The Rule of Law needs champions. It's time for lawyers to stand up.

Speak out against injustice and corruption. Fight for universal legal access. Restore people's lost faith that law and government can serve them. The battle for the Rule of Law starts now.

Later today, in Washington, D.C., Donald Trump, a man convicted on 34 felony counts, will be sworn in as the 47th President of the United States, thanks in large part to a Supreme Court ruling that enabled him to evade many more serious charges. This inauguration will be sponsored by million-dollar donations from powerful technology corporations and by the richest man in the world, who advises the President while actively supporting the overthrow of allied governments and the rise of neo-Nazism in Germany.

This is where we are today. Tomorrow, it will start to get worse, as a President who understandably feels unconstrained by the law will begin pursuing the interests of the oligarchs, white supremacists, and Christian nationalists who feature among his most dedicated supporters. This is not just a problem for the United States. Take it from someone whose country’s economy and sovereignty were threatened and insulted by the new President before he even took office.

I don’t want (and can’t begin) to explore all the reasons why we’re here today. Instead, I want to focus on how we’re going to get through this and how we can get someplace better. And I’m going to use the Rule of Law as the guiding principle in this effort — but maybe not in the way you’d think.

There’s a widespread belief that Donald Trump’s election, enabled by his ability to avoid serious legal consequences for his many illegal and unconstitutional actions, represents the failure of the Rule of Law. I disagree. The Rule of Law failed long before today. And lawyers and the legal system have to take some of the responsibility for that — as well as chief responsibility for restoring the Rule of Law to its rightful place in our society.

A. A Rule of Law Primer

We need to start by understanding exactly what we mean when we talk about “the Rule of Law.” I certainly didn’t — I was constantly throwing around the term in conversation, until I recognized that I was simply using it as shorthand for “the law should apply equally to everyone.” I figured there had to be more to the Rule of Law than that — and after I turned to the Stanford Encyclopedia of Philosophy for this excellent primer, I learned that there is.

They don’t tell us much about the Rule of Law in law school (among many, many other things), so maybe your understanding is as limited and cloudy as mine was. If so, here are its four essential dimensions, excerpted from the Stanford primer:

1. A Check on the Exercise of Government Power
   “People in positions of authority should exercise their power within a constraining framework of well-established public norms…. The government should be accountable through law when there is a suggestion of unauthorized action by those in power. … People value the Rule of Law because it takes some of the edge off the power that is necessarily exercised over them in a political community, [making it] less arbitrary, more predictable, and more impersonal.”
   

2. Consistency and Independence in the Law’s Application
   “The law should be the same for everyone, so that no one is above the law. … When ordinary people call for the Rule of Law, they often have in mind the absence of corruption, the independence of the judiciary, and a presumption in favour of liberty. People [should be] governed by measures laid down in advance in general terms and enforced equally…. This requires the accountability of government officials, the transparency of public business, and the integrity of legal procedures.”

3. A Framework of Predictability and Reliability in Social Conduct
   “Knowing in advance how the law will operate enables one to make plans and work around its requirements. And knowing that one can count on the law’s protecting property and personal rights gives each citizen some certainty about what he can rely on in his dealings with other people. … [The Rule of Law] requires also that citizens should respect and comply with legal norms, even when they disagree with them.”

4. Accessibility to the Law’s Protection and Benefits
   “Legal institutions and their procedures should be available to ordinary people to uphold their rights, settle their disputes, and protect them against abuses of public and private power. There must be a competent profession available to offer … professional advice as to what the law requires. There must be courts and there must be judges whose independence of the other branches of government is guaranteed.”

Now, you’ll probably notice that the most commonly recurring word in those entries is “should.” The Rule of Law is essentially a standard to which a society aspires; in the words of the Stanford primer, it is “one of the ideals of our political morality … [comprising] a number of principles of a formal and procedural character addressing the way in which a community is governed.”

What this means is that the Rule of Law is not automatic. It does not come factory-shipped with democracy, and it does not auto-renew every year on your nation’s independence day. You get the Rule of Law in your society if you work for it. When you don’t, then it atrophies, calcifies, and eventually stops functioning altogether. We are farther down the road towards this outcome than most people would like to think.

B. A Rule of Law Assessment

How well is our society maintaining and advancing the Rule of Law? Your answer will depend on where you live, so I can only speak to the North American context. I’ll be fair and say that #3 (people’s certainty about and willingness to comply with the law) is reasonably sturdy. I’ll be charitable and say that #1 (constraints on the state’s exercise of power) is mostly operative, although you should expect that to start changing in the US come January 21.

But #2 (the law is applied fairly and consistently) is a broken promise. Many people are above the law, and I don’t just mean billionaire presidents. Rich and powerful people routinely avoid prosecution or conviction for their crimes. Large corporations thwart or ignore regulations with dismaying success. Government officials escape accountability, not least through opacity: governments have essentially stopped responding to access-to-information requests. One set of rules for them; another set for us. We see this every day and we know it to be true.

And #4 (the law is available to ordinary people)? Forget it. Low-income Americans lack sufficient legal help for 92% of their civil legal problems; legal aid organizations must turn away half the requests they get. Between 95 and 99 percent of defendants in California consumer debt proceedings are unrepresented by a lawyer. Only 5% of British people with legal problems seek advice from a solicitor. Those stats are from just the three most recent A2J articles I’ve bookmarked so far this year. You could easily find a hundred more, because we’ve been hearing this literally for decades.

There are two particularly important points to be made about these aspects of Rule of Law breakdown:

1. These are the failures that destroy ordinary people’s confidence in the social contract. It’s not just the powerful being above the law that grates against people’s sense of fairness; it’s that most people effectively are beneath the law. They are unable in any practical sense to discover that they have rights, to find someone to help them seek remedies, or to see those rights vindicated and remedies obtained. When people lose faith in the “political morality” of society, they become cynical, desperate, and radicalized. Ask Brian Thompson’s next of kin about that.

2. These are the failures that occurred on the legal profession’s watch. Lawyers enable unjust outcomes for powerful clients every day, and they can tell themselves all night that “everyone deserves representation” and “I’m only doing my job,” but the injustice remains. And as I and many others have said year after year after year, lawyers and judges are the guardians and custodians of the civil legal system, and it collapsed in large part because we were content to allow that system to serve the 5% of people who could pay our bills and nobody else.

It’s critically important to understand this: A lot of the people who voted for Donald Trump in November did so precisely because they had lost faith in the Rule of Law. They had concluded, with considerable justification, that the law and the courts and the government and the economy all served the interests of powerful and privileged people who didn’t give a damn about them. They felt abused, alienated, and angry, and they acted accordingly. And here we are.

So when I hear lawyers and judges lecture other people, especially the disempowered, about respecting the Rule of Law, I am singularly unimpressed. We get to rely on the Rule of Law only to the degree we are willing to work to support it — to work hard, to take risks, to make real sacrifices. How hard have lawyers and judges worked for the Rule of Law? Eighteen months ago, in a post here at Substack, I asked my readers: “What are you prepared to do?”

As a lawyer, I believe in the rule of law, as a floor rather than as a ceiling. I believe in universal equal access to the complex but powerful machinery of justice. I believe in giving everyone a fair shot at the opportunities life brings and getting in the way of anyone who wants to prevent that. Those beliefs are integral to my personal value system. But they also come with the job. This is the great responsibility that balances the great power of this profession. You’re a lawyer? Then you do what’s right.

The Rule of Law is now in serious trouble. As lawyers, we are charged with the duty to defend it, advance it, and make it real. What are we prepared to do?

C. A Rule of Law Directive

I expect to write more often this year about these issues, and less frequently on the legal sector and legal business topics that constitute most of my work to date. (I also have a major writing project coming up, about which more at the end of this month.) But I’m still committed to trying to give you something practical each time out, so I’ll close with three ways in which you and I and all legal professionals can stand up for the Rule of Law and start to rebuild ordinary people’s shattered confidence in it.

1. Fix civil justice. It’s broken. If you don’t litigate you might not realize it, and if you do litigate you might be able to hide from it, but 90% of the population will never get any help from the law and much of the 10% who try must sometimes wish they never did. Organize your local bar to demand more justice system funding. Push legal regulators to authorize non-lawyer assistance without restrictions. Use technology to improve your productivity and pass along the savings to clients. Go into your community and tell people you’re doing all these things so that they can avail themselves of their legal rights. Do it long enough and they might start to believe you. Fair warning: It’s going to take a while.

2. Denounce systemic corruption. When powerful people escape the just application of the law, say something. When powerless people are wrongly deprived of the law’s protection, say something. When judges rule according to their political beliefs rather than the letter and spirit of the law, say something. When government officials engage in self-dealing and hide their complicity with injustice, say something. Say it to your colleagues, friends, and family members. Say it in your law firm newsletters and websites. Say it to the independent media who will pass it to their readers. Leave no one in any doubt about your real commitment to the Rule of Law.

3. Stand for something. Too many people, rightly appalled by the authoritarianism and illiberalism sweeping through governments, position themselves as “the Resistance” or “the Opposition.” I want to counsel against this, because that kind of language surrenders power and legitimacy to those you’re fighting, concedes to them the high ground. Instead of telling the world who you’re against, tell the world what you are for. Identify with detailed accuracy the systemic values, societal principles, and human morals you cherish, and why you cherish them. A shared purpose to believe in will stir and rally people more constructively and lastingly than will a common enemy to fight. The Rule of Law is a worthy shared purpose.

It is not too late to do this. The Rule of Law is not beyond saving; but the powerful people who want to destroy it don’t want you to know that. They want to project such force and ferocity and fanaticism that, like Thanos, they appear inevitable. They want us to convince ourselves that they’re unbeatable, and thereby save themselves the trouble of defending their acts. They want us to consider the Rule of Law already lost. It is not. It can be rescued. We can do this.

On New Year’s Day, the editorial board of the Financial Times of London published an editorial titled, “America’s gathering legal storm,” about the existential challenge Donald Trump poses to the rule of law. The board’s concluding message: “Courage, above all, will be the most precious virtue in the months ahead.” Be courageous; be bold; and above all, be hopeful. This is our battle, and it starts today.