When newspapers and websites want an image that says ‘democracy’ they reach for a picture of someone casting a vote. But elections by themselves are not enough to guarantee a free, democratic society. You also need the rule of law: the idea that everyone is subject to the law, and that no one can change or override it by whim.
The rule of law is so important that Aristotle thought it was a reason to reject democracy. In a democratic polity, the majority could impose their will whatever the law said by simply changing it at a stroke. Aristotle was right. We made democracy work by making it less than fully democratic, imposing checks and balances on elected governments to ensure stability and fairness, limiting the power of the majority.
The rows over world tennis number one Novak Djokovic’s participation in the Australian Open and the lockdown parties at 10 Downing Street have shown how upholding the rule of law is not as straightforward as it might seem. Both critics of Djokovic and Johnson and their defenders are crying foul at how the legal system is or is not being used against them.
Take Johnson first. It seems very clear that laws were broken more than once as staff gathered to drink wine, nibble cheese and play games in groups larger and more mixed than strict lockdown rules allowed. Critics say that because the law should apply to everyone, Johnson should pay the price for this, resign at least and be prosecuted at most.
But his defenders point out that the enforcement of these laws always allowed for discretion and that police policy was to advise first, caution second and only press charges as a last resort. Furthermore, they do not investigate lockdown breaches beyond the most recent past. Add to that the fact that many people, perhaps the majority, were a little, how shall we say, flexible in how they interpreted lockdown laws, they claim Johnson is being judged by a harsher standard than others.
In Djokovic’s case, the argument against him is that he refused to be vaccinated and has used expensive lawyers to get around the restrictions that ordinary Australians have had to obey for months on end. His ‘special treatment’ is an offence to the principle of equality under the law.
His defenders, in turn, say that he had ticked all the right boxes and has even been given the all-clear to enter Australia by a judge. It is therefore clear that the Australian government is pursuing his case with a zeal it has not had for others in a politically-motivated attempt to keep him out.
These cases expose the fact that the ‘rule of law’ does not and never has meant treating every case identically. There is always a degree of discretion in how rules are applied, especially those that govern less serious wrongdoings. Motorists are not prosecuted for very breach of traffic regulations, for example. Many forces have explicit policies about not pressing charges for exceeding speed limits by a certain amount. Officers make judgement calls about whether certain technical infringements are reckless enough to warrant action.
There are many other examples of legal discretion. When people break tax laws it has to be decided whether this is unintentional and dealt with by repayment, worthy of a minor fine or serious enough to seek a jail sentence. In many cases public prosecutors have to judge whether taking someone to court is in the public interest and sometimes decide not to, even if the case is strong.
This is where it gets tricky with people like Djokovic and Johnson. There is an argument that their cases should be dealt with differently because they are so strongly in the public eye. Two important functions of the law are to act as a deterrent and to signal civic values. That means that if high-profile people break them it is a more serious matter than if someone anonymous does so and nobody notices.
The rule of law does not demand that everyone is treated the same. It seems to me that the major red lines the rule of law draw are, firstly, that decisions to enforce the law or not should not be based on caprice, prejudice, vendetta or any other irrelevant factor. The second is that the government and its agencies should not be able to determine how strictly rules are enforced, and certainly not to bend them, for political reasons.
If that’s right, it doesn’t seem to me that the rule of law is being threatened in Melbourne or in London. In Djokovic’s case it seems legitimate for the government to attempt to bring down the full force of the law on Djokovic, accepting that if the courts eventually disagree, it will have to reluctantly accept their judgement. In Johnson’s case, enforcing the rules strictly is entirely justified, since he had a special responsibility to follow the laws his government passed. Arguing that millions didn’t do so strictly is besides the point. At the same time, the police is right not to treat him more harshly than others as that would mean stepping into a political row.
A more problematic case was illustrated by the intriguing Netflix documentary Wild Wild Country (2018) about Bhagwan Shree Rajneesh establishing a commune in Oregon in 1981. Federal and state authorities investigated the Bhagwan and his assistants for alleged crimes ranging from immigration fraud to posting and attempted murder. Bhagwan loyalists argued that the bigoted authorities were out to get them from the start and were using every tool in the legal toolbox to persecute them in an attempt to shut them down. This defence is hard to accept completely since there were undoubtedly serious nefarious goings on in the commune and the law could not have turned a blind eye. But at the same time, many actions did seem to be politically motivated and it isn’t clear that they would have pursued, say, an evangelical Christian community with the same zeal.
The documentary did not say enough to allow the viewer to come to a confident final judgement. It was no investigation, merely a gripping compilation of interviews and contemporary news footage. But it did raise the genuine worry that a powerful democratically elected government could make a mockery of the rule of law simply by massively distorting the priorities of its law enforcers by pursue politically motivated cases.
I don’t have any clear and simple conclusions to all these thoughts. Rather, I’m left with a reminder that the rule of law really does matter but that judging whether it is being upheld isn’t a straightforward matter. That makes it important to monitor more closely those cases where discretion is being used and cry foul if we see that discretion being exercised for political or other ignoble motives. The rule of law contains many grey areas and ambiguities, and that provides opportunities for governments seeking to evade or abuse it.
New at JulianBaggini.com
‘Lessons From a Flawed Genius’ is an article I’ve written for Persuasion on why David Hume’s essays are unjustly neglected. If you are persuaded (boom-boom), you can read them all online here.
I’m Zachary Davis’s guest on the Ministry of Ideas podcast, talking about the meaning of life and all that. The podcast is an initiative of Harvard Divinity School.
Supporters can also get an exclusive preview of the third and final part of the lengthy discussion between two philosophers who take different views on the best way to advance trans rights about why the debate is such a fraught one, Catarina Dutilh Novaes and Mary Leng. It’s the penultimate edit, without any intros and outros. This adds to already sizeable amount of content in the support-exclusive area of my website.
On my radar
David Baddiel’s measured Guardian piece on the row over Helen Mirren playing Golda Meir is very well argued and especially worth reading if you think the argument about non-Jews playing Jews is a storm in a teacup. Baddiel’s main point is about double-standards around minority casting.
You don’t need me to tell you that the BBC documentary The Green Planet is excellent but maybe I can help with an after-viewing conversation starter. We’re discovering much more about plants and finding that they behave in ways that are incredibly intelligent. But we still have no reason to think they’re conscious. The intelligence/consciousness distinction is becoming increasingly important in discussions about AI. But it is also relevant for animal rights issues. For example, recently I finally watched My Octopus Teacher and it was amazing to see how smart the cephalopod was. But I thought it would be anthropomorphic and unwarranted to assume that this intelligence is indicative of the kind of rich inner conscious life a human being has. Discuss.
I finished the above-mentioned Wild Wild Country and can strongly recommend it, although be prepared to be left with more questions than answers. I would, however, ignore the algorithm’s suggestion you watch Searching for Sheela afterwards. It adds little to nothing to your understanding of this compelling character.
That’s it for this week. Until next time, if nothing prevents, thank for your interest.