Will Laws Just Become Suggestions?

On a trip to Italy some years ago, I noticed cars triple parked on the busy streets of Rome. Our guide explained this with the quip that “in Italy, traffic laws are treated as suggestions.”  I’ve recalled that incident often in the last couple years when I have seen many Americans, including elected officials, disdain and openly defy COVID restrictions.  The “Italian approach” seems to have been adopted as well by those ignoring laws during violent protests, intimidating poll workers, attacking flight attendants and using social media to threaten the lives of Americans they don’t know but detest anyway.

The rule of law is fragile.  It requires a moral and emotional commitment of citizens, not just legal compliance, to abide by laws they may not like.  Without this commitment, little stands between civil society and anarchy. When we take the rule of law for granted, we weaken government, societal institutions and the ability of both to protect us when we’ll need it most.

In this context, the 2021 report of the World Justice Project (WJP) Rule of Law Index invites thought.  A collection of 44 measures of the rule of law in 139 countries, based on surveys of citizens and legal practitioners, the Index reported that the United States for the first time fell out of the top 20 nations in adherence to the rule of law.  In 2015, it ranked 19th; in 2021 it ranked 27th.  Over that period, substantial declines were measured in such areas as limiting the power of the legislature and judiciary, sanctions for official misconduct, the lawful transition of power, use of power by legislative officials for private gain, guaranteed freedom of expression, guaranteed labor rights, civil justice free of discrimination and impartial criminal justice.

Just a few examples over the last few years add some context to the WJP’s report. 

·       The “Stop the Steal” effort led by President Trump, lacking objective evidence, treated the outcome of the 2020 election as an illegal result, threatening the peaceful transition of power for the first time in American history.

·       Our highest court, the final arbiter of what the law is, is now viewed by many as a political institution.  A February 2022 ABC News/Washington Post poll found 45 percent of Americans feel Supreme Court Justices mainly decide cases based on “their personal political views not “the law.”

·       In 2000, the Southern Poverty Law Center identified 599 hate groups in America; in 2021 there were 733.  They carry out acts of intimidation and violence, such as the 2017 “Unite the Right” rally and the July 6th attack on the U.S. Capitol.  Concluding that laws are not “preserving” the America they want, they ignore them.

·       The United States has the highest rate of gun ownership in the world.  Ethnic, racial and political tensions are convincing many Americans that law enforcement will not protect them.  Armed vigilante justice thus becomes acceptable in their minds. 

·       State legislatures dominated by a political party gerrymander election districts and pass election laws aimed at entrenching their majorities.  Citizens then view the law as the exercise of raw power rather than a protector of minority rights.  In a perverse way, the result of creating such laws is to weaken the rule of law.

·       Statements by public officials attacking judicial opinions and judges and pronouncing the guilt or innocence of indicted individuals before trial or even after a jury’s verdict breed disrespect for the law and the judiciary.

·       Prosecution of the wealthy and/or politically connected drags on for years with endless appeals, and then many of the well-connected who are convicted get pardoned.   Those with far fewer means often plea bargain, even when they know they are innocent, because they cannot afford the costs of their defense. 

The WJP Rule of Law Index gives some indication of what happens when the rule of law is weak.  Among countries near the bottom of the Index are Venezuela, Egypt, Ethiopia and the Democratic Republic of Congo.  Their people struggle under anti-democratic rule.  

Even in established democracies where the rule of law is perceived to or actually weakens anarchy has room to grow.  The fear that accompanies disorder is the condition which brings autocrats to power.  They promise protection and security, which usually comes at the price of liberty.

George Washington understood this. In his Farewell Address, he shared his fear that those with selfish ends would subvert the American republic.  “All obstructions to the execution of the laws,” he warned, were dangerous.  Factions seeking their ends could “become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government.”

We like to think we’re far from such an outcome.  Thankfully, there are also strong positives in the Index for the United States.  Yet we assume, at our peril, that our republic can survive those for whom laws are mere suggestions.  As January 6th showed, for many Americans democracy itself is seen by some as a mere suggestion.

Photo Credit: Tingey Injury Law Firm @ unsplash.com