The Rule of Law

Supreme Court nominee Alito has said that a judge's only obligation "is to the rule of law” (CNN). That is the truism of the day. And it is true not only for the judicial branch of government, but as much for the executive too.

In the western world we are all children of revolutions with the same theme: the eradication of arbitrary government, the rule of law and the trias politica – the separation of powers – which was most rigidly installed in the US Constitution.

Well indeed, Senators in the US who are so eager to grill Alito with questions on divisive topics such as abortion, equal rights, the right to privacy, gun control etc. should first and foremost check with themselves whether at all times they have been sufficiently critical about the actions – particularly in recent times – of the executive branch in these dimensions and whether in fact, they are not at the same time – potentially – pointing their finger to weak spots in the American res publica that most of all they can be blamed for themselves.

Of course, the people’s representatives in the Congress have a right – if not the obligation – to examine whether Alito has been truthful to the rule of law in his actual record as a lawyer and a judge. But they would be doing a very bad job if actually they are trying to probe into Alito’s opinions on matters of policy or legislation, which can only be resolved by the legislative branch.

I am well aware that law is a living phenomenon. Law arises from legislation – and judicial practice. So, in part, the judicial branch does have an influence on the actual outreach of the law. But even then, the sense of the law (and not of public opinion, let alone of someone’s private opinion) is its one and only source.

I have no position on Alito personally. That’s quite beyond me. But public proceedings on nominations such as a judge of the Supreme Court are extremely important in terms of testing the legal and public morality of a nation. So I follow it with keen interest.

I have been active in the sphere of - the Dutch – public administration most of my life and I have always taken an active interest in politics. In many ways I am the child of a period when government policy and especially policymaking was having its heyday. We loved the idea of changing the world – for the better. The legislative part of policymaking always came as an inevitable burden, preferably to be avoided. At that time, some twenty-five years ago, a good friend of mine completed his Ph-D on the very subject of the rule of law: there can be no policymaking, he said, unless it is a strict execution of the law. He was right, I knew, but I also felt a little uneasy. Policymaking, government, having influence and all that, is quite addictive. The tendency is to extend the law – as much as you can, to find all kinds of excuses to evade it; the only thing that mattered – we were inclined to think – was the benevolence of our policies. And benevolence came in plenty!

Later I learned that benevolence throughout history has been the greatest source of human terror and destruction – not otherwise. So I have grown a little more cautious about good ideals before they are fully supported by the voice of the law – the voice of our legislators.

Today my good friend is a member of the Dutch Council of State, the highest advisory body in our government. So, I feel quite assured about the rule of law in my own backyard.

I am far less assured about the rule of law in the United States. I truly hope that Congress will be as vigorous about it v.a.v. the Executive as it now appears to be v.a.v. the Judicial. It would make our world so much better to look at.