Above and Beyond the Law

Goals-oriented ideologies have no patience with due process

The posting of the Twelve Tables

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“No one is above the law!” Also sprach the spirit of the age, postmodern progressivism. And like most decrees from that quarter, it’s a serviceable lie.

Some three centuries after the establishment of the ancient Roman Republic, the common people, the plebs, began to agitate for a revolutionary measure: that the law be reduced to writing. Hitherto, Roman law had been an unwritten body of custom, subject to interpretation by the religious authorities. The priesthood, which was dominated by the aristocratic patrician class, thus laid down the law on a case-by-case basis. But as the class struggle between patricians and plebeians intensified, the former felt compelled to yield to the latter’s demands. The result was the Twelve Tables (c. 451 BC), which may fairly be honored as the cornerstone of Western jurisprudence.

A notable feature of this early Roman legal project was its secular practicality. The Twelve Tables were not held to have been handed down by the gods, nor by some semi-mythological lawgiver. They were, rather, a distillation of customary rules and obligations, many of which derived from the patron/client relationship, the central organizing principle of Roman society. This first codification of Roman law was not democratic. To our way of thinking nowadays, it was not particularly just. But the Twelve Tables informed a Roman where he stood in relation to his fellows and the state. They also set forth rules for court proceedings. These were genuine innovations, on which posterity was to build.

Because few good deeds go unpunished, the patricians received no thanks for this concession to the plebs. On the contrary, the common people were appalled to discover just how lopsidedly the law tilted against them. Despite that, the Twelve Tables became the cornerstone of Rome’s greatest and most enduring achievement: the codification of law and the development of a system of jurisprudence.

The codification of law, its interpretation, and its impartial application are the essential building blocks of a modern democratic society. True, authoritarian and totalitarian states have constitutions and codes of law. The 1936 Constitution of the Soviet Union, for instance, was a model of democratic socialism, guaranteeing a wide range of civil and economic rights, but it was mere window dressing. The supreme law of the land was pronounced by the Party, which is to say Stalin, whose power was both absolute and arbitrary.

But the rule of law can be undermined in other ways as well, some fairly blatant, others extremely subtle. Weaponize is, to be sure, a much-abused term. Progressives complain constantly that when an issue like crime or border security turns against them, it has been weaponized by the other side: the application of a scary word to politics as usual.

There can be no doubt, however, that with some frequency the law is weaponized; that is, abused for purposes unconnected with the administration of justice. This was true in ancient Rome, where the annually elected magistrates—consuls, praetors, etc.—had good reason to fear prosecution for alleged abuse of power and other offenses once their year in office ended. Such prosecutions were a regular feature of Roman politics, especially during the Republic’s final, turbulent century of existence. Another historical example is the use of politically motivated charges of treason, such as the one that resulted in the execution of Sir Thomas More. The modern analogue is lawfare, for instance the campaign being waged against Donald Trump by his political enemies.

And it’s not just Trump. Today in the United States, the practice of lawfare is on the rise. Oil companies and gun manufacturers are targeted by activists with lawsuits that seek to further political agendas. Pro-life pregnancy crisis centers are harassed by progressive bureaucrats and prosecutors. The power of the administrative state is leveraged to inconvenience, silence or punish people who question various orthodoxies or raise awkward questions.

Such abuses are worrisome for two reasons. In one way or another, they are abuses of government power, often running contrary to the basic law of the land as spelled out in the Constitution of the United States. For instance, the federal government’s collusion with social media companies to suppress speech that ran contrary to the official line on the COVID-19 pandemic was a bare-faced violation of the First Amendment. That kind of abuse is bad enough. But it leads to an even greater evil: the erosion of public faith in the rule of law itself.

No one, of course, is foolish enough to believe that the administration of justice can be perfectly fair and impartial. The flaws and limitations of human nature are proof against that. Police, prosecutors, defense attorneys, judges, can and do make mistakes, or act unethically, or are simply corrupt. Innocent people are sometimes convicted, and sometimes the guilty go free. But what’s happening now is different: It’s the deliberate, organized mobilization of the law to achieve political objectives—paradoxically coupled with a similarly deliberate, organized campaign to discredit the institutions responsible for the administration of justice.

There’s more than a tinge of doublethink in the behavior of progressives who valorize the dubious legal shenanigans of progressive Alvin Bragg while denouncing the rulings of the conservative Supreme Court. In this there’s not a speck of intellectual honesty: It’s clear that both valorization and denunciation are driven by ideology and nothing else. The Left’s objectives are to get Trump, and to transform the Supreme Court into a reliable enabler of progressive policies.

And the rule of law has nothing to do with the matter. Progressives applauded when the Justice Department went after those who had a hand in the January 6, 2021, invasion of the US Capitol. No one was above the law then! But then came October 7, 2023, and its aftermath: a vicious, frequently violent and unlawful outburst of antisemitic hate in America. But the responsible parties represented the “anti-Zionist” faction of the Left. Neither the Biden Justice Department nor progressive prosecutors and city governments so much as lifted a finger against those criminals, for example when a violent mob of leftie antisemites in Los Angeles prevented Jews from entering a synagogue while the LAPD stood by and did nothing.

Nor is the Right, observing all this, likely to take the high road. In the age of Trump/Biden what goes around comes around, and if the Prince of the Golden Escalator wins in November, it’s likely that the law will be weaponized against his political enemies. Rachel Maddow probably wouldn’t be sent to a concentration camp, but Merrick Garland would be well advised to watch his six. And he’d be in no position to complain, would he? After all, Biden’s Attorney General is a senior commander in the lawfare campaign against Trump.

But it’s worse than that. As noted above, the rule of law in its broadest sense is the foundation stone of liberal democracy. Since the 2008 financial panic, the public’s faith in institutions has been on the wane. The multiple institutional failures during the pandemic generalized and accelerated this loss of faith, which most definitely encompasses the legal system. In Trump/Biden’s America, the law is mocked each time a shoplifter gets away with his swag, each time a bigot bashes a Jew, each time an illegal immigrant commits rape or murder, with every carjacking and every act of vandalism. Lawlessness breeds contempt for the law. And that’s the path we’re on.