Law can hold power to promises it never meant to keep

Courts provide only curb on the rich and powerful

In earlier articles in this series we saw how the end of the cold war produced a great rise in the number of “democratic” states while at the same time the move to the primacy of the market has served to undermine the liberty promised by such a label. Twenty-five years on, our world is now largely one of “neo-democracy”, in which the shape of universal freedom remains – we seem to enjoy democratic government – but power increasingly lies in markets, in globalised organisations and in the confident power of capital.

The result is great for the rich; terrible for those who are not. The consequence is a kind of societal anomie. Disillusion and cynicism fill the space in our lives marked out for citizenry, fed by the constant clash between what we think and are told we are and what we appear to have become.

Yet it is in exactly this space between facts and theory (between what we are and what we think we were, and can be again) that opportunity is to be found. The memory of democracy’s egalitarian promise survives. So too do those other bequests of modernism, “the rule of law” and “respect for human rights”. The last two of these in particular have grown lives of their own which neo-democracy cannot always be sure to control and which it is not (yet?) strong enough to destroy.

Guaranteeing contracts

The rule of law was initially a creature of the markets, little more than a way of guaranteeing contracts. But over time it has grown to be something more than this: a control on power (state and private) overseen by an aristocracy of judges paid enough to be immune to profit and sufficiently independent not to care what power thinks of the decisions its members make.

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In times of radical progress this judicial independence can be barrier to social improvement – but in these neo-democratic days it is an important defence against double standards. For all its faults the courtroom remains a protected space where discourse gives truth a chance to shine. Its presiding judges have the capability of holding power to promises it never meant to keep, and sometimes makes the powerful do so.

Human rights

And then there is the continued traction of human rights. Even more pervasive than democracy, the legal protection of human rights is everywhere: a set of entitlements that represent a universalism whose simple integrity is in itself deeply subversive of the neo-democratic move to camouflaged inequality. Binding on political branches, and overseen by the same judges that have tried to protect the rule of law, human rights stand as a serious obstacle to the world of “haves” and “have-nots” that is envisaged by neo-democracy.

It is the contemporary way of articulating care about others – the empathy for the underdog – that might once have been called religious.

It is important not to exaggerate. Neither the judges nor human rights are a cavalry riding over the hill to rescue the democratic convoy from its enemies. Judges can – and sometimes are – co-opted by elite interests, becoming tools and propagators of neo-democracy, rather than challengers of it. Governments respond to the risks of litigation by trying to ensure that only the rich can access the courts.

Human rights instruments contain get-out clauses which governments demand judges deploy, thereby drawing the judicial branch into a justification of whatever brutal or unequal treatment it is that is under scrutiny: this is how inequality can rise fast exactly where equality is guaranteed, and how poverty can thrive in a culture supposedly devoted to its eradication.And the courts themselves invariably feel they have to tread carefully least they overreach themselves by speaking the truth their mandate seems (but only seems) to demand. In authoritarian political cultures judges have been frogmarched from office.

Populist political leaders

In subtler places they are condemned by populist political leaders as “undemocratic” and “out-of-touch” – for the crime of taking seriously what the society says it wants (human rights) but which in a neo-democratic world is impossible truly to have.

All this explains the turn to law that we have seen in all democratic cultures recently. The shift entails a move to the courts as centres of opposition to initiatives intended to benefit the rich, the “haves” of power and other crucial societal resources, but which are at odds with what society – through its laws; through its constitution; through its rights guarantees – declares itself to be committed to achieve.

But neither law nor human rights can on their own revive democratic culture.

Next week, in the final article in this series, we focus on democratic revival.