is above the law. This simple concept, however, took centuries to be created and put into practice. There were times when it was more presently effective in a society and then times when it was less. There is not an always upward trajectory of increasing perfection. That’s not how history works (sorry, Hegel). We are now living in a time when we could be slipping; when the institutions that took centuries to be created and the principles that serve as a foundation to Western societies are threatened.
This is what is happening in Poland. This is what is happening in the United States. The courts, which have been conceived as an independent branch of governing a society become increasingly politicized, as well as another governing function of the ruling regime instead of an apolitical (or at least politicized) and independent institution committed to preserving and interpreting laws. Some places have even endowed their courts with the power of judicial review, which is the ability to strike down laws passed in the legislative branch if they are deemed to go against the foundational constitution of the state. It is quite a powerful capability, and one that can keep the executive and legislative branches of government in check. Judges, of course, are kept in check given their limited purview, as well as their appointments and tenure somehow related to the other branches of government. And here is the inherent tension: how can that be done — the courts being apolitical as well as judges being appointed by the representatives of the body politic? I would say that there is not an answer, but a tension that constantly has to be negotiated. It is hard, but it is worth it, in order to keep the rule of law at the basis of our societies.
And I hope that we can continue to work at that hard choice and not give into the easy politics of polarization or politicization, so that all can live under the fair treatment and application of the law, in principle and in fact as we continue to work for justice.