The rule of law, like democracy itself, is grounded in intangibles: in a faith in reason, logic, and humanitarianism, a belief, as Socrates said in Plato’s Gorgias, that it is better to suffer injustice than commit injustice, and in a belief in verifiable fact, the possibility of delineating truths and untruths. The primacy of these virtues makes the rule of law possible. Without them, the law becomes farce, an instrument not of justice but oppression.
These intangibles are inculcated into a society through religious belief and education as well as through democratic participation. Personal morality translates into social morality. Only with a widespread faith in reason and humanitarianism, and a consensus that one must always act morally, even if it means facing persecution, can the rule of law be built. If that ethic is absent, then justice is impossible and the rights of the individual are meaningless. Jean-Jacques Rousseau understood the danger of divorcing the law from reason and ethics, writing, “I refer to morals, customs and, above all, belief: this feature, unknown to political theorists, is the one on which the success of all laws depends.”
Moral philosophers have long argued, as far back as Plato and Aristotle, that a moral education and moral sentiment inculcated into the public is the foundation of the rule of law. The final arbiter is not the law itself, for the law, as we see in totalitarian societies, can as easily be used as an instrument of injustice as of justice. Tyrannies make war, for this reason, on the belief in virtue.
Democritus, the pre-Socratic philosopher, understood that open societies are rooted in this intangible individual ethic. He wrote:
Not out of fear but out of a feeling of what is right should we abstain from doing wrong… Virtue is based, most of all, upon respecting the other man… Every man is a little world of his own… We ought to do our utmost to help those who have suffered injustice… To be good means to do no wrong; and also, not to want to do wrong… It is good deeds, not words, that count… The poverty of a democracy is better than the prosperity which allegedly goes with aristocracy or monarchy, just as liberty is better than slavery… The wise man belongs to all countries, for the home of a great soul is the whole world.
His wisdom would be echoed throughout the centuries.
“It is not what a lawyer tells me I may do, but what humanity, reason and justice tell me I ought to do,” Edmund Burke thundered in the House of Commons.
American jurist Learned Hand, in a 1944 speech on “The Spirit of Liberty,” wrote: “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”
Neither the absence nor the presence of legal institutions or just laws, as Democritus, Rousseau, Burke, and Hand understood, guarantees justice, for as Montesquieu, himself a judge, observed, “There are good laws everywhere.” The question is whether these laws are fairly executed. And these laws will only be fairly executed if there is a consensus within the society that virtue and justice are more important than the petty concerns of the self.
I have reported from Hobbesian worlds where there is no rule of law, including El Salvador, Bosnia, Kosovo, northern Albania, and the Congo. In these worlds justice is deformed into vengeance. It is the prerogative of the powerful. Policing is controlled by warlords and militias. Bribery is rampant. The capacity to inflict violence is the primary criterion for power. Competing armed bands, led by gangsters and warlords, who usually have short life spans, terrorize the innocent to loot and pillage.
But centralized authority, a legal code, and a judiciary are also no guarantee of a civil society, as Stalin’s purges and show trials illustrated. Tyrannies use the pretense of law and the formal institutions designed to protect us from the abuse of power as instruments of repression, turning due process into farce. They condemn those who demand justice as subversive and ruthlessly silence them.
This world without justice breeds not only cynicism—a belief that, since the structures of power are hostile, appeals to virtue are meaningless—but despair. Hypocrisy and deceit become essential to remain integrated into the society. This moral squalor creates a schizophrenic existence. Moral behavior is reduced to the private sphere, at best, and abandoned in the public. Indeed, to live in totalitarian societies such as fascism or communism, it is imperative that in public the lies told by the state are parroted back and embraced. Repeating these lies is a prerequisite not only for work, advancement, and social status, but for survival.
The moral decay in Western society, and in particular in the United States, where the cult of the self is celebrated at the expense of justice, undercuts the foundations that make the rule of law and democracy possible. This exclusive and obsessive focus on the self is fostered by the corporate state, as it was in fascist and communist states, not only to compensate for the loss of political freedom but to erode the virtues that make justice possible.
The left is as infected with the cult of the self as the right. The hookup culture, the sexual sadism of our pornified society, the salivating over obscene wealth and celebrity, the fostering of self-presentation on social media at the expense of the truth, the quest for eternal youth, the Cancel Culture, the investment of emotional and intellectual energy into spectacle—from sports to Hollywood—the narcissism of a perverted how-is-it-with-me form of spirituality, and the giddy consumerism—all buttress the system of corporate totalitarianism. The cult of the self, the core belief of all despotisms, erodes private morality until it is as bankrupt as public morality. It diverts the public’s focus from social, political, and economic inequality to the trivial, the banal, and the superficial.