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The Growing American Rule-of-Law Deficit

Statue of Lady Justice on the Well of Justice in Bern, Switzerland; sculptor: Hans Gieng, 1543.

(Analysis) Throughout much of US history, rule of law has been enshrined as a beacon to many parts of the world. Whereas other countries suffered from preferential treatment of elites, often aristocratic, the US rightly criticized such practices. Continued criticism by the US Government of other countries for failing to practice rule of law now risks easily substantiated counter-charges of hypocrisy.

The so-called war on terror is the root of much deviance from the rule-of-law principle in the US today. Whether one looks at highly prevalent and intrusive monitoring of communications, continued imprisonment without trial of foreign “combatants”, extra-judicial killing of US citizens, or a US Administration that at a minimum did not perform due diligence about its justification(s) for war, the US can no longer credibly claim to be a nation ruled by law.

There are other areas besides national security illustrating a growing gap between the rule-of-law ideal and current American practice. These include statements that suspected serious crimes at large financial institutions go unprosecuted because these institutions are “too big to prosecute”, racial disparity in arrests, prosecution and incarceration, and widespread corruption in the political process.

Corruption is like a cancer on a body politic, and until there is sufficient popular will to remove it, it will grow. Whether or not there is a point beyond which corruption is so pervasive that it can no longer be removed, is an open question, but growing divergence from rule of law shows that corruption is now very widespread. It is arguably sapping our authority and strength.

Rule of law is often agreed to be a necessary pillar for economic growth and development. Investment is believed to be more forthcoming when investors can reasonably expect that their investments will not be subject to the whims of an unpredictable justice system. A growing perception of corruption in both business and wider society could be one reason why investment is now insufficient to produce a real economic recovery – investors might simply have rationally decided that there is to much legal uncertainty. Preferential treatment of already successful businesses by politicians and courts could additionally be serving as a barrier to entry of new firms, holding back economic growth and productivity.

Bottom line: we are not a nation ruled by law; instead, we can be better described as a country where those with exorbitant privilege and wealth can claim special access to all branches and levels of our government in order to receive preferential treatment.

Justice in the US today is far from blind, and it is becoming more erratic and capricious. This is one area that local activism should strongly address, since most cases are brought before a local court in the US. Rule of law should be a rallying cry for those seeking to reform the American justice system.



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