Politics and the rule of law

Leaders like Donald Trump need to remember the importance of the rule of law in civil society

By George Browning

February 7 2017We do not need much collaborative evidence to reinforce the notion that we human beings are quite fickle. We can be quite loyal, but loyalty needs to be rewarded. If our loyalty to bank, sporting club, doctor, or political party is not returned with benefit we can quite easily change.
Loyalty to family is usually different. That loyalty can usually withstand disappointment and hurt. That it is sometimes unable to do so is the cause of the most acute personal pain for all involved.
What about national loyalty, loyalty that is necessary to undergird national harmony and the proper functioning of a civil society? If loyalty is to be possible beyond tribalism, a foundation needs to be in place upon which all might have confidence. This confidence is provided in Western democracies through the rule of law, an assumption that fundamental rights and principles are safeguarded equally for all. The rule of law is the provision that has enabled society to evolve from tribal allegiance to nationhood in much of the ‘developed’ world. In turn nationhood has provided prosperity and quality of life which could never have been possible in a combative tribal situation.

This process in Europe took place gradually over centuries. On the other hand, tribal allegiance still prevails in many parts of the world making two party democracies impossible to achieve without the ‘buying’ of votes or allegiance from other tribal groups. The Pacific, Africa, and the Middle East have struggled to develop loyalties necessary to make national boundaries work: boundaries created to suit the now departed colonial powers.
In Australia, Europe and the US we take nationhood for granted, but in doing so it is easy to neglect the pillars upon which nationhood is founded.  One of those foundational principles is the separation of powers, especially the separation of the country’s government or political arm from its judiciary.  If it should ever become the case that the civilian population lost confidence in the judiciary to deliver equality under the law, especially to those at risk, civil society would be on the verge of collapse.  This is what makes Donald Trump’s recent belittling of the legitimate role of the judiciary so serious. 
There are various reasons why Donald Trump is taking his country down a very dangerous path (relaxing banking regulations put in place post 2008 is another), making a nonsense of his claim that he there for ordinary Americans. However, his latest incursion into the field of the judiciary is one of his most dangerous.  Anyone who disagrees with him is automatically insulted, but his reference to Justice James Robart of Seattle as a ‘so-called judge’, is extremely dangerous.  It appears that Trump has no understanding of the pillars upon which nationhood is built and of the extreme danger of the nation’s political arm disparaging its judiciary, not least in Judge Robart’s case, a judge who is apparently highly thought of and is himself a Republican.
Judges are political appointments, but having been appointed they are sworn to uphold the law and in this case to uphold the provisions of the country’s constitution.  
Comparisons are being made between this emerging situation (interference of politics in the judiciary) and Germany in the 1930’s. It is absolutely essential that with the freedom of the press being also under threat and ‘alternative facts’ being presented as a serious proposition, that the general population become better informed about the undergirding principles of our way of life that are now under considerable threat. Sadly this abuse of power is not restricted to the Unites States of America. The Israeli Knesset has just passed a law legitimising what had been illegal Israeli settlement outposts on private Palestinian land.  This legislation has been passed against the advice of the Israeli judiciary and it’s Attorney General. In Australia we have endured a spat between our Attorney General and officers representing what we normally consider to be statutory and independent bodies.
I grew up post WW2 to be afraid of the political left - of communism.  Today the pendulum has swung strongly in the opposite direction. All over the world the hard right is taking advantage of populist disquiet about globalisation, an invention of the capitalist West, to lead us down paths of isolation and false and misleading hope.  From the recent past’s era of slavery and the spice trade those in power have become prosperous at the hand of those without power. Those without power or voice are no longer prepared to be shut out. 
The world faces a future in which either more and more walls will be built, physical, social and electronic, to try and protect those who are prosperous from those who would like a share in the world’s wealth, or a world which is more equitable just and fair, protected by a universally accepted rule of law.
The present indicators are not looking good.

Dr George Browning is the former Bishop of Canberra and Goulburn. This is a slightly edited version of an article he wrote for his blog on 6 February 2017. See http://www.georgebrowning.com.au