Faculty of Law, University of Oslo, Oslo, Norway
Rule of Law and Wicked Rulers
The Ideal of the Rule of Law
In the legal traditions both of common law and European civil law, legislators and judges work together to uphold the rule of law and to protect individual rights. The legislator, preferably on a democratic basis, enacts general legislation. This legislation is binding on the officials of the state, as well as on the citizens. The courts interpret and apply this legislation and ensure that the commitments and rights are awarded according to law. This is the prevailing self-understanding of liberal democracies. Since the birth of liberal constitutions in the United States and Europe after the Enlightenment, individuals have been given constitutional rights that limit the state’s use of power over them. Central elements of the rule of law as understood in liberal democracies are the principle of legality, the division of power, and due process. The state should use its power according to laws enacted by a democratic legislator that acts according to a legitimate authorisation. These laws should be general in nature and apply equally to all. The scope of the laws should be determined by independent courts, which should also be responsible for their application and enforcement. The proceedings before the courts should be impartial and treat all parties equally, giving them the opportunity to present their case and protect their rights before any decision is made.
In some cases, the rulers in power depart from this model. They exercise powers outside of the scope of the law and even in contradiction to it. They issue discriminatory legislation and disempower the courts so that these no longer have the final word on the interpretation and application of the law. They use their power to wage war against law as it is perceived in liberal societies.
The judge in any legal order is expected to apply the law, not to create or modify it. The separation of functions between the legislator and the judges is a crucial distinction in most legal orders. It is definitely a part of the values recognised by the rule of law. This separation of functions requires that judges show restraint when they consider policy and that they do not substitute their own values and preferences for those of the law. In this sense, “positivism” explains the cooperation of the judge with the aims of the legislator. A wicked law places the judge in conflict with the core of the judicial role.
All legal theories accept that the legislation, both its positive wording and the aims behind it, is a main source of law. That the judge has a duty to take the legislation into account is not a matter of controversy. The difficulty arises if the duty to follow the law also entails a duty to apply non-positive norms and values even in opposition to legislation and, further, if there are limits to the duty to apply the law. Some make the case that the judge under certain circumstances has a duty to depart from the law in order to avoid an unjust result. Also, the question of what the judge should do in cases where he has no duty to apply the law is controversial. Should he abstain, resign, or even take decisions against the law?
One of the challenges to judges in such situations is how to cope with the expectations that stem from the established judicial role. This is not, first and foremost, a problem of legal theory but of professional ethics. The words of South African judges in their written submission to the Truth and Reconciliation Commission are typical of the way this is seen by judges:
A judge, whether positioned by personal conviction on the left, center, or right of the political spectrum, who feels free to ignore the oath of office when compliance with it conflicts with his or her own credo, is no hero. Such conduct is bereft of integrity and is a self-indulgent abuse of judicial power. There are only two honest courses open to a judge in such a situation: either resign or comply with the oath of office.1
This might be framing the question in too simplistic terms. The judicial role can be understood in several ways and entails varying degrees of both autonomy in relation to the legislation and scope for judicial creativity. The rule of law entails more than just applying the laws enacted by the legislator. Also, the rule of law is an elusive concept and comprises many values and principles. It is furthermore difficult to speak with precision on this subject across the divide of common law and civil law jurisdictions.
The ideology of the rule of law draws its origins from the idea of the secular state established in Europe in the eleventh century. The forces that constituted the secular state were in essence the idea of a state “ruled by law”, a Rechtsstaat. Its two main elements were that the heads of the states would enact laws and establish legal orders, rule by law, and that they would be bound by the laws thus enacted until they changed the law in lawful forms, rule under law.2 It is a feature of the concept of the rule of law that law is derived from or rooted in a reality transcending the existing structure of political power, be it in divine and natural justice or in beliefs in human rights and democratic values.3 Also, today we can speak of a core common to the western legal orders. Many would agree with Ronald Dworkin’s claim “that the most abstract and fundamental point of legal practice is to guide and constrain the power of government in the following way. Law insists that force not be used or withheld, no matter how useful that would be to ends in view, no matter how beneficial and noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified”.4
Recent research on judges and authoritarian regimes has employed a working concept of the rule of law in studies on legal institutions and the role of legal professionals, referring to a common minimum core of demands to a legal order. These demands comprise two different norms: firstly, that the government rule by law, that is by general rules, and is itself governed by and obey the rules and, secondly, that there must be a core of individual rights inherent in the law.5 The concept of the rule of law thus coincides with a legal concept of political liberalism also employed in such studies. Political liberalism in this sense consists of a society that protects basic freedoms, where the state is moderate and where civil society is present.6
Departures from the Ideal
Liberty and rule of law are ideals, and as ideals they are realised in various degrees in any given society. There are no universal, generally accepted standards to determine what limits the rule of law imposes on legislative discretion. Positive law has limits, such as the various human rights regimes and the constitutional law of many municipal legal orders. But the lack of universal criteria shows itself when the legislator changes the constitution or enacts law in open contradiction to international law.
More often than not, social, economic, and cultural circumstances contribute to departures from the rule of law. Not all members of society are represented by the elected legislator. Access to courts depends on financial and legal resources. Power is exercised outside the ambit of formal relations. Such deviations are unavoidable and well known, and much of the political mobilisation and conflicts in society are about correcting them.
Even judges are not always able or willing to live up to the ideals of the rule of law. This is well known also in contemporary western democracies, such as when the administration is given unnecessary wide discretionary powers or when the toll on individuals or minorities in the interest of a dominating party or a majority is excessive. This is part of normal operations of society and becomes a topic both for political controversies and for the courts. Such disputes may concern the question of the scope for the legislator to decide on what is required by the rule of law and the limits to be set by law and by the courts.
Under normal circumstances, conflicts between the legislator and the courts do not threaten the rule of law in any fundamental way. Infringements on the rule of law by the legislator and the administration are corrected by the courts according to the corresponding legal tradition, sometimes with the aid of international courts, and these adjustments by the judiciary are accepted by the administrative and political community.
Different from such normal and inevitable challenges to the relations between politics and law under ordinary circumstances are situations where those in power over legislation use legal means to systematically undermine democracy, liberty, and the rule of law. In Nazi Germany, law was used as a “nationwide government-organised system of cruelty and injustice, in violation of the laws of war and of humanity, and perpetrated in the name of law by the authority of the Ministry of Justice”.7 The old rule of law approach in judicial conduct and in legal doctrine evaporated within the first months after the Nazi takeover of power in 1933. In South Africa, “wicked” legislators launched a “war against law” to further and protect the discriminating apartheid policy.8 The military of Brazil launched a revolution committed to the rule of law with the role of the courts to promote the advancement of a “revolutionary legality”.9 In Chile, the “repression from 1973 to 1978 was a military usurpation of judicial power, with the complicity of the legal establishment”.10
Such situations are vastly different from our everyday arguments over legislative and judicial discretion and division of power. At the same time, they defy our concept of and faith in the rule of law. When rule of law is under attack by the legislator, who is there to protect us if not the courts? As pointed out by the Chilean National Commission on Truth and Reconciliation, legal defences are most needed when the legislator and administration systematically undermine the rule of law.11 If the courts fail and even contribute to the breakdown of the rule of law, one may say with the US Military Tribunal in the case against leading members of the Nazi legal system: “The prostitution of a judicial system for the accomplishment of criminal ends involves an element of evil to the State which is not found in frank atrocities which do not sully judicial robes”.12
To be betrayed by the courts is particularly painful to our sense of justice. In convicting the defendant Rothaug, the Senior Public Prosecutor of the People’s Court, formerly the Chief Justice of the Special Court in Nuremberg, the US Military Tribunal said:
That the number the defendant could wipe out within his competency was smaller than the number involved in the mass persecutions and exterminations by the leaders whom he served, does not mitigate his contribution to the program of those leaders. His acts were more terrible in that those who might have hoped for a last refuge in the institutions of justice found these institutions turned against them and a part of the program of terror and oppression.13
These words are a forceful reminder of the importance of law and justice, not only in our normal liberal and democratic settings but not least in settings where other social institutions fail. The expectation of courts in orders based on the rule of law is that they can keep the other branches of government in check if they violate basic legal principles. This is not to say that judges and members of the legal profession are better or worse than those who occupy other roles in society. But when it comes to justice, the expectations are higher.
Some believe that a legal culture has “deeper” elements of basic concepts and principles that are more resistant to change than the more superficial levels of legislation and specific decisions by the courts.14 Such a view is challenged in cases where previous democratic political systems experience radical shifts in political power and change into authoritarian or totalitarian regimes. The study of such cases and how the courts react to such changes is, therefore, of interest in how we perceive and conceptualise law in a liberal state.
In the following chapters, we will look at the relations between oppressive rulers and the courts in situations where there is a change in regime from the rule of law to authoritarianism. Two main questions underlie the presentation. The first is: to what extent and why do authoritarian rulers employ the law and legal institutions in their oppressive policies? And the second is: how do judges react to being used by authoritarian rulers as instruments of the oppression?
Transition from Rule of Law to Tyranny
Contrary to what one could presume based on the ideology of the rule of law, law and authoritarian rule are not mutually exclusive. In fact, many authoritarian rulers actively employ law and legal institutions in their oppression and go to great pains to maintain a working legal order with independent courts. Why they do so and how they go about achieving it are important questions for the topic of law and oppression.
Oppressive regimes are found in many forms around the world. Of special interest to the role of law as perceived within the western legal tradition are situations where the regime establishes itself or operates in opposition to a functioning legal order based on the rule of law. Several examples of transitions from a state of rule of law to an authoritarian state can be found within the sphere of the western legal tradition. The most renowned is the transition from the liberal Weimar Republic in Germany to the totalitarian state of the Nazi Party.
The general impression that was formed after the defeat of the Nazi system was that the Nazis abolished law and transformed the regime into a system of lawless violence. This was the picture portrayed by Chief Prosecutor Telford Taylor in the Nuremberg Justice Case against the higher officials of the Nazi legal system. As a rule, the judiciary and the officials of the legal system let themselves be used by the Nazis and turned themselves into their willing servants. In the words of Taylor in his opening statement of the trial against the leaders of the Nazi legal system, the defendants:
… leaders of the German judicial system, consciously and deliberately suppressed the law, engaged in an unholy masquerade of brutish tyranny disguised as justice, and converted the German judicial system to an engine of despotism, conquest, pillage, and slaughter.15
This picture of the Nazi regime must, however, be understood in its legal and political context with the need for the allies to establish the legitimacy of their proceedings against the German leaders and officials during the Nazi time.16 The Nazi leaders did not abolish law or the legal institutions of the predecessor Weimar Republic. To paraphrase Ronald Dworkin, lawyers inside and outside of Germany had no difficulty in identifying collectively the institutions and practices that counted as legal practices in Germany in 1933–1945.17 To a large extent, the Nazis ruled by measures “structured by legality”18 and operated through the legal order and the courts.
This seeming paradox has been explained by the theory of Ernst Fraenkel of the “dual state” where the traditional legal institutions wrestled for power with the “prerogative” National Socialist party. According to this influential theory, the Nazi state could be characterised as a “dual state”, where the “normative” and “prerogative” states existed as competitive parts of the German Reich.19 The prerogative state consisted of the field of the political where law was abolished. The prerogative state did not accept any legal restraint or formal bonds and reserved the right to intervene into any field of law and to define its own boundaries. The existence of the dual state in this sense entailed that there existed a double jurisdiction in all matters regarded as political. The police, meaning the SS, could and did execute administrative punishment in addition to or instead of criminal punishments executed by the courts so that people dismissed from the judicial system because of lack of evidence or after having served a sentence could be sent to the concentration camps.20 Insofar as the political authorities did not exercise their power, private life and public life were regulated by the traditionally prevailing or the newly enacted law.21
To a large extent, it is correct that important institutions of oppression, such as the SS, the concentration camps, and the holocaust, operated outside of the jurisdictions of the normal bureaucracy and the courts. This does not mean, however, that the normative state operated along the lines of the rule of law as understood in the traditional sense and that the prerogative state was without legal norms. Fraenkel recognised that the dual state is characterised by “the complete abolition of the inviolability of the law”.22 In this way, the normative state was fundamentally subordinated to the prerogative state. On the other hand also the prerogative state operated under some normativity and was thus not pure arbitrariness. The SS had its own courts where “judges were torn between their ideological mission and their self-understanding as lawyers. The judges who had undertaken formal legal training were not always mere instruments of the Nazi system; they were also driven in part by their traditional conceptions of law and legality”.23
Nazi Germany is not the only case where liberal legal institutions have been transformed and employed as a means of repression. Other examples of oppression through the law are the introduction of apartheid in South Africa after the accession to power of the National Party in 1948 and the military dictatorships in a number of Latin American countries of the 1970s and 1980s.24 In South Africa, the Truth and Reconciliation Committee stated:
The courts and the organised legal profession generally and subconsciously or unwittingly connived in the legislative and executive pursuit of injustice … Perhaps the most common form of subservience can be captured in the maxim qui tacet consentire (silence gives consent). There were, nevertheless, many parts of the profession that actively contributed to the entrenchment and defence of apartheid through the courts.25
The commission further stated that judges had taken part “in the greatest injustices of all, [where] judges … too easily made sense of the illogical and the unjust in legislative language, and who too quickly accepted the word of the police or official witness in preference to that of the accused”.26
The Chilean Truth and Reconciliation Committee said for its part:
The judiciary, which in view of the Constitution, the law, and the nature of its functions, was the government institution called to protect those rights, failed by not acting more forcefully. Moreover, they failed to do so even though from the beginning churches, lawyers, the victims’ relatives, and international human rights agencies were furnishing the courts with information on actions by government officials that violated human rights. The country was surprised to see the courts take such a stance, for it was accustomed to regard the judiciary as a staunch defender of the rule of law.27
These two observations from two very different societies are remarkably similar. Both have as their starting point a reverence of the law and the courts. In the South African case, this is more tacit, based on the respect of the legal tradition and the judges in common law. In the Chilean example, the regard for the judiciary is stated directly. In both cases, the courts let the people down. They generally failed in protecting the rights that the people were guaranteed—in the South African case, under the liberal traditions of common law; in the Chilean case, under the Constitution and under the International Covenant on Civil and Political Rights that was signed by Chile in 1969 and ratified in 1972. Already these examples show that oppression through law is not contained to a civil law or a common law legal culture and that a failure of the courts to uphold the rule of law is not specifically tied to either of these legal traditions.
Oppression in Legal Forms: Is It Really Law?
One might suppose that authoritarian regimes cannot rely on law and legal institutions and that authoritarian repression is, by its very nature, contrary to law. Or one might believe that courts in authoritarian regimes are nothing but pawns for their regimes upholding the interests of the ruling elites. Both views assume that law in any meaningful sense, as general rules applied according to acknowledged techniques by independent courts, is something reserved for democratic or at least liberal regimes. These understandings are false.28 And if they were true, how could we have normative expectations that courts protect individual rights and rule of law in authoritarian settings and criticise judges for not doing it?
Robert Barros, in a study of judicial failure in Argentina and Chile, distinguishes between the following four different forms of state repression and their relationship with law29:
extrajudicial repression in the form of punitive acts inflicted by state agents without any prior authority or adherence to judicial or administrative formalities;
administrative repression, which includes detentions and other coercive measures authorised by the state without any prior review or sentence by the courts;
summary or quasi-judicial repression, which involves some sort of judicial proceeding but which departs from normal rule of law standards;
legal repression, which involves political repression but proceeds via regular judicial mechanisms that afford full protection from arbitrariness.
All these forms of repression involve judges and the courts. In extrajudicial repression without prior authority, such as the 20,000–30,000 disappearances under the military dictatorship of Argentina in the 1970s, courts may be involved by petitions of habeas corpus to force the government to provide evidence of persons abducted by government forces. In Argentina, the courts generally failed to use the formal legal power that they had to challenge the state and demand the release of prisoners where the state could not provide specific grounds for their arrest according to the laws in force.30
Administrative repression is based on formal legal powers that, in least in theory, can be challenged by the courts. This was the form of repression in South Africa under apartheid and in Nazi Germany under the euthanasia programme and the orders to destruct millions of Jews and members of other non-Aryan races. Failure to challenge such repression represents not only a failure to protect but even amounts to legal sanction of atrocities.
Summary or quasi-judicial repression through special courts and tribunals often involves members of the judiciary directly, as in the dictatorship of Chile and in the Peoples’ Court and the special courts of Nazi Germany. To the extent that their jurisdiction is not challenged by the ordinary courts, these courts offer the blessing of the law to such tribunals. When political repression is undertaken through the regular courts, the contribution of the judges is direct. This may contribute to tempering the repression, such as in Brazil as compared to Chile, but it may also contribute to extending it, as in the measures against the Jews developed by the German courts in the 1930s.