Break room chat & the Rule of Law

Observations & questions on why it is so fragile

Mar 13, 2024

“Don't sweat the small stuff.” It’s a common saying, seductive in its simplicity, dangerous in its application. Where do people think that big stuff comes from? It grows from small seeds, nurtured, unnoticed, by most who absorb and then believe.

It should come as no surprise that in the societies we create and inhabit together, the small stuff is exactly what needs our attention.

We need to be conscious, attentive, making sense of what happens around us daily as we build, manage and lead as animators of the systems that shape our world.

Those seeds planted around the water cooler, in hallways and changing rooms all take root. “Othering” is the result. The small stuff is where misogyny and misandry thrive, where racism is laughed off as a joke and petty politics assign ranks within ranks where some deserve and others do not. Inconsistencies and injustices are seen and opportunities are grabbed to gain advantage at the expense of a colleague, an organization and at a larger scale, society.

a group of people standing around a table

It is the familiar story of a corruption played out locally among those who might be friends. Sometimes, at the very moment that we see opportunity to take advantage, there is insight into what might make a difference, a glimpse of how things could be.

We make a choice.

It can be advantageous, certainly safer, to remain silent, complicit with those whose personal authority dissuades challenge. Groupthink can squeeze out critical reflection. In the balance lies the essence of the Rule of Law flouted by those who craft laws to rule. What we and those we choose to represent us do in moments of clarity reveals the health of our community, small and large. It is a signpost pointing the direction of travel for the future.

The World Justice Project Rule of Law Index®1 ranks jurisdictions worldwide against eight factors. All of these factors reference legal provisions. Missing is any measure of the cultural integration of what the legal structures promise. This, perhaps, is found in the ninth factor where it is noted that,

“Informal justice systems often play a large role in countries and jurisdictions where formal legal institutions are weak, remote, or perceived as ineffective. As such, the WJP has devoted effort to collecting data on informal justice through our surveys. Nonetheless, the complexities of these systems and the difficulties of systematically measuring their fairness and effectiveness make cross-country assessments extraordinarily challenging. For this reason, the informal justice factor is not included in the Index scores and rankings.”

Consigning the significant impact of informal justice systems to a gap in the effectiveness of formal justice systems omits the fundamental basis of any justice: fairness born of human systems.

What is the intersection of these parallel realities?

The gap between the small stuff and the big implications is the space where we live, immersed so completely that we cannot see clearly enough to connect the dots from one to another. It is acted out on social media, in the press. We take the Rule of Law for granted where it is well entrenched, inattentive to our own needs or the effect of our complacency on others. Even as our individual behaviours prove the risk, we trust that somehow the larger systems will protect “the others” in greater danger. Cheering our teams at the World Cup,we become enablers of the very “bread and circuses” that hide uncomfortable truths. Knowing that certain locations put would-be friends in mortal danger, we still choose the games.

When we ignore the signs, we discover that small stuff has grown into big stuff that is too costly, too time consuming, or just plain too late to rectify. The question is not so much why has the Rule of Law become so fragile, as much as how could it have even been anything else?

By and large, we humans don't want to do the work of being attentive, reflective. We want the satisfaction of movement. Influencing each other, we influence the policy makers. Too often, what we get are fixes that fail, necessitating a cycle of retrofits that refine process without improving outcomes. Indeed, one measure of the Rule of Law is equal enforcement of process. And what of the ill-conceived or cleverly designed process that impedes broader principles of justice. Therein lies systemic sexism, racism, classism, etc.

The fragility in the Rule of Law inhabits the gap between aspiration and reality. As an umbrella sheltering those beneath, it is comforting…to the lucky. Inevitably, tension among those squeezing under for the benefits on offer breeds competition. An acid rain drips on those limbs not quite under the umbrella, tearing at the fabric of justice even as they seek its protection. Fragile, indeed, is an idea offered in theory for application across myriad realities of want and need, of strength and weakness, of life and death. Painful truths are both the raison d’être of the Rule of Law and the source of its fragility. Whole industries, profitable non-profits, emerge to vanquish injustice while sustaining it as a means to gain power.

Terminology must be considered. Imprecision in language can be beautiful. It allows for nuance and shades of meaning that give a richness to the stories we tell and the lessons we learn. That lack of precision also allows us to fool ourselves that we have achieved an understanding when we are far from it. Rule of Law and rule by laws seem to mean the same thing. It is in the meaning that we intend that these concepts are significantly, and importantly, different.

Is it feasible to arrive at a mutual understanding when the same words can mean such different things? Paraphrasing U.S. Supreme Court Associate Justice Kagan (2022) “my body, my choice” means something entirely different to a champion of a woman’s right to choose than it does to an anti-vaccine activist. We are vulnerable to those who make use of this ability to interpret and assign meaning for their own purposes. When we do it ourselves, we risk losing the ability to discern reality. Surely this is at play in the conflation of sex, a biological reality, and gender, as socially constructed and infinitely variable across cultures and milieux.

Rule by law, through structured language, can convey an illusory Rule of Law. The commonly understood meaning is common only in so far as the dialogue is contained among those who already agree. The focus of the larger debate revolves around esoteric and philosophical considerations born of, or shaped by and for, different contexts. Coming to agreement requires an attentiveness to meaning, a discernment, that is too often overwhelmed by the noise of outside influences.

Ever shortening attention spans and the technical limitations of online platforms demand whittling down complex ideas into a limited number of characters that cannot capture the scope of the original thought. The exercise of conveying an idea in snippets necessitates a narrowing of focus. The process is not one of opening to ideas by gathering knowledge to distill findings into a meaningful synopsis. Instead, it is a process of taking an idea, cutting away awkward complexities to fit some form of the idea into a time-limited window of opportunity. When published, the result of either process reaches the observer with equal weight implying a fair representation. But this is not dialogue. It is a both-siderism, a false balance that fogs the mind. The opportunity for attention and reflection is lost. What remains is the destructive illusion of knowledge shared.

A cliché that comes to mind is the old joke, “the operation was a success…but the patient died.” When I have used this in teaching, it is to illustrate that procedural competence does not guarantee a desirable outcome. To many, the anecdote has a familiarity such that the import is too easily dismissed. The essential meaning is lost. Familiarity of form can make us inattentive to the substance of an idea.

Form, then, can reduce a principle to a headline, a value to a label, a truth to a lie in the hands of bad players. When it goes viral, a not-quite truth becomes a social contagion infecting thousands too overwhelmed to notice that they have become bad players themselves. We trade integrity for expedience.

Trusting a familiar or authoritative form in place of the time, energy and knowledge building necessary to make sense, that is, to discern independently, is now a norm. It is enabled by a societal shift away from personal responsibility to a reliance on procedure, corporate or governmental, and compliance with form as the measure of probity. Whether trusting in work carried out by “certified” practitioners or in communication through social media, form has replaced engagement, process has replaced outcome, guise has quashed veracity.

What is the relationship between these thoughts and the Rule of Law?

In my view, the Rule of Law has to do with shaping an environment to deliver fair, trustworthy outcomes. Rule by laws is more a matter of process and procedure. It is entirely possible to fulfill a process under law completely, each step carried out excellently by (often) certified practitioners, with results that deliver horrible injustices. History is full of such examples. So is daily life. Increasingly, transnational corporations shape this space, legal persons without personhood. Where European lawmakers seem to be awakening, Canadian politicians slumber and the US sustains a status quo with global impact.

Much procedure is performance to delivers reassurance as a matter of form. Sometimes, that is subterfuge: we are presented with, even engage in, a process to deliver a sought for outcome despite there being evidence to the contrary. Some of us knowingly move us backward. Some of us are reticent to point it out.

This takes us back to the fragility of our aspiration for the Rule of Law. The goal depends upon buy-in from disparate others whose cultural values and norms may be at odds with the many inherent complexities and with each other. We may view the enactment of certain norms as wrong but then dismiss that view as an unfair judgement, itself contrary to the Rule of Law ethos. Inability to bridge difference contributes to the fragility of our aim. We lose sight.

“A culture of aspiration is a ‘navigational capacity’ in that it provides a map of norms that leads to future success.”2 Transition to new norms is a matter of cultural change. How does that change occur? Are seeds of change sewn by majority vote at the board room table or parliament, or are they sewn and nurtured among individuals at the water cooler? Does a culture change because the Rule of Law is imposed? No. The Rule of Law is successful when it results from cultural change.

What is the impetus for change? Does it arise through imposition of standards and sanctions pushing toward a result that will be jettisoned in times of stress? Is it born of a self-interested, performative cover for a populace willing to accept the guise, consciously and not, while being essentially unchanged? Can it be a natural evolution that invites sustainable, incremental growth strengthened by a rational clarity?

How do people move toward successful adoption of Rule of Law? Surely this is a critical question. Why embrace some overarching concept when, by and large, one can navigate around local rule by law? How is it advanced? On what basis do we teach the underpinning values of Rule of Law? Do we draw upon religious tenets or do we ground promulgation on evidence confirming the Rule of Law as the better way? Both offer adherents a sense of trust, each with inherent contradictions. Does the basis of that trust affect our success in adopting the Rule of Law?

Can success come from a more passive modelling of the way forward? This approach can manifest and demonstrate desired outcomes to encourage a rethinking of historical governance frameworks that are out of sync with the Rule of Law. Fragility is dangerously exacerbated when inconsistencies and errors are tolerated or left unchallenged.

Does a proactive “carrot and stick” approach offer benefits for structural reform while withholding benefits for failure to adapt? Imposed change invites a “fake it ‘till you make it” approach that is vulnerable to stressors: social, economic and political. Fragility is inherent because in times of stress we revert to fundamentals. In this scenario, the fundamental cultural underpinnings have not changed. The “carrot and stick” approach may be favoured today as an invitation to those who aspire to the benefits but do not yet grasp the responsibilities that are central to the Rule of Law.

The invitation is important, but what of those who do not share the aspiration? A false implementation can mask the slide into authoritarianism or worse, enabled by acquiring benefits from pretending to adopt the Rule of Law. Such fakery is a closed model and, as such, less fragile than those striving to evolve. The damage done affects both the involved society and a broader, global understanding of the merits of the Rule of Law.

No less illustrative is how Rule of Law regimes actually apply rule by law. Treatment of minorities within dominant cultures is notable within those exemplars, including my own country, Canada. A cultural, often structural, segregation of indigenous and sexual minority peoples exists in countries that either exclude such minorities from protection or, where affording protections in laws, mistake a structural form for a more substantial and less fragile integration required for fairness under the Rule of Law. The experience of these and other minorities can teach us something about how cultures can shift toward embodying a Rule of Law ethos. Can we extend this to recognize that hierarchical divisions of class challenge the very notion of equity and fairness for all? Can our grasp on reality remain firm if we force fit diversity into a unity as seen in the adoption of the 2SLGBTQQIA+ label? 3

Abuses of the Rule of Law within supposedly observing countries factor into the fragility of the concept. In the USA, for example, machinations that deliver unequal incarceration of minorities and legal constructions such as that legitimizing Guantanamo Bay are indicative of flaws in adherence to the concept. The attempt to evade EU strictures for funding government programs through a redefinition of what constitutes such a program (e.g. Hungary in 2022) is one example whereby a law is proposed as a vehicle to circumvent the overarching agreement. In Canada, passage of the Alberta Sovereignty Within A United Canada Act4 was an attempt to use law to circumvent the Rule of Law. The rhetoric of those behind this Act erodes an already limited grasp of how the Rule of Law grounds democracy among their followers and beyond. Fragility is certain where an observer must surely ask: if this can be so, how can this country purport to practice the Rule of Law? We dodged a bullet, perhaps, with last minute changes incorporated into passage of the Act.5

In our attachment to national jurisdiction, we may ignore the hegemony of transnational economics. Are we one people with myriad aspects or myriad peoples at continual risk of conflict? How do we make sense of this? These topics fit with notions of collaboration vs. competition as a world view.

When is tampering with a culture acceptable? If outright forbidden in the imagined future 2024 of Star Trek, it seems all but de rigeur in the reality of today. Forcing change without an internal impetus is bound to fail. How does the international community progress when the Rule of Law is a foreign concept to so many? Elevating a social aspiration to the status of a legally binding construct may enable lasting change that moves us forward. It may also set us back by forcing an unsustainable, artificial change and a battle of cultures. For some, it may invite a subterfuge that enables the very opposite of what is intended. Ultimately, should law follow societal change or does it lead, even drive that change? If there is a reality in the balance, surely that is a distinct lag in the governance model. Under what circumstances should that balance tip toward or against forcing change? If forced change is bound to fail, what are the indicators of internal impetus? What forces drive those indicators?

Fundamental is that question of collaboration or competition: we’re in it together, or, I win, you lose. The former view enables a social contract through which the Rule of Law can be achieved. We agree to behave justly toward each other and everyone is entitled to fairness from their counterparts and the authorities which are similarly bound. We can trust the environment that we inhabit. The latter opens the door to claiming of the Rule of Law as a means for advantage of one over another, a construct that is essentially opposed to the Rule of Law in that it denies justice through a power imbalance. There is an inherent instability in that degrees of advantage and disadvantage are variable, so we cannot even trust that injustice will be consistent, predictable.

If shifting mindsets from competition to cooperation is vital, it also threatens many societies in the world. Fear of losing the form of long held beliefs and traditions breeds resistance to a necessary change at a far deeper level. Success requires an evolution in cultural values while accommodating treasured traditions. Can the familiar form of traditions can be aligned to newly interpreted values? That is a shared challenge, one with varied success across the arc of history.

There is a fragility inherent in anything that requires cooperation among people. Maybe that is a good thing. If we can hold that fragility with attention, maybe it can keep us from a complacency that allows darkness to slip in under the guise of the Rule of Law. Maybe it can, at last, equip us for the long journey to a better world.

At the moment, I am not confident.

Anisotropic Road

Discussion about this post