Though often brought up in discussions of national and international law, the rule of law depends on two main factors that make it particularly challenging to achieve on such large scales. First, the means and will to impartially and predictably enforce laws must be present. Second, the law must be inline with the culture of the people under it. If either of these factors is missing, the rule of law will erode.
Societies governed by the rule of law are the opposite of those in which “might makes right.” In the latter type, individuals use force to assert their will over others. On the other hand, in a society with a strong rule of law, force is used mostly, ideally only, to enforce laws, which apply to all those in a society, regardless of their individual power and status. Force remains, however, crucial to the integrity and legitimacy of the law, as without it the incentive to obey laws is likely to be insufficient. Additionally, under the rule of law, this force is generally provided by an external, hopefully impartial, source, “the authorities,” as opposed to being administered by those directly involved in conflicts and legal transgressions. U.S. Supreme Court Justice Felix Frankfurter highlighted the importance of impartial legal administration in United States v. United Mine Workers (1947):
There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.
For example, when a thief attempts to steal, under successful implementation of the rule of law, that thief will suffer the sentence for theft as prescribed by the law, regardless of whether the theft is shoplifting or committing white-collar cybercrime, and that sentence will be enforced by a dedicated court of law backed by cooperative direct law enforcement (police, military, etc.).
Force, however, is not enough. Rather, people must, in general, wish to comply with — or at the very least not resist — the laws that govern them. Here is an explanation from the American Bar Association:
It is very difficult for a nation to maintain the rule of law if its citizens do
not respect the law. Assume that people in your community decided that
they didn’t want to be bothered by traffic laws and began to ignore stop signs
and traffic signals. The ability of police officers to enforce the laws would
be overwhelmed and the streets of your community would quickly become
a chaotic and dangerous place. The rule of law functions because most of us
agree that it is important to observe the law, even if a police officer is not
present to enforce it.
Customs, cultural norms, and behavioral expectations are all crucial to maintaining the integrity of the law, as they predispose people to view certain choices as normal, socially acceptable courses of action and help to constantly “enforce” laws through social approval and condemnation. Because jaywalking, though illegal, has little social condemnation in most parts of the United States, enforcing punishments for it is a low priority for law enforcement, and the risks of committing the crime are often not enough to significantly alter pedestrian behavior.
Another crucial contribution of culture to the rule of law is legal education. Ideally, all laws would be simple and accessible enough to be known by all those they affect. The reality, however, is that most people have at best a clear understanding of a small subset of their legal system. The effect is that the vast majority of people’s behavior is not altered so much by the written law as by popular perception of it, which may, depending on the culture and the abundance of education, be next to nothing. The main solution implemented to address this problem is to provide legal counsel and representation. Unfortunately, because counsel is provided only after violation of a law or when personally sought out by those who can afford it, its benefits are limited to mitigating the effects of legal ignorance rather than addressing the ignorance itself. Other partial solutions addressing that ignorance include implementing forms of legal education in primary and secondary schools, creating more economically accessible law degrees, and simplifying legal language to improve its intelligibility to the uninitiated. All of these solutions are attempts to reduce the gap between popular and professional legal understandings, but even taken together they are not sufficient where that gap is large—that is, in any modern society. Ultimately, it is the task of lawmakers and law enforcers to make effective laws conspicuous (and so known) to people they affect and to alter or remove laws that are not effective and not worth making conspicuous.
People will only obey laws they are aware of, but knowledge and education alone are insufficient. Laws that deviate too far from popular cultural and ethical values will be seen as arbitrary or cruel, rendering force once again the sole incentive for obedience. Adjusting the law is a necessity for any nation to endure; as its culture and popular values shift, its laws must accommodate that shift or eventually be rendered “unjust.” This situation was captured by Martin Luther King, Jr. in “Letter from Birmingham Jail”:
I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.
Culture, however, is far from uniform, and diversity of culture and belief often leads to disagreement on the interpretation and advancement of the law. One of the main roles of politicians and lawmakers (and perhaps, indirectly, voters) is to find common ground in forming and reinterpreting laws.
When politicians begin routinely catering to specific interest groups at the expense of the people as a whole, they create a culture of faction and instability that is incompatible with the rule of law. Partial and partisan writing of the law is not far removed from partial and arbitrary enforcement of the law.
It follows that the task of maintaining popular support for the law is more difficult, and perhaps more critical, in societies with a greater range of social, cultural, and economic backgrounds. (Take for instance, the ongoing challenge of balancing the differing and often conflicting needs and objectives of urban and rural populations of the United States that has directed much of the nation’s political discourse and history.) Chief Justice John Marshall’s statement in Cohens v. Virginia (1821) that the “people made the Constitution and the people can unmake it” speaks to the fact that laws are only as strong as their support by those who follow and enforce them. Lawyers, judges, police officers, and all others in the legal system must show this support by striving to represent and implement the law as impartially and consistently as possible. Politicians and lawmakers must ensure that the law closely adheres to the cultural and ethical expectations of the people. Citizens, for their part, must be both educated about the laws they are expected to follow and view the law as important enough to obey. When support and respect for the law is diminished among any segment, force becomes the fallback plan in maintaining the strength of the law. As force becomes the dominant motivation for obeying laws, the rule of law begins to deteriorate, and the society runs the risk of slipping once again toward the rule of individual power (might makes right). This risk is greater when the challenge of balancing the interests of all elements of society is greater. When support from a sufficiently strong coalition of elements of society is maintained, this is the rule of law.
The components that make rule of law, force and culture, are intensely interdependent. Impartial and predictable force gives voice and power to laws that exist above individuals and embody cultural expectations. Culture determines the normal actions of members of society, members’ understandings of the law, and their willingness to comply with force. Together the two guide behavior toward established norms, creating the viable courses of action and the dependable results that build just societies.