Is the Rule of Law Itself Under Assault?

Today, in multiple countries around the world, some people advocate getting rid of the apparatus of government and the rule of law—to “deconstruct the administrative state,” as one pundit put it.

In common catchphrases like “the deep state,” “hidden government,” and “military-industrial complex,” we can hear the fears of a significant part of that alarmed government-disparaging populace, who have lost faith in the idea that their governments will protect their freedoms and safeguard their rights. From this viewpoint government, instead of its traditional role protecting its people, becomes the enemy. 

Modern electronic surveillance methods have deepened these suspicions. In fact, eight out of ten Americans, according to a 2018 Monmouth University poll, believe that the United States government currently spies on or monitors their activities. Whether true or not, this widely-held belief, which spans the political spectrum from far-right to far-left, creates suspicion, engenders rumors and full-blown theories about shadowy conspiracies, and erodes the public’s trust in their elected representatives and civil servants.

Another recent poll from Axios shows how far that mistrust has permeated the United States, impairing our ability as a society to trust our institutions and even agree on science and facts. Using just one example, the poll showed that fully two-thirds of Americans believe their government is not truthfully reporting the death toll from the Covid-19 pandemic. The poll found that:

• A majority of Democrats, around half of independents and one in four Republicans say they think virus-related deaths are being undercounted.
• Republicans lead the pack among those who instead think the deaths are being over-reported, while fewer than one in 10 Democrats agrees.

Going far beyond hyper-partisanship and political polarization, these results demonstrate how an abiding lack of trust in government shapes popular views of reality, causes citizens to question the underlying morality of their society’s laws and structures, puts the health of the country at risk, and ultimately pits people against each other. But more importantly, the poll’s findings call into question our continuing future ability to function as a cohesive society.

The Morality of the Law

What keeps a society together? What makes a culture cohere? Political scientists and historians have concluded that a moderate, balanced application of societal laws, and a generally-shared acceptance of the morality underpinning them, provides the social glue that unites and binds together any cohesive group of people. When a society bases itself and its laws on a generally-accepted framework that most people perceive as fair and just, then it can cohere. If that agreement breaks down and extreme factions, leaders, or laws develop, societies inevitably falter and fail. 

The Baha’i teachings clearly point this out:

It is incumbent upon them who are in authority to exercise moderation in all things. Whatsoever passeth beyond the limits of moderation will cease to exert a beneficial influence. Consider for instance such things as liberty, civilization and the like. However much men of understanding may favourably regard them, they will, if carried to excess, exercise a pernicious influence upon men. – Baha’u’llah, Tablets of Baha’u’llah.

Baha’u’llah taught that an equal standard of human rights must be recognized and adopted. In the estimation of God all men are equal; there is no distinction or preferment for any soul in the dominion of His justice and equity. – Abdu’l-Baha, The Promulgation of Universal Peace.

These two passages refer to what philosophers call natural law. In both Eastern and Western philosophy the entire concept of natural law maintains that all people have inalienable rights—not conferred by any particular government, but by the Creator, nature, or reason. This idea of natural law underpins all of our milestone human rights documents: the American Declaration of Independence, the French Declaration of the Rights of Man and of the Citizen, and the U.N.’s Universal Declaration of Human Rights. These documents all acknowledge that morality and law have a mutual, synchronized role in society.

Unfortunately, though, many countries around the world have recently seen an upsurge in elected or appointed officials who call into question the very structure of modern democratic government and the rule of law itself. Historically this dynamic has always taken place, because power does have a tendency to corrupt, but lately it has appeared even in advanced democracies, where we least expect it.

Assaulting the Rule of Law

Tyranny, dictatorship, despotism—call it what you like, all of these forms of governance exalt the ruler above the ruled, privileging raw power and reducing human rights. These forms of authoritarian governance all mount a frontal assault on the rule of law. To avoid this kind of oppression, legal scholars and the Baha’i teachings assert, we need a governmental structure that not only protects individual rights and responsibilities, but one that utilizes the moral lessons we can learn from religion. 

Constitutional scholars Cass Sunstein and Adrian Vermeule, law professors at Harvard and the authors of “Law and Leviathan: Redeeming the Administrative State,” recently wrote in the New York Times:

To protect health and safety, and freedom itself, any advanced nation needs strong public bodies acting for the general welfare. But it also needs the rule of law, and the principles of law’s morality offer the best and most useful conception of the rule of law today.

In an address he gave in Stuttgart, Germany in 1913, Abdu’l-Baha defined law’s morality as a single continuous proclamation of divine love and human unity:

Baha’u’llah proclaimed the ideal of universal peace among religions. The fundamental principle of religion is one and the same—all the prophets guided mankind to divine love. They have called them to the knowledge of God. They have taught them the unity of the human race. They have summoned them to the furtherance of human virtues. They have enlightened the fundamental law of morality. – Star of the West, Volume 3.

So with this lofty and noble conception of the relationship of morality and law, where do Baha’is draw the line between the two? What happens when a spiritual law conflicts with a moral or spiritual one?

For Baha’is, who follow the civil laws of their respective countries, the dividing line is relatively simple—Baha’is obey the duly-constituted legal system of a just country unless it contravenes their inner religious beliefs and convictions. As Abdu’l-Baha wrote, “… Baha’is are the well-wishers of the government, obedient to its laws and bearing love towards all peoples.”

However, if the legal system requires its citizens to violate or transgress the innermost principles of faith, the Guardian of the Baha’i Faith Shoghi Effendi counseled, those principles should never be compromised:

For whereas the [Baha’is] should obey the government under which they live, even at the risk of sacrificing all their administrative affairs and interests, they should under no circumstances suffer their inner religious beliefs and convictions to be violated and transgressed by any authority whatever. A distinction of a fundamental importance must, therefore, be made between spiritual and administrative matters. Whereas the former are sacred and inviolable and hence cannot be subject to compromise, the later are secondary and can consequently be given up and even sacrificed for the sake of obedience to the laws and regulations of the government. – from a letter to an individual Baha’i written on behalf of Shoghi Effendi, 11 February 1934.

We owe a great deal to our civil governments, which for the most part protect us and allow many of us to thrive. No government is perfect, of course, but uniting to make our governments more morally and spiritually responsible, more peaceful and just and sustainable, will allow our flawed human governance to evolve and improve.