The principle of the rule of law posits that no one is above the law. American voters rejected this principle on November 5. Knowingly, the majority of American voters chose to elect Donald Trump. They elected a president who has carried out gratuitous attacks against judges and the judicial system, who has violated laws that do not suit him, encouraged insurrectional gestures against state institutions and increased xenophobic and contemptuous of members of minorities.
It is true that the notion of the rule of law is abstract. It seems irrelevant to those who are rightly concerned about the price of gasoline or other daily necessities. However, it is an essential condition for the functioning of an open and innovative society.
Jacques Chevallier, professor emeritus at the University of Paris-Panthéon-Assas, explains that “the rule of law implies that those who govern do not have undivided authority, but exercise a function framed and governed by the law”. This concept, which has its roots in several centuries of history, was formalized from the end of the 19th century.e century.
In a study he conducted for the European Parliament, Professor Han-Ru Zhou, of the Faculty of Law at the University of Montreal, explains that the principle has been recognized by the courts of several democratic states. The rule of law is characterized by a legal order made up of hierarchical laws (constitution, laws, regulations), compliance with which is guaranteed by the control of independent judges. From the second half of the 20th centurye century, the notion is understood to include respect for a set of fundamental rights such as freedoms of expression, religion, the right to equality and the right to be judged impartially.
By imposing respect for the constitution, laws and judges, the principle of the rule of law protects popular sovereignty. The people exercise their sovereignty in accordance with the constitution and the laws. Far from being in contradiction with the sovereignty of the people, respect for the laws is the condition for its effectiveness. When compliance with the laws is not ensured, all types of cheating become possible.
The price to pay
Rejecting the rule of law has consequences. When a leader ignores the basic requirements of the rule of law, he finds himself very poorly placed to then claim to impose respect for the laws on others. Anyone who contravenes the laws has no legitimacy to demand respect for the laws (those that suit him) and, for example, to “get rid of” “illegal” immigrants. By knowingly ignoring this, American voters are helping to undermine the very foundations of the rule of law and democracy.
Respect for the judicial process is an essential condition for participating in democratic activity. This is not to suggest that judges should be immune from criticism. It is essential to guarantee the right to criticize the decisions of judges. But the denigration of judges without evidence is incompatible with a democratic society. In a society governed by laws, we must accept that disagreements are resolved by people who, as objectively as possible, will decide on the merits of the protagonists’ claims. It is the least bad alternative to violence.
The media, sometimes referred to as the fourth estate, is also a major component of the rule of law. Protected by freedom of the press, they ensure the production and dissemination of information validated and presented from a plurality of perspectives. When the media are weakened for the benefit of companies, such as social networks which focus on capturing and promoting the attention of citizens without being held to accountability requirements, the rule of law is weakened.
It is obviously essential to strengthen the guarantees of accountability of judges and the media. Processes requiring accountability must be transparent. But to benefit from the advantages of a social environment in which independent people arbitrate disputes, we must not tolerate aggressive gestures, threats and unfounded allegations against judges, journalists and other bodies responsible for making the shed light on collective issues and resolve disagreements.
Respect for the rule of law requires us to assume that no one is above the law. Entrusting high responsibilities to a person who cultivates the discredit of the laws, the judicial system and the independent media means accepting that the law does not have to be the same for everyone. It’s accepting arbitrariness. Benjamin Franklin is said to have said that the United States “is a republic, provided you know how to keep it.” By endorsing as they did the repeated assaults on this inherent principle of democracy, American voters may have initiated the end of their republic. But for those who like to be promised that the price of gas and chips will go down, that doesn’t matter.
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