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Sunday, June 15, 2008

Rule of the Gun or the Rule of Law

Rule of the Gun or the Rule of Law
Image © Austin Cline
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Is it really necessary to ignore the oldest and most fundamental principles of law in order to combat terrorism? The American Right certainly seems to think so and their reaction to the new Supreme Court decision in Boumedienne et al v. Bush is almost uniformly one of condemnation, dire warnings, and outrage. I don't think that that the American Right would react with any greater outrage short of seeing Hillary Clinton placed on the Supreme Court. Clearly, the mantra that they "hate us because of our freedoms" has been fully transformed by the Right into the belief that "therefore, we need to be less free."

Both liberal and conservative political movements or parties can develop into more authoritarian versions of themselves; there is nothing about either that requires this nor that can absolutely prevent it. The difference, I think, has a lot to do with how much people are able or willing to trust their political and legal institutions, traditions, and procedures to meet new challenges. A liberal who loses confidence that traditional liberal, democratic politics can successfully meet the threats of global warming, for example, might move towards more authoritarian solutions to the problem.

Although the existential threat posed by a few Muslim terrorists is arguably far inferior to that of worldwide warming, the American Right does seem to have lost any confidence that this threat can be successfully overcome without radical changes — and radically authoritarian solutions. Defenders of democracy and liberty have long recognized that the ability of liberal, democratic states to overcome outside threats depends greatly on their ability to maintain the people's faith in their system of government. Sir Ernest Simon wrote an article called "Democracy and Nazism" for the January, 1940 edition of the Political Quarterly in which he quoted the Association for Education in Citizenship:

“The authoritarian states seem to have been successful in creating-at least for a time-a high degree of enthusiastic and self-sacrificing devotion among their followers. We cannot expect, or even desire, the same blind fanaticism among lovers of reason and liberty, for fanaticism is the enemy of liberty. It is the task of democracy not to imitate the irrational enthusiasm of its enemies but to cultivate reason and tolerance while combating cynicism and indifference; to do all it can to foster the steady growth among its citizens of a deep and abiding and even passionate faith in the justice and rightness of its principles.”

Perhaps the most basic principle that has been threatened by the American Right is the principle of the rule of law — the idea that there are neutral laws which apply equally to all and that the arbitrary whims of individual people must be subordinated to this. Walter Lippmann called the idea of arbitrary power being exercised over man as "alien to the very conception of civilised society" For Luigi Sturzo, the protection of neutral laws for all people, "without distinction of race or opinion, is the first, the lowest rung of freedom. If this no longer exists, a country has no right to call itself civilised or Christian.”

Glen Greenwald has contrasted the behavior of the American Right to Britain's conservatives. Whereas American conservatives don't seem to have encountered an expansion of arbitrary presidential or police powers which they dislike, British conservatives recently went on the attack against encroachments on British civil liberties. Former conservative Prime Minister John Major recently wrote an editorial complaining about how "civil liberties are slowing being sacrificed" in reaction to a proposal that terrorist suspects be detained without charges or trial for 42 days. American conservative John McCain whines that forcing the government to bring terrorist suspects to court after six years is "one of the worst decisions" in American history.

The differences couldn't be more stark; America is supposed to enjoy the inheritance of British civil liberties and we can trace the concern with arbitrary power back quite a long ways. Ernest Simon also quotes Sir Edward Coke, a famous jurist noted for his opposition to parliament's interference with common-law courts, who wrote in the 1600s:

“But now copiholders stand upon a sure ground, now they weigh not their Lord’s displeasure, they shake not at every suddaine blaste of wind, they eate, drinke, and sleepe securely; onely drawing a special1 care of the maine chance to perform carefully what duties and services soever their Tenure doth exact, and Custome doth require; then let Lord frowne, the Copy holder cares not, knowing himself safe and not within any danger, for if the Lord‘s anger grow to expulsion, the Law hath provided several1 weapons of remedy; for it is at his election either to sue a Subpena or an Action of Trespass against the Lord.”

British citizens slept soundly because they could have faith in their laws and legal institutions to protect them. British conservatives, along with some liberals, are fighting to ensure that that faith is well earned by preserving British civil liberties against the encroaching surveillance state and ubiquitous CCTV cameras. American conservatives, in contrast, have lost any confidence in American cultural, legal, and political institutions to stand strong against the threat of terrorism. They believe everything will buckle and so seem determined to push it down now themselves so they can build something stronger — and more authoritarian — in its place.

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