Democracy and Rule of Law: A Delicate Equilibrium

Genesis tells the story of a family, from Adam and Eve to Noah, from Noah to Shem, and so on down the line to Abraham and Sarah, Isaac and Rebecca, and Jacob, Leah and Rachel.

Exodus tells the story of a nation, the Israelites, enslaved and then freed, culminating in the encounter with God at Mount Sinai.

In one sense, becoming a nation is simply a matter of being fruitful and multiplying, as an extended family becomes a clan, and a clan expands into a tribe, and one tribe expands and divides into twelve, united as one nation.

In another sense, numbers alone do not a nation make. Not when the children of Israel were subjugated by the Egyptians. When you’re a slave, you’re a part of your master’s household, not your own. To truly become a nation, you first have to be emancipated. It was only when Pharaoh capitulated and granted the Israelites the autonomy to leave, and they crossed the Red Sea and escaped, that they became a true nation.

But freedom does not hold a people together. The population Moses led into the desert easily could have split apart, each tribe going its separate way, perhaps fragmenting even further. Sooner or later, such a large group would become unwieldy to manage, prone to disagreements, and under increasing pressure to compete over scarce resources.

In this sense, the children of Israel don’t really become a nation until Moses comes down from Mount Sinai with the Torah. The Pentateuch’s 613 laws and commandments are what bind the Israelites together as one. In this sense, they form the constitution of the Israelite nation. When we speak of a person’s physical constitution, we are referring to that person’s body, its structure and functioning. In the same way, a written constitution provides a population with structure and establishes the way it will function. A constitution is a body of ideas that constitutes the nation.

In the same way, the Constitution of the United States is what constitutes the USA as a nation, which is why the oath of enlistment for military service begins “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States,” as do the oaths of office for elected officials, the president’s being to “preserve, protect, and defend the Constitution of the United States.”

Americans typically think of our government as a democracy, but it is not simply government by the people, or government of the people’s elected representatives. It is democratic government within the constraints of a republic, within the structure and limitations imposed by the Constitution. Democracy is majority rule, while a constitutional republic represents rule of law. And rule of law is synonymous with human rights, what the founders of our republic referred to as “unalienable rights.”

If you had to choose between democracy without rule of law and rule of law without democracy, which would you choose? It is the choice between Athens and Jerusalem. Athenian democracy, in the absence of checks and balances established by a constitution, easily descended into mob rule, and did not last. Rule of law in the form of rabbinic Judaism sustained us through centuries of diaspora, oppression, and persecution.

Admittedly, when democracy and rule of law are combined, and rule of law functions as a check on pure democracy, it may seem anti-democratic, even elitist. After all, anyone can vote, but understanding our legal system requires a certain amount of study and education. Indeed, codified law is the invention of literate elites, of the minority who mastered reading and writing in the ancient world. It originated in the first societies to adopt writing systems: the Sumerians, Egyptians, and Babylonians. And what is arguably the first full system of codified law, the Torah, is introduced after the invention of the first form of alphabetic writing. The Semitic alphabet was developed circa 1850 BCE in the Sinai region, the site associated with the exodus and Moses the Lawgiver.

Democracy, however, also was a literate invention, developed after the Greeks adopted the alphabet from the Phoenicians circa 800 BCE. Athenian democracy, introduced in 508 BCE, emphasized the need for education in rhetoric, which emphasized the ability to speak well in a public forum, and to persuade others. Where the Greeks emphasized persuasion, for Jewish law, the emphasis was on study and interpretation, leading to talmudic scholarship. This may be understood as a kind of elitism, but in the form of meritocracy, as opposed to mere popular opinion.

Shakespeare’s famous line, “The first thing we do, let’s kill all the lawyers,” expressed a popular disdain for the profession, one that has become stronger than ever over the last half century. And there is a valid criticism that we have become much too litigious as a society. But it should not distract us from the essential significance of rule of law.

Yes, attorneys represent an elite group, as do all professions, but the fundamental significance of codified law is that it is accessible to all. It’s not hidden away somewhere dark and distant. It’s not a secret. It is published, meaning that it is made public. Every one of us can read and study the law for ourselves. We can represent ourselves in court, but more importantly, we can check up on how the law is being interpreted and administered. We can challenge our judges, our legislators, and the officials in the executive branch of government. Codified law is, in this way, inherently democratic and egalitarian.

Without codified law, we have no basis for evaluating, let alone challenging, the decision of authorities. All we have is what James I of England termed “the divine right of kings,” which is the right to do whatever those authorities please.

Without codified law, we have no basis for arguing for equal rights, for legal equality, also known as equality before, under, or in the eyes of the law. Written rules don’t play favorites, which is not to say that laws are always fair and never discriminatory, just that once the rules are established, we expect them to apply to everyone playing the game. This includes anyone in authority, placing limitations on their ability to exercise power over the rest of us.

Without codified law, we have rule by king, emperor, or pharaoh, rule by priest or theocrat, rule by dictator or party, rule by senate or parliament, rule by majority or mob. In other words, rule by an individual, family, or group, rule by a minority and subjugation of the majority.

By nature, we are a hierarchical species, just like wolves and apes. The alpha male rules, and that’s all there is to it. Rule of law imposes a structure that restrains those impulses, and governs leader and follower alike. When law rules, it follows that no one is above the law. This is especially true when the law is handed down by a higher power, but even in its absence there is authority in the written word that transcends personal power.

Rule of law means that we are ruled by reason and intelligence, not power and ambition. Codified law means that we follow a code that has been worked out in advance, that we are not governed by personal passions and whims. Equality before the law means that we conduct ourselves according to moral and ethical principles, not according to someone’s arbitrary exercise of authority.

This is what the Torah has taught us, beyond all of the specifics that Hillel in his great wisdom called commentary. This is what we taught to others, through our Torah. This is fundamental to Judaism.

And now, here in the United States, we have a president who not only flouts the rule of law, but is actively working to subvert it. His attorney general is aiding and abetting this effort, and almost all of his Republican comrades in the House and Senate are his accomplices, willing or not. The populism that they have come to represent is trying to establish democracy without rule of law, without the very thing that binds us together, that constitutes our republic.

We now have to choose between democracy with or without the rule of law. Which one would you choose? Which one will you choose?