RULE OF LAW AND THE REAL WORLD
A Conversation with Paul Gowder.
''Rule of law'' is the generally accepted description for how well a political system conforms to formal rules - rather than functioning through the whims of the most powerful social or political agents. For a society to be described as one functioning under rule of law - there must be rules and those rules must be equally applied to everyone in the society. Let us call this Letter of the Law. These rules are usually expressed through the constitution of a country and enforced through the courts. But simply having rules and enforcing them does not suffice in the making of the rule of law - and it is an incomplete (however accurate) conception of it. Some rules can be drafted in bad faith or with the express purpose of protecting the interest of the political elites responsible for governance. This is why many scholars have argued that the rule of law can only be said to exist in a state that functions under rules designed to protect the civil liberties (individual rights, freedom of speech, freedom of association, etc.) of the people living within its territory. Let us call this the Character or Spirit of the Law.
The character of the law understood as the fulfilment of constitutionally-guaranteed civil liberties is the most common standard by which governance is judged to conform or deviate from the rule of law. For example, countries that routinely violate the rights of citizens in whatever form cannot be said to be governed by the rule of law, even if it has a written constitution. Consideration of the character of the law is the context to understanding the work of my guest on this episode, Paul Gowder.
He is a professor of law at NorthWestern university with a broad research interest and expertise. Paul departs from this common derivation of the character of the law as rooted in liberty - and argued that for the rule of law to be broadly applicable in different societies (not dependent on the political institutions and ethical ideals of any specific society) with varying cultures and traditions of governance, it must be rooted in Equality. To understand Paul's argument, I will briefly state two important aspects that set the tone for our conversation - this should not be taken as an exhaustive summary of his work and I encourage you to check out his website and book. The first is that the rule of law as a principle regulates the actions of the state (government), and it is not to be conflated with other rules that regulate the actions of citizens.
This is such an important point because one of the most egregious expressions of the law is when a government uses it to oppress citizens. Secondly, Paul outlines three components of the rule of law based on equality as 1) regularity - the government can only use coercion when it is acting in ''good faith'' and under ''reasonable interpretation'' of rules that already exist and are specific to the circumstances. 2) publicity - the law has to be accessible to everyone without barriers (''officials have a responsibility to explain their application of the law, ...failure to do so commits hubris and terror against the public"). 3) generality - the law must be equally applicable to all. Putting all these elements together gives us a rule of law regime where everyone is equal before the law, and the state does not wantonly abuse citizens or single out particular groups for systematic abuse.
I enjoyed this conversation very much, and I want to thank Paul for talking to me. Thank you guys too for always listening, and for the other ways you support this project.
I greatly enjoyed your work on the rule of law. I've read your papers, I've read your book, and I like it very much. I think it's a great public service if I can say that because for a lot of time, I am interested in economic development and that is mostly the issue that this podcast talks about. And what you see in that particular conversation is there hasn't really been that much compatibility between the question of the rule of law or the laws that should regulate the actions of the state, and its strategy for economic development.
Most of the time, you often see even some justification, I should say, to trample on rights in as much as you get development, you get high-income growth for it. And what I found in your work is, this does not have to be so. So what was your eureka moment in coming up with your concept, we are going to unpack a lot of the details very soon, but what motivated you to write this work or to embark on this project?
Yeah, I think for me, part of the issue that really drives a lot of how I think about the rule of law and you know, reasons behind some of this work is really a difference between the way that those of us who think about human freedom and human equality, right? I think of it as philosophers, right. So they're philosophers and philosophers think about the ability of people to live autonomous lives, to sort of stand tall against their government, to live lives of respect, and freedom and equality.
And that's one conversation. And so we see people, like, you know, Ronald Dworkin, thinking about what the rule of law can deliver to human beings in that sense. And then, you know, there's this entire development community, you know, the World Bank, lots of the US foreign policy, all of the rest of those groups of people and groups of ideas, talk about the rule of law a lot and work to measure the rule of law and invest immense amounts of money in promoting what they call the rule of law across the world.
But mostly, it seems to be protecting property rights for multinational investment. And I mean, that makes some kind of sense, if you think that what the rule of law is for is economic development, is increasing the GDP of a country and integrating it into favourable international networks of trade. But if you think that it's about human flourishing, then you get a completely different idea of what the rule of law can be, and should be.
And so this sort of really striking disjuncture between the two conversations has driven a lot of my work, especially recently, and especially reflecting even on the United States, I think that we can see how domestic rule of law struggles - which we absolutely have, I mean, look at the Trump administration, frankly, as revolving around this conflict between focusing on economics and focusing on human rights and human wellbeing.
It's interesting the polarization you're talking about. And one way that I also see it play out is [that] analyst or other stakeholders who participate in the process of nation-building in Africa, in Nigeria… a lot of us that care about development and would like to see our countries grow and develop and become rich, are often at opposite ends with other people in the civil society who are advocating for human rights, who are advocating for gender equality, who are advocating for so many other social justice issues.
And it always seems like there's no meeting ground, you know, between those set of views, and I believe it does not have to be so. So one thing I'm going to draw you into quite early is one of the distinctions you made in so many of your papers and even your book is the difference between the conception of the rule of law that you are proposing versus the generally accepted notion of the rule of law based on individual liberty in the classical liberal tradition.
I also think that's part of the problem, because talking about individual liberty comes with this heavy ideological connotation, and giving so many things that have happened in Africa with colonialism and so many other things, nobody wants any of that, you know. So you are proposing a conception of the rule of law that is based on equality.
Tell me, how does that contrast with this popularly accepted notion of the rule of law [which is] based on individual liberty?
So I think the way to think about it is to start with the notion of the long term stability of a rule of law system. And so here is one thing that I propose as a fact about legal orders. Ultimately, any kind of stable legal order that can control the powerful, that is, that can say to a top-level political leader, or a powerful multinational corporation, or whomever, no, you can't do this, this violates the law and make that statement stick depends on widespread collective mobilization, if only as a threat, right.
And so it's kind of an analytic proposition about the nature of power, right? If you've got a top-level political leader who's in command of an army, and they want to do something illegal, it's going to require very broad-based opposition, and hence very broad-based commitment to the idea of leaders that follow the law in order to prevent the person in charge of an army from just casually violating it whenever they want.
Okay, accept that as true, what follows from that? Well, what follows from that is that the legal system has to actually be compatible with the basic interests of all. And what that tends to mean and I think this is true, both historically, and theoretically, is leaving aside the philosophical conceptual difference between liberty and equality, which I'm not sure is really all that important. Like I think, ultimately, liberty and equality as moral ideas tend to blur together when you really unpack them.
But practically speaking, any stable legal order that can control the powerful has to be compatible with the interests of a broad-based group of the human beings who participate in that legal order. And what that entails is favouring a way of thinking about the rule of law that focuses on being able to recruit the interests of even the worst off.
In other words, one that's focused on equality, one that's focused on protecting the interests of the less powerful rather than a laissez-faire libertarian conception of the rule of law that tends to be historically speaking, compatible with substantial amounts of economic inequality, hyper-focus on ideas - like property rights, that support the long-standing interests of those who happen to be at the top of the economy, often against the interests of those that happened to be at the bottom of the economy, right. That's simply not a legal order that is sustainable in the long run.
Lately, I've been thinking a lot about the way that this has played out in [the] United States history, in particular. I might have a book that's coming out in December that focuses on a historical account of the development of the rule of law, particularly in the United States. I mean, it's my own country. And so at some point, I had to get talked into writing that book.
And we can see that in our history right at the get-go, you know, in the United States, at the very beginning, the rule of law dialogue tended to be focused on protecting the interests of wealthy elite property holders. And this actually played a major part, for example, in the United States' most grievous struggle, namely the struggle over slavery, because slaveholders really relied on this conception of the Rule of Law focusing on individual freedom and property rights to insist on a right to keep holding slaves against the more egalitarian idea that “hey, wait a minute, the enslaved have a right to be participants in the legal system as well.”
And so we can see these two different conceptions of legality breaking the United States and breaking the idea of legal order in the United States right at the get-go. And we see this in country after country after country. You know, another example is Pinochet's Chile, which was the victim of [the] United States' economics focused rule of law promotion efforts that favoured the interests of property holders under this libertarian conception over the interests of ordinary citizens, democracy and mass interests. In other words, over the egalitarian conception, and again, you know, devolved into authoritarianism and chaos.
Yeah, nice bit of history there, but dialling all the way, if you'll indulge me... dialling all the way to the present, or maybe the recent past, of course; where I see another relevance and tension is development, and its geopolitical significance and the modernization projects that a lot of developed countries have done in so many poor and violent nations, you know, around the world.
I mean, at the time when Africa decolonized, you know, a lot of the countries gravitated towards the communist bloc, socialism [and] that process was shunted, failed, you know, there was a wave of military coups all over the continent, and it was a really dark period.
But what you see is that a lot of these countries, Nigeria, for example, democratized in 1999, a lot of other countries either before then or after followed suit. And what you see is, almost all of them go for American-style federal system, and American-style constitutional democracy, you know. And how that tradition evolved... I mean, there's a lot you can explain and unpack here... how that tradition evolved, we are told is the law has a responsibility to treat people as individuals.
But you also find that these are societies where group identities are very, very strong, you know, and what you get are constitutions that are weakly enforced, impractical, and a society that is perpetually in struggle. I mean, you have a constitution, you have rules, and you have a government that openly disregards them, because the constitutional tradition is so divorced from how a lot of our societies evolve.
And what I see you doing in your work is that if we divorce the rule of law from the ideal society, you know [like] some societies that we look up to, then we can come up with a set of practical propositions that the rule of law should fulfil, so walk me through how you resolve these tensions and your propositions?
Well, so it's exactly what you just said, right? I mean, we have to focus on actual existing societies and the actual way that people organize their lives, right. And so here's the issue is, just like I said a minute ago, the rule of law fundamentally depends on people. And when I say people, I don't just mean elites. I don't just mean the wealthy, I don't just mean the people in charge of armies, and the people in charge of courthouses, right?
Like the rule of law depends, number one, on people acting collectively to hold the powerful to the law. And number two, on people using the institutions that we say are associated with the rule of law. And so just as you describe, one sort of really common failure condition for international rule of law development efforts - and I don't think that this is a matter of sort of recipient countries admiring countries like the US, I think this is a matter of international organizations and countries like the US having in their heads a model of what the law looks like and sort of pressing it on recipient countries.
But you know, when you build institutions that don't really resemble how the people in a country actually organize their social, political and legal lives, you shouldn't be surprised when nobody uses them. You shouldn't be surprised when they're ineffective.
But I mean, I think that it's been fairly compared to a kind of second-generation colonialism in that sense where countries like the US and like Germany, attempt to export their legal institutions to other countries, without attending to the ways that the people in those countries already have social and legal resources to run their lives.
And so I'll give you an example that's interesting from Afghanistan. So in Afghanistan, sort of post the 2000s invasion, and so forth, some researchers, mostly affiliated with the Carnegie Institution, found that the really effective rule of law innovations, the really effective interventions were ones that relied on existing social groups and existing structures of traditional authority.
And so, you know, you could build a courthouse and like, ask a formal centralized state to do something, maybe it would work, maybe it wouldn't, maybe people would use it, maybe they wouldn't. But if you took local community leaders, local religious leaders, gave them training, and how to use the social capital they already have to help do things like adjudicate disputes, well, those would actually be effective, because they fit into the existing social organization that already exists.
So I'll give you another example. I have a student who... I had… I just graduated an S.J.D student from Uganda who wrote a dissertation on corruption in Uganda. And one of the things that he advocated for I think, really sensibly was, “ okay, we've got this centralized government, but we've also got all of these traditional kingdoms, and the traditional kingdoms, they're actually a lot more legitimate in the sociological sense than the centralized government.
People trust the traditional kingdoms, people rely on the traditional kingdoms for services, for integrating themselves into their society. And so one useful way of thinking about anti-corruption reforms is to try and empower the traditional kingdoms that already have legitimacy so that they can check the centralized government. And so that kind of work, I think, is where we have real potential to do global rule of law development without just creating carbon copies of the United States.
The process you describe, I will say, as promising as it may sound, what I want to ask you is how then do you ensure that a lot of these traditional institutions that can be empowered to provide reasonable checks to the power of the central government also fulfil the conditions of equality in their relation to the general public? Because even historically, a lot of these institutions are quite hierarchical...
Oh, yeah... and I think in particular, women's rights are a big problem.
Yeah, yeah and there's a lot of abuses that go on locally, even within those communities, you know. We have traditional monarchies who exercise blanket rights over land ownership, over people's wives, over so many things, you know, so how then does this condition of equality transmit across the system?
Yeah, no, I think that's the really hard question. I tell you right now that part of the answer is that those are not end-state processes. By this I mean that any realistic conception of how we can actually build effective rule of law institutions, but also genuinely incorporate everyone's interests in a society is going to accept that there's going to be a kind of dynamic tension between institutions.
You know, sometimes we're going to have to use the centralized state to check traditional institutions. Sometimes we're going to have to use traditional institutions to check the centralized state. Elinor Ostrom, Nobel Prize-winning political scientist and her sort of the Bloomington School of Political Economy, emphasized for many years this idea that they called Polycentrism.
That is the idea that multiple, overlapping governance organizations that are sort of forced to negotiate with one another, and forced to learn from one another, and really integrate with one another in this sort of complex tension-filled kind of way, actually turns out to be a really effective method of achieving what we might call good governance.
And part of the reason is because they give a lot of different people, in different levels of [the] organization, ways to challenge one another, ways to demand inclusion in this decision, and let somebody else handle that decision, and participate jointly in this other decision. And so I think that neither the centralized state alone, nor traditional institutions alone is going to be able to achieve these goals.
But I think efforts to integrate them have some promise. And India has done a lot of work, you know, sort of mixed record of success, perhaps, but has done a lot of work in these lines. I think, for example, of many of the ways that India has tried to promote the growth of Panchayats, of local councils in decision making, including in law enforcement, but at the same time, has tried to do things like promote an even mandate, the inclusion of women, the inclusion of Scheduled Castes, you know, the inclusion of the traditionally subordinated in these decision making processes.
And as I said, they haven't had complete success. But it's an example of a way that the centralized state can both support traditional institutions while pushing those institutions to be more egalitarian.
Let's delve into the three conditions that you identified in your work, which any rule of law state should fulfil. And that is regularity, publicity, and generality. Kindly unpack those three for me.
Absolutely. So regularity is...we can think of it as just the basic rule of law idea, right? Like the government obeys the law. And so if you think about this notion of regularity, it's... do we have a situation where the powerful are actually bound by legal rules? Or do we have a situation where, you know, they just do whatever they want? And so I'd say that, you know, there's no state that even counts as a rule of law state in the basic level without satisfying that condition, at least to some reasonable degree.
The idea of publicity really draws on a lot of what I've already been saying about the recruitment of broad participation in the law. That is, when I say publicity, what I mean is that in addition to just officials being bound by the law, ordinary people have to be able to make use of the law in at least two senses.
One, they have to be able to make use of the law to defend themselves. I call this the individualistic side of publicity, right? Like if some police officer wants to lock you up, the decision on whether or not you violated the law has to respond to your advocacy, and your ability to defend yourself in some sense.
And then there's also the collective side of this idea of publicity, which is that the community as a whole has to be able to collectively enforce the boundaries of the legal system. And you know, we'd talk a lot more about that, I think that's really the most important idea.
And then the third idea of generality is really the heart of the egalitarian idea that we've been talking about, which is that the law has to actually treat people as equals. And one thing that I think is really important about the way that I think about these three principles is that they're actually really tightly integrated.
By tightly integrated, I mean you're only going to get in real-world states, regularity (that is, officials bound by the law) if you have publicity (that is, if you have people who aren't officials who actually can participate in the legal system and can hold officials to the law). We need the people to hold the officials in line.
You're only going to get publicity if you have generality. That is, the people are only going to be motivated to use the legal system and to defend the legal system if the legal system actually treats them as equals. And so you really need publicity to have stable regularity, you really need generality to have stable publicity.
Speaking of regularity, when you say what constrains the coercive power of the state is when it is authorised by good faith and reasonable interpretation of pre-existing reasonably specific rules. That sounds very specific. And it's also Scalonian in a way, but a lot of people might quibble a bit about what is reasonable, you know, it sounds vague, right?
So how would you condition or define reasonable in this sense, and I know you talked about hubris when you were talking about publicity. But is there a minimum level of responsibility for reasonability on the part of the citizen in relation to a state?
That's, in a lot of ways, the really hard philosophical question, because one of the things that we know about law is that it is inherently filled with disagreement, right? Like our experience of the legal system and of every state that actually has something like the rule of law is that people radically disagree about the legal propriety of actions of the government.
And so in some sense, this idea of reasonableness is kind of a cop-out. But it's a cop-out that is absolutely necessary, because there's no, you know, what [Thomas] Nagel called a view from nowhere. There's no view from nowhere from which we can evaluate whether or not on a day to day basis, officials are actually complying with the law in some kind of correct sense.
But again, I think, you know, as you said, to some extent, that implies that some of the responsibility for evaluating this reasonableness criterion falls down to day to day politics, falls down to the judgment of ordinary citizens. Like, my conception of the rule of law is kind of sneakily a deeply democratic conception, because it recognizes given the existence of uncertainty as to what the law actually requires of officials both on a case by case basis.
And, broadly speaking, the only way that we're ever going to be able to say, Well, you know, officials are more or less operating within a reasonable conception of what their legal responsibilities are, is if we empower the public at large to make these judgments. If we have institutions like here in the US, our jury trials, if we have an underlying backstop of civil society and politics, that is actively scrutinizing and questioning official action.
So speaking of publicity, which is my favorite...I have to say...
Mine too. You could probably tell.
Because I think that therein lies the power of the state to get away with abusive use of its legitimacy, or its power, so to speak. When you say that officials have a responsibility to explain their application of the law, and a failure to do so commits hubris and terror against the public. So those two situations - hubris and terror, can you explain those to me a bit?
Yeah. So these are really, sort of, moral philosophy ideas at heart, particularly hubris. The idea is there's a big difference, even if I have authority over you, between my exercising that authority in the form of commands and my exercising that authority in the form of a conversation that appeals to your reasoning capacity, right.
So these days, I'm thinking about it in part with reference to... I'm going to go very philosophical with you here... but in reference to Kant's humanity formulation of the categorical imperative, sorry.
But that is a sense in which if I'm making decisions about your conduct, and your life and, you know, affecting your fundamental interests, that when I express the reasons to you for those decisions, and when I genuinely listen to the reasons that you offer, and genuinely take those into account in my decision making process, I'm showing a kind of respect for you, which is consistent with the idea of a society of equals.
As opposed to just hi, I'm wiser than you, and so my decision is, you know, you go this way, you violated the law, right? Are we a military commander? Or are we a judge? Both the military commander and the judge exercise authority, but they do so in very different ways. One is hierarchical, the other I would contend is not.
Still talking about publicity here, and why I love it so much is one important, should I say… a distinction you made quite early in your book is that the rule of law regulates the action of the state, in relation to its citizens.
Often and I would count myself among people who have been confused by that point as saying that the rule of law regulates the action of the society in general. I have never thought to make that distinction. And it's important because often you see that maybe when dealing with civil disobedience, or some kind of action that the government finds disruptive to its interests, or its preferences, the rule of law is often invoked as a way for governments to use sometimes without discretion, its enforcement powers, you know.
So please explain further this distinction between the rule of law regulating the state-citizen relation versus the general law and order in the society. I mean, you get this from Trump, you get this from so many other people who say, Oh, we are a law and order society, I'm a rule of law candidate.
You cannot do this, you cannot do that. We cannot encourage the breakdown of law and order in the society. So, explain this difference to me.
Absolutely, then this is probably the most controversial part of my account of the rule of law. I think everybody disagrees with this. I sort of want to start by talking about how I got to this view. And I think I really got to this view by reflecting on the civil rights movement in the United States in particular, right.
Because, you know, what we would so often see, just as you say about all of these other contexts, is we would see officials, we would see judges - I mean, there are, you know, Supreme Court cases where supreme court justices that are normally relatively liberal and sympathetic, like, you know, Justice Hugo Black scolding Martin Luther King for engaging in civil disobedience on the idea that it threatens the rule of law.
It turns out, and this is something that I go into in the book that's coming out in December... it turns out that King actually had a sophisticated theory of when it was appropriate to engage in civil disobedience and when it wasn't.
But for me, reflecting on that conflict in particular, and reflecting on the fact that the same people who were scolding peaceful lunch-counter-sit-ins for threatening the rule of law and, you know, causing society to descend into chaos and undermining property rights and all the rest of that nonsense, were also standing by and watching as southern governors sent police in to beat and gas and fire hose and set dogs on peaceful protests in this sort of completely new set of like, totally unbounded explosions of state violence.
And so it seems to me sort of intuitively, like these can't be the same problem, right, like ordinary citizens, doing sit-ins, even if they're illegal, even if we might have some reason to criticize them, it can't be the same reason that we have to criticize Bull Connor for having the cops beat people.
And part of the reason that that's the case, and this is what I call the Hobbesian property in the introduction to the rule of law in the real world...part of the reason is just the reality of what states are, right? Like, protesters don't have tanks and police dogs, and fire hoses, right? Protesters typically don't have armies. If they do, then we're in a civil war situation, not a rule of law situation, the state does have all of those things.
And so one of the features of the state that makes it the most appropriate site for this talk about the rule of law is this the state has, I mean, most modern states have, at least on a case by case basis, overwhelming power. And so we have distinct moral reasons to control overwhelming power than we do to control a little bit of legal disobedience, right, like overwhelming power is overwhelming.
It's something that has a different moral importance for its control. Then the second idea is at the same time what I call the [...] property... is the state makes claims about its use of power, right? Like ordinary people, when they obey the law or violate the law, they don't necessarily do so with reference to a set of ideas that they're propagating about their relationship to other people.
Whereas when modern states send troops in to beat people up, in a way what they're doing is they're saying that they're doing so in all of our names, right, particularly, but not exclusively in democratic governments. There's a way in which the state represents itself as acting on behalf of the political community at large. And so it makes sense to have a distinctive normative principle to regulate that kind of power.
I know you sort of sidestepped this in the book, and maybe it doesn't really fit with your overall argument. But I'm going to push you on that topic a bit. So how does the rule of law state as a matter of institutional design then handles... I know you said that there are separate principles that can be developed for guiding citizen actions, you know...
I mean, let's be clear that you are not saying that people are free to act however they want.
I'm not advocating anarchy.
Exactly. So how does the rule of law state then handle citizens disagreements or conflicting interests around issues of social order? And I'll give you an example. I mentioned right at the beginning of our conversation what happened in Nigeria in October 2020.
There's a unit of the police force that was created to handle violent crimes. Needless to say that they went way beyond their remit and became a very notoriously abusive unit of the police force.
Picking up people randomly, lock them up, extort them for money. And there was a situation where a young man was murdered, and his car stolen by this same unit of the police force and young people all over the country, from Lagos to Port Harcourt to Abuja, everywhere, felt we've had enough, right, and everybody came out in protest.
It was very, very peaceful, I'd say, until other interests, you know, infiltrated that action.
But what I noticed quite early in that process was that even within the spirits of that protests, there were disagreements between citizens - protesters blocking roads, you know, versus people who feel well, your protest should not stop me from going to work, you know, and so many other actions by the protesters that other people with, maybe not conflicting interests, but who have other opinions about strategy or process feel well, this is not right.
This is not how to do this. This is not how you do this, you know, and I see that that sort of provided the loophole, I should say, for the government to then move in and take a ruthlessly violent action. You know, there was a popular tollgate in Lagos in the richest neighbourhood in Lagos that was blocked for 10 days by the protesters. And I mean, after this, the army basically moved in and shot people to death.
Today, you still see people who would say, Oh, well, that's tragic. But should these people have been blocking other people from going about their daily business? So how does the rule of law regulate issues of social order vis-a-vis conflict of interest?
So I think this is actually a point in favour of my stark distinction between state action and social action as appropriate for thinking about the rule of law. Because when you say that the state used...what I still fundamentally think of as like minor civil disobedience...so, like blocking some roads, big deal!
Protesters block roads all the time, right, like protesters have blocked roads throughout human history, you know, like, sometimes it goes big, right? Like they love blocking roads in the French Revolution. But oftentimes, it's just blocking... so I blocked roads.
I participated in, you know, some protests in the early 2000s. I participated in blocking roads in DC, right, like, fundamentally "big deal!" is the answer that the state ought to give. And so by saying to each other and to the government, when we talk about the rule of law, we mean, the state's power has to be controlled by the law, I think that gives us a language to say... even though people are engaging in illegal things, the state still has to follow legal process in dealing with it, right.
The state still has to use only the level of force allowed by the law to arrest people. The state can't just send in the army to shoot people. And the principle that we appeal to is this principle of the rule of law.
Yeah, maintaining the distinction between lawbreaking by ordinary people and law-breaking by the state helps us understand why the state shouldn't be allowed to just send in troops whenever people engage in a little bit of minor lawbreaking and protests.
So how does the law... I mean, we are entering a bit of a different territory, how does the law in your conception handles what... well, maybe these are fancy definitions, but what some people will call extraordinary circumstances. Like protests with political interests? Maybe protesters that are funded and motivated to unseat an incumbent government?
Or in terrorism, you know, where you often have situations where there are no laws on paper to deal with these sort of extraordinary situations, you know, and they can be extremely violent, they can be extremely strange, they're usually things that so many societies are not equipped to handle.
So how should the rule of law regulate the action of the state in such extraordinary circumstances?
Yeah, so this is the deep problem of the rule of law, you know, this is why people still read Carl Schmitt, right, because Carl Schmitt's whole account of executive power basically is, hey, wait a minute emergencies happen, and when emergencies happen, liberal legal ideas like the rule of law dropout, and so fundamentally, you just have like raw sovereignty. And that means that the state just kind of does what it must. Right.
So here's what I feel about Schmitt. One is, maybe sometimes that's true, right? And again, I think about the US context, because I'm an American and you know, I have my own history, right? And so in the US context, I think, again, about, Abraham Lincoln and the Civil War, right.
Like Abraham Lincoln broke all kinds of laws in the Civil War. Like today, we'd call some of the things that he did basically assuming dictatorial power in some respects. I mean, he did that in the greatest emergency that the country had ever faced and has ever faced since then. And he did it in a civil war. And sometimes that happens, and I think practically speaking, legal institutions have a habit of not standing in the way in truly dire situations like that.
But, and here's why I want to push back against Carl Schmitt... but what a legal order can then do is after the emergency has passed...number one, the legal order can be a source of pressure for demanding and accounting of when the emergency has passed, right. And so again, I think of the United States War on Terror, you know, we still have people in United States' custody imprisoned at Guantanamo Bay.
September 11 2001, was almost 20 years ago. It's actually 20 years ago and a month, and we still have people locked up in Guantanamo Bay. That's insane. That's completely unjustifiable. And one of the jobs of the legal system is to pressure the executive to say, okay, buddy, is the emergency over yet? No, really, we think that the emergency is over yet. I want reasons, right, publicity again, I want an explanation from you of why you think the emergency is still ongoing. And the legal system can force the executive to be accountable for the claim that the emergency is still ongoing.
That's number one. Number two is that law tends to be really good at retroactively, sort of, retrofitting things into legal order, right. And so again, I think about the Civil War. You know, after the US Civil War, lots of civil wars, sorry. American-centric person trying to fight against it.
But after the US Civil War, you know, the courts took a pause. And then we have a lot of cases where they took a lot of the things that Lincoln did, they said, okay, some of them at least were illegal, some of them were legal, but only under very specific circumstances.
And so they actually built legal doctrine that took into account the emergency that Lincoln faced, and then later wars, such as in the Second World War, the courts took the lessons from the experience in the American Civil War, and used that to impose more constraints.
So to bring it about that the emergency actions that Franklin Roosevelt took in the Second World War weren't completely sui generis, sort of like right acts of sovereignty, but were regulated by legal rules created during the Civil War, and after the Civil War.
And again, they weren't perfect, right? You know, during the Second World War, the United States interned Japanese Americans, you know, again, sort of completely lawless, completely unjustifiable, but you know, it's an ongoing process. The point is that the legal system is always... the law is always reactive in emergencies.
But the reactive character of the law can nonetheless be used as a way to control and channel sovereign power, even in these sort of Schmittian emergency situations.
So two related questions, your work is interdisciplinary, because you try to blend a lot of social science into legal philosophy. But speaking of legal order and your primary profession, I mean.. for the sake of the audience parties into a lot of other cool stuff, I'm going to be putting up his website in the show notes.
But speaking of legal order, and the legal profession, why is so much of the legal profession fascinated with what I would say the rule by law, as opposed to the rule of law. A lot of what you get from lawyers, even some law professors in some situations is [that] the law is the law, and you have to obey it.
And even if you are going to question it, however unjustified it may seem, you still have to follow some processes that maybe for ordinary citizens are not so accessible or extremely costly, you know, which I think violate regularity, right, the way you talk about it retrospective legislation, and so many other things. So why is the legal profession so fascinated with the law, as opposed to justification for the law?
Yeah, I think that question kind of answers itself, right. It's unfortunate... I mean, it's sort of natural but it's unfortunate that the people who most influence our dialogue about the way that we, you know, live in [the] society together with a state, namely by organizing ourselves with law happen to be people who are the specialists who find it easiest, right?
And so I think the simple answer is right on this one, at least in countries like the United States, I'm not sure how true this is in other countries. But in the United States, the domination of legal discourse by lawyers necessarily means that the sort of real practical, real-world ways in which ordinary people find interacting with anything legal to be difficult, oppressive, or both just aren't in view, right? This is hard for them to understand.
But I think in the US, one of the distortions that we've had is that we have an extremely hierarchical legal profession, right. So we have very elite law schools, and those very elite law schools - one of which I teach at - tend to predominantly produce lawyers who primarily work for wealthy corporations and sort of secondarily work for the government. Those lawyers tend to be the ones that end up at the top of the judiciary, that end up in influential positions in academia, that end up, you know, in Congress.
The lawyers that, you know, see poor people, see people of subordinated minority groups and see the very different kinds of interactions with the legal system that people who are worse off have, that see the way that the law presents itself, not as a thing that you can use autonomously to structure your own life. But as a kind of external imposition, that sort of shows up and occasionally inflicts harm on you.
Those lawyers aren't the ones who end up in our corridors of power. And it's very unfortunate, it's a consequence of the hierarchical nature of, at least in the US, our legal profession. And I suspect it's similar in these other countries as well.
In your opinion, what's the... dare I say the sacrosanct and objective - those are rigid conditions sorry - expression of the rule of law? The current general conception of the rule accedes to the primacy of the Constitution, right.
I've often found that problematic because in some countries you find constitutional provisions that are egregious, and in other cases, you find lawyers going into court to challenge certain actions that they deem unjust, or that are truly unjust on the basis of the same constitution. Right. So what do you think is the most practical expression of the rule of law? Is it written laws? Is it the opinion of the judges? Is it how officials hold themselves accountable? What's the answer?
So I think I'm gonna like sort of twist this a little bit and interpret that question is like, how do you know the extent to which the rule of law exists in a particular place? And my answer is, can ordinary people look officials in the eye, right, you know... if you're walking down the street, and you see a police officer, you know, are you afraid? Or can you walk past them and confidently know you're doing nothing wrong so there's nothing really effectively but they can do to you, right?
If you're called in to deal with some kind of bureaucratic problem, like the tax office, can you trust that you exist in a relationship of respect? You know, can you trust that when you show them, actually here are my receipts, I really did have that expense, that that's going to be taken seriously? You know, if people, everybody, feels like they can stand tall, and look government officials in the eye, then to that extent, I think that the rule of law exists in a society.
Final question, what's the coolest idea you're working on right now?
Oh, gosh. So like I said, I've got two books under contract right now. The first book is a history/theoretical constitutional law account of the development and existing state of the rule of law in the United States.
The second book, which I'm more excited about, because it's the one that I plan to write this year, but it's also a lot harder, is I'm trying to take some of the governance design ideas that we see from the notion of rule of law development, and others such as governance development things and apply them to Private Internet platforms, right? Like, basically to Facebook.
Um, I was actually involved in some of the work, not at a super high level, but I was involved in some of the work in designing or doing the research for designing Facebook's oversight board. And I'm kind of trying to expand on some of those ideas and think about, you know, if we really believe that private companies, especially in these internet platforms are doing governance right now, can we take lessons from how the rest of the world and how actual governments and actual states have developed techniques of governing behaviour in highly networked, large scale super-diverse environments and use those lessons in the private context?
Maybe we can maybe we can't I'm not sure yet. Hopefully, by the time I finish the book, I'll know.
That's interesting. And I'll ask you this, a similar, I'll say a related situation is currently happening in Nigeria right now, where the President's Twitter handle or username, tweeted something that sounded like a thinly veiled threat to a particular ethnic group. And lots of people who disagreed with that tweet reported the tweet, and Twitter ended up deleting the tweet in question, which high-level officials in Nigeria found extremely offensive, and going as far as to assert their sovereign rights over Twitter and say, well, it may be your platform, but it is our country and we are banning you.
How would you adjudicate such a situation? I mean, there's the question of banning Donald Trump from the platform and so many other things that have come up.
Yeah, I mean, it's hard, right? So there are no easy answers to these kinds of problems. I think, ultimately, what we have to do is we have to build more legitimate ways to make these decisions. I mean, here are two things that we cannot do, right?
Number one is we can't just let government officials, especially when, you know, as with the Donald Trump example, and so many others, the government officials are the ones who are engaging in the terrible conduct make these decisions.
Number two is we also just can't let a bunch of people sitting in the Bay Area in California make those decisions. Like, ultimately, this is on, you know, property in some abstracted sense of like the shareholders of these companies. But we cannot simply allow a bunch of people in San Francisco, in Menlo Park, and you know, Cupertino and Mountain View, and all of those other little tech industry cities that have no understanding of local context to make the final decisions here.
And so what we need to do is we need to build more robust institutions to include both global and local and affected countries, grassroots participation, in making these decisions. And I'm trying to sort of sketch out what the design for those might look like. But, you know, talk to me in about a year. And hopefully, I'll have a book for you that will actually have a sketch.
You bet I'm going to hold you to that. So, a year from now. So still on the question of ideas, because the show is about ideas. What's the one idea you'd like to see spread everywhere?
Oh, gosh, you should have warned me in advance... that... I'm going to go back to what I said at the very beginning about the rule of law. Like I think that the rule of law depends on people, right? Like there is no such thing as the rule of law without a society and a legal system that genuinely is equal and advantageous to ordinary people enough to be the kind of thing that people actually support.
Like ordinary people... if you cannot recruit the support of ordinary people for your legal political and social system, you cannot have the rule of law. That's true whether you're a developing country, that's true whether you're the United States, right. Like I think, you know, part of the reason that we got Donald Trump in the United States, I think, is because our legal system and with it our economy, and all the rest are so unequal in this country, that ordinary voters in the United States didn't see any reason to preserve it.
Right and so when this lunatic and I mean, I'm just going to be quite frank here and say Donald Trump is a complete lunatic, right... when this lunatic is running for office who shows total disregard for existing institutions, like complete willingness to casually break the law.
An electorate that actually was full of people who felt (themselves) treated respectfully and protected and supported by our legal and political institutions would have sent that guy packing in a heartbeat. But because the American people don't have that experience right now, I think that's what made us vulnerable to somebody like Donald Trump.
Thank you so much, Paul. It's been so fascinating talking to you.
Thank you. This has been a lot of fun. Yeah, I'm happy to come back in a year when I've got the platform thing done.
Yeah, I'm so looking forward to that.