With the Russia investigation edging ever closer to President Trump, Trump and special counsel Robert Mueller appear to be on a collision course that will “test our institutions and the rule of law as never before,” one commentator wrote Monday.
Other commentators and politicians critical of President Trump have charged that he is assaulting, attacking, disrespecting, threatening, or otherwise declaring war on the “rule of law.” The criticisms go back to when he was a candidate.
But what exactly is the rule of law? Here’s a refresher course.
The basic definition
It’s not a rule or a law, first of all. So Trump is not going to get convicted of violating the rule of law.
Instead, it’s a concept or an ideal, like “the good” or “equality,” experts say.
Here are four simple definitions:
■ Leaders must obey the law.
■ Government must obey the law.
■ No one is above the law.
■ Everyone must follow the law.
These brief answers come from the US Citizenship and Immigration Services test for people who want to become citizens. But they don’t tell the whole story.
Looking a little deeper
There is more to the rule of law, it turns out, than just a five- or six-word definition.
Brian Z. Tamanaha, a professor at the Washington University School of Law who is an expert on the rule of law, said in an interview that there are varying definitions out there of what the rule of law is.
“When you try to pin it down, it’s not that obvious what it means,” he said.
“The rule of law is like the notion of ‘the good.’ Everyone is for the good, although we hold different ideas about what the good is,” he said in a 2012 law review article, in which he laid out a roadmap for thinking about the idea.
If you look into the details, you will find legal theorists tussling over details of the concept.
But Tamanaha said there is a core idea that’s widely agreed upon: It’s that “the rule of law means that government officials and citizens are bound by and abide by the law. I repeat: government officials and citizens are bound by and abide by the law.”
If you don’t have that, you don’t have the rule of law, he said.
The legal system
Beyond the core idea, Tamanaha said, there are some necessary “requirements and implications.” Essentially, what’s needed is a system of laws for everyone to abide by in the first place. And those laws must be:
■Set forth in advance
■Must be stated in general terms
■Must be generally known and understood
■Cannot be impossible to follow
■Must be applied to everyone equally
■Must be accompanied by mechanisms or institutions, like prosecutors and courts, to enforce them when they’re broken.
An ancient idea
Tamanaha said the core idea goes back thousands of years.
“This is about government tyranny. Restraining the sovereign’s awesome power has been a perennial struggle for societies as long as they have existed,” he said.
Aristotle in his “Politics” wrote about the rule of law as being “preferable to that of any individual.”
The Justinian Code, written in the 6th Century, says, “What has pleased the prince has the force of law,” but also says, “It is a statement worthy of the majesty of a ruler for the Prince to profess himself bound by the laws,” Tamanaha noted.
Tamanaha cited Pepin the Short, Charles the Bold, and Louis the Stammerer as medieval monarchs who swore to abide by the law. Famously, King John in signing the Magna Carta in 1215 agreed to be bound by the law, though he soon repudiated it. Louis XIV of France said in an ordinance in 1667, “What brings perfect felicity to a kingdom is the fact that the king is obeyed by his subjects and that he himself obeys the law.”
John Adams, who drafted the 1780 Massachusetts Constitution, famously included the phrase “a government of laws and not of men.”
Adams wrote that “in establishing a government which is to be administered by men over men,” the greatest difficulty “lies in this: you must first enable the government to control the governed; and the next place oblige it to control itself.”
The importance of prosecutors and courts
How to address that “greatest difficulty” identified by Adams? The problem of controlling the government itself has been solved in modern political systems by creating independent courts and prosecutors, experts said.
A “necessary and inescapable desideratum of the rule of law is an independent judiciary,” Professor Mortimer N.S. Sellers of the University of Baltimore School of Law noted in a 2014 law review article. “Above all the rule of law requires an independent and self-confident judiciary, with power to interpret and apply the laws impartially, without fear or favor.”
Prosecutors who have “institutional separation and an independent obligation to abide by and enforce the law” are also necessary for the rule of law, Tamanaha wrote.
While in medieval times, only a king’s word might ensure that he followed the law (and kings did break their words), the “modern answer,” Tamanaha said, is that “we have divided up the sovereign into different component parts.”
“In the modern system, certain parts of the government, those offices charged with the enforcement and application of the law, bind other parts of the government to the law. It works through the differentation of institutions and the commitment of officeholders within government to comply with their obligations to uphold the law,” he said.
‘Higher legal restrictions’ also apply
Under the rule of law concept, leaders and governments must not just adhere to the existing law, they are also not free to use their power to change the law in any way they like, Tamanaha emphasized. And they cannot distort or manipulate existing law.
Their actions are subject to “higher legal restrictions,” such as human rights and constitutional rights, Tamanaha said.
“There are restraints on their law-making power. There are certain things they cannot do with it or in the name of the law,” he said.
That means there are situations where it’s possible for a government or officials to “transgress the spirit of the rule of law even when they do not violate the letter of the law,” he noted.
‘Rule of law’ as opposed to ‘rule by law’
In popular usage, the meaning of the phrase “rule of law” can get muddied, experts say.
Take, for example, a Nov. 9 statement from the White House press office that declares, “The Trump Administration is rightfully and fully restoring the rule of law on our southern border.” Or an Oct. 11 statement that says human trafficking is a “threat to the rule of law.”
That doesn’t seem to fit with what the experts say is the core meaning of the phrase. It seems more like someone actually meant “law and order.”
University of Massachusetts law professor David Mednicoff noted in a June article on The Conversation website that Trump appears to use the “rule of law” to refer to“deference to political authority and efficient law enforcement.”
Trump seems to have “kind of an authoritarian understanding of the rule of law,” Mednicoff said in an interview.
Tamanaha said sometimes people use “rule of law” incorrectly to mean that people must simply obey the law. In that case, he said, what they are really talking about is “rule by law” not “rule of law.” And they are missing the point that the rule of law is about reining in government power.
“You’ve got a piece of it, not the main connotation of it,” he said. “The government itself is the most powerful entity in society in the sense that it wields force, and we want that force to be wielded within legally required parameters.”
On Sunday, US Senator Marco Rubio said on CBS-TV’s “Face the Nation,” “If someone did something wrong here it is important, in the interest of the country and the rule of law, that those people be held to account.”
“No one is above the law in this country,” he said.
He made a similar comment on ABC-TV’s “This Week.” (He also said, “No one is beneath the law, meaning no one is not entitled to the protections of it.”)
Interest in the rule of law is on the upswing again, according to Google Trends.
And it will undoubtedly be mentioned more in the coming days as the Russia investigation drama plays out, particularly if Trump takes any steps to try to interfere with the probe that is putting him in increasing legal and political jeopardy.
The common thread in rule of law criticisms of Trump, Tamanaha said, is that Trump is “acting without sufficient respect for legal constraints on his actions. ... He is paying very little heed to the idea that we live in a government and society that operate according to existing laws.”
Mednicoff said, “The law is a seamless web. He seems to be putting his hands all over the web of law and disrupting it.”