In the view of his opponents, Donald Trump’s single greatest threat is to something called “the rule of law.” The president’s executive order disciplining lawyers and law firms that “abuse” the legal system and federal courts? Violation of the rule of law. The administration’s withholding of billions of federal dollars from Harvard University? Violation of the rule of law. Shutting down the Voice of America? Violation of the rule of law. Banning natal males in female sports? Violation of the rule of law. Refusing to extract Kilmar Abrego Garcia from the Salvadoran prison to which he was mistakenly deported? Again, violation of the rule of law.
Trump is hardly alone in assuming this role. Americans and Europeans alike condemn right-wing populists in Poland, Hungary, Germany, France, Italy, and beyond for their inveterate threats to what is universally referred to as the rule of law. The concept is even used as a synonym for democracy. In the recent words of the German Foreign Office, placing the right-wing populist party Alternative for Germany (AfD) under the highest level of government surveillance was an expression of “democracy” not because it was done by the German national legislature but because it was done by an “independent” expert agency motivated to defend the “rule of law.” Stateside, even stalwart centrists like David Brooks now insist we are all either in the Resistance or abetting the road to fascism.
In the struggles of contemporary liberals against right-wing populism, the rule of law is presented as the sum of all good things, a principle no right-thinking person could either limit or qualify. Yet the rule of law is but one among many virtues a legal system might embody. It is not the same thing as justice, or legal equality, or human rights. It is certainly not a synonym for democracy. In overruling the acts of legislatures, in fact, the rule of law at times turns out to be positively anti-democratic. Is the rule of law simply an empty slogan fit only for the editorial page? Does it have any content beyond “Hurrah for this!” and “Down with that!”?