The rule of law is often associated with the actions of government officials, prosecutors, and judges, but ordinary citizens also bear responsibility in upholding a society’s ethical and legal principles, says Jeremy Waldron, a professor at New York University School of Law.
A “fragile” but also “valuable and practicable ideal, ” the rule of law imposes on the government a “moral requirement” to legislate respectfully and to enact laws in a way that guides the conduct of citizens, but also “respects the agency” of those affected by such laws, Waldron, a scholar of legal and political philosophy, argued during the Edmond & Lily Safra Center for Ethics’ annual Kissel Lecture in Ethics on Thursday.
For ordinary citizens, support for the rule of law goes beyond merely not breaking it, he said.
“If government and its officials are constrained, then we, as voters and citizens and party members, must be constrained too in what we press for, in what we vote for, in what we pay for and organize for, and in the pressure we put on the state.”
Abiding by the rule of law means using the legal system in good faith, not to settle scores or to gain personal, political, or economic advantage, Waldron added. It also demands patience with officials who work within the often-slow pace and technical nature of the legal process, not to mention tolerance for actions we disagree with.
“If government and its officials are constrained, then we, as voters and citizens and party members, must be constrained too in what we press for, in what we vote for, in what we pay for and organize for, and in the pressure we put on the state.”
“Whenever an adverse decision is rendered to a citizen or an official, they immediately go onto the courthouse steps and say, ‘This is an outrage, and I’m going to appeal,’” he said. “Maybe we shouldn’t immediately denounce adverse decisions on the courthouse steps and move automatically to appeal. Maybe we should gracefully disclose a willingness to reflect on the verdict and consider our options in a responsible manner.”
Waldron noted that citizens help enforce the rule of law in a variety of ways — as jurors, witnesses, and civil complainants. Also as voters, who have an obligation to not allow self-interest to keep them from holding officials accountable, he said.
“If official compliance with law poses costs for the state and thus, for the taxpayer, we should be willing to bear them. Or if it results in missed opportunities for officials to confer benefits on us or lift burdens from us, then it’s incumbent on the ordinary voter not to urge that the rule of law be sidelined for those reasons, nor to acquiesce at it being sidelined, nor to request it being sidelined when officials do violate the rule of law.”
All the ways in which citizens comply with the law, from accepting their preferred candidate’s political defeat to following rules they don’t agree with, provide a model for the type of conduct we should expect from leaders, he argued.
Which is not to say that recent events, including court rulings, haven’t posed challenges to this principle.
For example, the idea that under the rule of law no one is exempt from legal accountability appears to conflict with the Supreme Court’s recent decision on the scope of presidential immunity, Waldon acknowledged.
“Any form of legal immunity is going to be a rule-of-law problem since it exempts some individual or class of individuals from legal obligations that apply to the rest of the community,” he said. The case of presidential immunity is “particularly troubling,” he added, because it affixes “a lack of legal accountability at the visible apex of the state to benefit the highest office holder.”
At the same time, citizens can still “insist that an office holder like the president has a particular obligation to respect all the laws, constitutional and non-constitutional, and to communicate respect for the whole legal enterprise, for all its processes, institutions and requirements,” Waldron said.
“We want what is called the highest power in the land — sometimes the highest power in the universe — to be associated with legality.”
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