Baselines

Twenty years ago, I taught a course at Kean University on the rule of law. At the time, it was in the political science department. I’m beginning to think that now it would belong in the history department.

Back in those relatively halcyon days, critiques of the rule of law tended to come from the left. They ran along the lines of “surface objectivity naturalizes underlying inequality.” Many of them were variations on Anatole France’s line “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges.” Postmodern critiques focused on law as constitutive, rather than simply regulatory; Foucault’s “Discipline and Punish” was a prominent example. And there was certainly no shortage of arguments that enforcement was uneven, in predictable ways, along lines of race and class.

But what most of those arguments shared (the postmodern one is ambiguous) was the idea that fairness to everyone was a worthy goal, and that the law offered a sort of baseline. The critiques that stung were the ones that pointed out that formal legal equality, by itself, is weak tea in a setting of wild economic coercion and endemic racism. They didn’t so much reject the idea of baseline rules as suggest that they don’t go nearly far enough.

Over the past few years, and especially this year, I’ve seen an entirely different critique of the rule of law gain currency. It’s more accurately described as a recrudescence of something primal. Whether it’s grand juries acquitting police who kill innocent Black people or the president of the United States suggesting that the peaceful transition of power is somehow optional, the common denominator is clear: domination by a small group is the point, and law is simply a tool. When the tool doesn’t fit the task, it can be discarded for another one.

In other words, the newly ascendant view takes a different baseline. Instead of taking law as a baseline, it takes dominion as a baseline. Law, in this view, is only relevant when it serves dominion. In the phrase “law and order,” order is the key word. And it’s a specific order. Laws that don’t serve that order can be, and are, disregarded at will. Double standards are a basic organizing principle.

As the journalist and national treasure Sarah Kendzior has pointed out, calling this group “fascist” isn’t quite accurate. Fascists center all power in the state. This group doesn’t care about the state. It wants status for itself, with chaos dividing everyone else. Perhaps coincidentally, it’s exactly what Putin did to Russia. There’s a playbook and a track record.

I think this, along with the pandemic, is why so many good and decent people are utterly exhausted right now. Our baseline expectations of fairness are under sustained assault, and a mystifyingly large percentage of the population is seemingly OK with it. Liberals and conservatives, for all of their differences, accepted certain ground rules. This group doesn’t. To them, the only ground rule is “we win.” If that requires cheating, or poisoning, or imprisoning, then that’s what it requires.

Flawed though it is, the idea of the rule of law should not be consigned to the dustbin of history. It’s based on the simple truth that we’re all just human, with the same flaws. We have the same needs and are prone to the same failings. There is no Übermensch, or master race, or “elect.” There’s just us and how we treat each other. Nobody should get killed by police for the crime of being in their own home, not bothering anybody. By the same token, nobody gets to be ruler for life. Laws are human creations to allow humans to live together decently. There’s plenty of room for debate about better or worse laws, and there should be. But debate only matters if everyone’s voice matters.

Of course Black lives matter. Of course Breonna Taylor matters. Those shouldn’t be political positions; those should be baselines. To the extent that those statements seem partisan or political, we’re on a path to dark places.

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A correction: In response to the piece earlier this week about the liberal arts, a reader alerted me that I had gotten the “A&M” abbreviation for some universities wrong. It actually stands for “Agricultural and Mechanical,” not “Agricultural and Military.” I regret the error.