Abstract
This commentary on the rule of law is a work of fiction drawing on parallels between current socio-legal-political circumstances, conflicts and contradictions, and those depicted in Mark Twain’s
Keywords
As I travel through the heartlands of the United States I am puzzled by many things. Perhaps I am once again channeling Huck Finn, or perhaps the truth is that the more things change, as one would expect over the course of almost two centuries, the more they stay the same. . .well, sort of, . . . at least at the human level. Especially striking is the contrast between what newscasters choose to report and talk show hosts debate, and what they ignore. As we travel around, my friend Jim, like Huck’s Jim, keeps telling me stories he says nobody else mentions or seems to think about much at all. I can see his point. It is a bit odd, for sure, rather like it was in the 1840s and 1850s. Different themes, much the same phenomenon. Lots and lots of magical thinking with curiously selective attention by the newspapers and well-known politicians to human experience on the ground.
For example, a while ago, much was made in the news of the decision by President Biden to pardon his son, Hunter Biden. Pundits on opposing sides of the issue expounded at great length on the implications of the decision for the rule of law and the future of democracy in the United States. Leading newspapers devoted extensive space to the issue. Somber tones were used. Some asserted that the decision indicates the death of the rule of law in the United States. Others pointed to similar decisions in the past as proof that political expedience has long been a well-trodden pathway for the Presidency and that the rule of law in the United States already resembles Swiss cheese. I am not totally familiar with how that turn of phrase is used. Perhaps the commentators are suggesting the decision smells. Or perhaps they are alluding to the holes that characterize both Swiss cheese and the many arguments offered on all sides of the issue.
In any event, the implication by many critics is that the fact that the President decided to lavish a benefit on his son, while many other people’s sons receive no such benefit, demonstrates a corrupt use of public authority. Others point out that the prosecution of the cases against Hunter Biden was itself tainted by political partisanship from the outset; that but for the fact that Hunter’s father was Joe Biden, few if any resources would have been devoted to the prosecution of these cases in the first place. This is in striking contrast with the handling of the case of Leonard Peltier, convicted for the deaths of two FBI agents during a shoot-out in 1975 on the Pine Ridge Indian Reservation and incarcerated for years, despite admissions in the interim by the prosecution and trial judge that the evidence currently believed to be reliable was insufficient to prove that Peltier’s actions caused the deaths. As a result, Peltier was described as a political prisoner by many, while widespread calls by international organizations and countless individuals for clemency for him went unheeded. Even now he remains under house arrest, a condition imposed under the terms of his release from prison only at the very end of Biden’s term in office.
From what I hear, in the United States police and prosecutors have wide discretion when deciding whether to lay charges and to prosecute. Clemency is discretionary as well. Human nature being what it is, it is likely that discretion is sometimes exercised in a less than impartial manner. Curiously, that phenomenon as it plays out in general does not appear to attract the attention of the pundits or to be generally seen by members of the public as especially problematic. At least from what I’ve been hearing. Lack of impartiality and some abuse from time to time in the use of discretion even seems to be expected as if it were simply business as usual. But on occasion, as in the Hunter Biden case, an exercise of the Presidential discretionary power to pardon is selected by members of the press and media as the lead story of the day. For some unknown reason, Peltier was not on the President’s list for many years. Curious business for sure, both the selection of who to pardon and which cases to critique. It smells a bit like political jockeying all round for sure. I’m not so sure about the role of cheese in all this. And as for the rule of law . . . well, perhaps you should ask Leonard Peltier.
Meanwhile, my friend Jim is extremely distressed by the news he hears about his cousins in Gaza. One entire branch of his family was killed when their tent in Gaza was bombed. The attacks against Palestinians there have been going on for months and months. Less and less food is available and all his cousins who survived the bombing are now starving. In addition, in the past two months, three more of their children have died from infections and diarrhea caused by bad water and they’ve had to relocate yet again for the nineteenth time in the last fourteen months. Jim wants to know why the U.S. government keeps sending munitions to the Israeli government when any fool can see that the Israeli army uses U.S. bombs to kill ordinary Palestinians, people who are noncombatants, civilians, and supposedly protected by international law. The Israeli aggression in Gaza is carried out with munitions mostly supplied by the United States in blatant violation of the Leahy Act as well as international law. Yet Congress keeps sending even more military funding to Israel than it has in recent years.
Jim cries a lot at night when he doesn’t think anyone can hear him. He says that supplying bombs to the Israeli government makes the U.S. government complicit in war crimes in violation of U.S. law and international law, including the Convention on the Prevention and Punishment of the Crime of Genocide. He doesn’t believe American citizens can genuinely be concerned about ensuring that their government complies with the rule of law or someone or some organization or official body, perhaps Congress, would do
I try to spare Jim’s feelings, so I mostly bite my tongue about all this, but it does seem possible to me that the explanation is a crude one, exceedingly simple in the end—shortsighted perceptions of self-interest and a good strong dose of characteristic American myopia that ensures most Americans sincerely believe their government adheres to the rule of law. The media commentators go on and on about jobs and the U.S. domestic economy and encourage everyone to pay attention to domestic politics and the U.S. stock market while they wait to see what effects Trump’s proposed tariffs will have on their pocketbooks. In the middle of an unofficial war economy, the stock market has been doing pretty well in recent years. The direct and indirect economic activity that results from the production, supply, and sale of war materials benefits millions of people in the United States by creating jobs, generating employment income, and supporting consumer spending. This is a simple fact. Massive amounts of tax dollars are consumed in the process, much in the form of foreign aid to other national governments to fund the purchase of hardware and munitions from U.S. suppliers. As if in a form of medieval alchemy, funds are transformed from public tax dollars to domestic manufacturing activity and private investment dividends in a flash. Marvelous, magical!! Other options exist that could easily absorb the human and material resources required to fund the production and service of military material—for example, public education, health care, food, housing, and social service programming. All those sectors are underfunded. But the political imagination and will to focus on those priorities seem to have gone absent without leave. Meanwhile, the same patterns that have driven U.S. decision-making for seven to eight decades continue with a deadly inertia of their own. To be sure, there are daily confrontations about who is and who isn’t playing by the legal rules and how “shocking and outrageous” it is when someone violates the “rule of law.” But the overall game remains the same, much as it has been for a very long time. And meanwhile, I hear Jim crying in the night, on and on, night after night.
So, what should we conclude about the much-vaunted rule of law, real and imaged, observed and ignored, from all this? Perhaps comparison with the history of the United States in the 1850s with its own peculiar forms of magical thinking can shed some light on this. In the United States in that era, geography and local municipal law determined whether a human being was a person or a chattel. You can imagine someone dancing along the Mason-Dixon line with one foot on each side and spinning back and forth between human and thing, subject and object, like a top or pinwheel. Perspective and place dictated whose vision of the rule of law in action governed, while everyone righteously claimed the rule of law as their very own. Many words were spilled on all sides of every issue related to states’ rights and slavery, while puffs of magical thinking purported to cast a patina of order and good governance over the entire debacle. One is reminded of the kaleidoscopes that reveal a shifting field of view and design with every slight twist of the tube. It’s enough to make you dizzy.
As I vaguely recall, the Fugitive Slave Act of 1850, a statute enacted by the U.S. Congress, purported to affirm that it was legitimate to kidnap anyone who was alleged to be a slave even though they were physically present in a state that had abolished slavery. Everyone was required to assist in the apprehension and return of slaves to the custody of their owners. Failure to comply with the Act was a federal offence with stiff penalties. This pitted the concepts of property and personhood at loggerheads with one another, but allowed the former to trump the latter, largely contingent on geography. Again, magical alchemy in action. Then, in 1857, the Dred Scott decision was released by the U.S. Supreme Court holding that because Dred Scott was black, he was not a citizen within the meaning of the U.S. Constitution and had no constitutional rights, and therefore couldn’t and wouldn’t have benefited from the Constitution had the federal legislation that might have otherwise protected him not itself been held to be unconstitutional! 1 The effects of all that for black folks in either the North or the South of the United States were not good. Jim says I am understating the case. That is quite possible. The decision was certainly a setback for the U.S. Congress and the efficacy of its law-making powers and, some would argue, was a leading cause of the U.S. Civil War, but because it affirmed property rights, not personhood, it definitely delighted U.S. slave owners. Huck once said that Aunt Polly tried to explain it all to him when the decision was rendered, but he really couldn’t follow the logic of it all, so she gave him some treatises to ponder over and said he could always go and ask the Judge to explain the whole situation to him. I confess I share Huck’s predicament. Those controversies all do seem a bit murky and difficult to make sense of, even so many years on. And when it comes to Jim’s questions about present-day law and politics in the United States and its impact on his family even though they are so very far away from the United States, well, I’m not so sure that a judge, even a really smart one, could provide a satisfactory explanation of the current situation to me or Jim. To us, it just looks like the U.S. government has a perversely self-serving and fantastic understanding of the rule of law.
But this would not be the first time I didn’t see the sense in what looked crystal clear to others. Sometimes I come round to it after all, but not always. I wouldn’t say I’m stubborn, just that I do tend to want to get to the bottom of the matter, whatever it may be, and I’m less quick than many to assume that the general drift of opinion is correct whether we are talking about what the weather is apt to be tomorrow or, as here, what the standing and role of the rule of law in public affairs is now or is likely to be next week or next month, and why.
As to the Dred Scott decision and trying to make sense of it, even Abraham Lincoln seemed to think that decision was inherently contradictory in that, in his opinion, the majority judgment declared “the perfect freedom of the people to be just no freedom at all.” 2 No wonder Huck was confused by it, and Jim, his Jim, was terrified. And who wouldn’t be. The decision increased the risk that anyone who looked a little bit black, or even dusky, or was simply alleged to be enslaved, might be kidnapped—even if they were not and never had been a slave—taken to a state where slavery was legal, and forced to live out their life as if they were someone’s chattel, a “thing.” And good luck finding a judge to say otherwise, especially when the law provided that alleged slaves were not permitted to testify and give evidence as witnesses on their own behalf!
Whatever we make of the rule of law, history does seem to show, again and again, that rule by law is generally a quite useful tool if you are making the rules and your goal is to intimidate and control people and crush dissent. Not so much if you are the one who is being silenced. The latter, the crushée, wants to know what, if anything, the rule of law might have to offer to counter the effects of the imposition of rule by law. At times, that may seem to be precious little. With the assumptions relied on by the majority of the U.S. Supreme Court in the Dred Scott case in place, for example, the Underground Railroad would be deemed to be what is described as a terrorist organization in 2025. In the 1850s, existing legislation, combined with the Fugitive Slave Act, provided some punitive tools not unlike those available for use against twenty-first century “terrorist” organizations.
But I digress. What practical solace, if any, does the rule of law offer my Jim and his family in 2025? And how and why? Or why not? How do we reconcile idealistic sounding rhetoric about human rights with human devastation on the ground and the rule of law with the law of rules or rule by law? When U.S. officials purport to invoke the rule of law, they often point to specific legal rules they believe serve U.S. interests—as they see them—and insinuate that it is by adhering to those rules that the United States honors the rule of law. That interpretation equates the rule of law with rule by U.S. law that is subject to an interpretation of the U.S. Constitution—which some argue is (sometimes) frozen in time circa 1787. Then, in the next breath, they assert that any country that fails to follow the lead of the United States and adhere to laws and policies consistent with U.S. laws and policies is acting contrary to the rule of law. And for a state to act contrary to the rule of law as defined by the U.S. government (such as it is from time to time) is to invite being labeled a pariah and made vulnerable to adverse or even harsh treatment by the United States on the international stage. Individuals who reject U.S. policies fare no better and may even be called “terrorists”—though some are considered “freedom fighters” aka revolutionaries—perhaps channeling Tom Paine, Thomas Jefferson, Benjamin Franklin, Thomas Barrow, Nelson Mandela, Fidel Castro, Rosa Luxemburg, Toussaint L’Ouverture, Alice Paul, Mahatma Gandhi, or Patrice Lumumba?? [The term “pirate” seems to have fallen out of favor since the 1700s. In a world where global power is less overtly focused on control of the seas, the more versatile term, “terrorist,” now serves a similar function.]
My Jim, very much like Huck’s Jim, can usually see through the bafflegab and set out a clear view of any practical situation. For example, as you may recall, when Huck’s Jim was locked away in the farmer’s cabin, Tom Sawyer—who had joined up with them at that late stage—came up with one fantastical plan after another to secure Jim’s escape. Tom even proposed that Jim’s rescue be left to Huck’s children and Tom’s children and spun out over eighty years to ensure that it was a truly glorious adventure and that everyone who had a hand in it would be appropriately celebrated!! [Mark Twain was probably having a joke there about some people’s desire for self-aggrandizement and glory even if it causes suffering to other people . . . like Manifest Destiny perhaps? As in—“Tom Sawyer and Uncle Sam know what is best for you; you don’t, not now and not ever!”] But, in any event—Huck’s Jim was not at all impressed by Tom’s fantasies and said, flat out, unreservedly, that Tom’s plan was not a good plan at all. Huck’s Jim was not given to equivocation. Unlike Tom Sawyer or Uncle Sam, Jim had both feet (literally) deep in the muddy reality of the moment and fully recognized the jeopardy in which he, unlike Tom and Huck, was enmeshed.
Similarly, my Jim seeks a course of concrete action that will guarantee not only his family’s survival in the long run but a prompt end to the violence and deprivation to which his family is subjected every day in Gaza. He is not favorably impressed in the least by the sweeping pronouncements of President Biden and other U.S. officials about the unending commitment of the United States to secure humanitarian relief for the Palestinians, consistent with the requirements of international law. Jim says it was obvious, for example, that President Biden and Antony Blinken both behaved much like Tom Sawyer. Pure idiocy. Indeed, how could my Jim possibly be impressed with their bravado, given that the United States simultaneously provides the Israelis with the bombs and military equipment the Israelis use to block humanitarian aid trucks from entering Gaza and kill many, many humanitarian workers, journalists, and ordinary Palestinians?
So, let’s try to tease out the present status in the United States of the rule of law as opposed to the rule by law using as a foil any insights we can glean from Abraham Lincoln, Huck’s Jim, and their encounters with the Fugitive Slave Act, the Missouri Compromise, the Dred Scott case, and the concepts of persons and property in the United States of the 1850s. As present-day Americans attempt to conceptualize the rule of law in the international context, they may be confused by the convolutions in their domestic legal and political history, including the crucial and recurrent confrontations over slavery and state sovereignty from revolutionary times forward to the present. That confusion may be exacerbated by the comparative geographic isolation in which the American experiment has taken place and the long-standing tendency of Americans to conflate national and global issues and priorities, as if the former
In the 1850s, Huck had his own issues with self-evident truths; he was quite aware that in helping Jim escape capture, he was violating the law. As a consequence, Huck struggled with a conflict between his “conscience” on the one hand and his “heart” on the other. Huck ultimately followed his heart, his feelings for Jim, over his conscience, even though he believed the price he would pay for his illegal conduct was “sin and damnation.” In following his heart, not his conscience, he saw himself as choosing to be a “bad” person. Twain thus depicted Huck as not only believing that helping fugitive slaves was illegal, contrary to law and therefore contrary to the dictates of “conscience,” but also that acts which deprive slave owners of their property are “sinful” and “depraved” in the eyes of God, and, as such, earn the villain a place in hell. Here, we see two levels of condemnation, one for violating U.S. law and the other for violating property rights, where property rights, even when the property in question is a human being, are believed to be protected by an ultimate sanction of divine condemnation to hell. Twain thus depicts America in the 1850s as a place where mainstream law and religion both prioritize property over personhood to the extent that even someone like Huck, who chose to live on the margins of the community, might believe that protecting the property rights of slave owners was “right,” the only action that anyone could take in good conscience. Socialized in such an environment, Taney and six of the eight other justices on the U.S. Supreme Court might well have considered it self-evident, and thus beyond question, that by curtailing the property rights of slave owners, the Missouri Compromise violated the protections afforded property rights by 5th Amendment to U.S. Constitution and was therefore null and void. 4
That approach, however, used at both the federal and state levels in the United States, led to the bloody confrontation over states’ rights and slavery in the U.S. Civil War, 1861–1864, and still resonates in present-day controversies about state, federal, and constitutional sovereignty. Religious convictions and humanitarian commitments continue to conflict with one another and with domestic and international law. My Jim says that given the history of these issues he believes U.S. foreign policy tactics mirror the unresolved contradictions of U.S. domestic law and policy and must be seen as evidence of a recently emerging nation-state “acting out” on the global stage as a direct result of its failure to achieve a principled and stable legal and political resolution of the contradictions integral to its own creation and its domestic legal and political framework. The assumption that respect for state sovereignty dictates that state laws, even those which allegedly violate human rights, must not only be tolerated but at times even given extraterritorial effect and permitted to trump the effects of the conflicting laws of other states that respect and protect human rights, resonates with the twisted logic of Dred Scott. That assumption is also not inconsistent with the view that actions by the U.S. government that have the
The yawning gap between what state and federal U.S. governments allegedly
“Meaning well” and “doing good.” Those are one and the same, equivalent—correct?? Or is this just more magical thinking?? We mean well, our intentions are good, therefore our actions are beyond reproach?? But my Jim begs to differ and says that type of speechifying is just more nonsense, fluffy talk directed at those who are neither hard of hearing nor blind but may allow themselves to be misled when they see and hear the same misleading assertions again and again.
To illustrate his point, Jim points to comments by Antony Blinken, the U.S. Secretary of State, who, in reviewing the failure of humanitarian relief and the inadequacy of protection for civilians in Gaza, appeared to be mildly critical of Israel’s conduct in its initial offensive many months ago in southern Gaza, stating: “As we stand here almost a week into this campaign into the south . . . it remains imperative that Israel put a premium on civilian protection. And there does remain a gap between, . . . the intent to protect civilians and the actual results that we’re seeing on the ground.”
6
By acknowledging the existence of a gap between the “intent to protect civilians” and the actual results of Israeli’s offensive, Secretary Blinken demonstrated that he was fully aware of the distinction between intention and outcomes or effects. But Jim believes Blinken uses the distinction strategically. Thus, when speaking more recently about whether and when the United States might recognize the post-Assad government in Syria, Blinken focused on actions and their effects, rather than expressions of intent and purpose, to insinuate that there were reasons to delay recognition. He stated: It’s imperative that all actors involved protect civilians; respect human rights, especially of vulnerable minorities; preserve the state’s institutions, its services to help meet the needs of the Syrian; and to build towards inclusive governance. Statements by rebel leaders to these ends are very welcome, but of course, the real measure of their commitment is not just what they say but what they do.
7
Thus, we see Blinken’s focus shift from intent and purpose to actions and effects, depending on the context, how the issue at hand is framed, and whether the remarks are supportive or neutral and noncommittal. No explanation is offered for the shift. Jim tells me that he sees this same pattern of shifting focus and rhetoric across the entire range of cases involving the use and abuse of power. Prosecutors routinely point to deliberate actions and foreseeable effects as evidence of the accused’s culpable state of mind. By contrast, advocates for the defense, invariably extol the laudable or legitimate intent or purpose of the accused and explain that any negative effects, criminal or otherwise, were likely due to an accident or some other cause outside the control of the accused and, in any event, were most definitely not intended by the accused. If that line of argument appears unpersuasive, the advocate often argues that the act was nonetheless
Jim is exasperated with all these rhetorical swoops and flourishes. He tells me that the twenty-first century must move beyond the mens rea analysis that E.P. Thompson suggests eighteenth century English judges gradually created to provide defenses for individuals charged with one or more of the myriad of capital offenses then in effect. 8 The stakes have flipped and capital punishment is on its way out, even in the United States. The priority must now be on establishing accountability for acts and omissions, including those by accused who purport to exercise institutional power. Jim says intent requirements have become a distracting and irrelevant red herring, an impediment to achieving justice consistent with the rule of law, an impediment for which he no longer has any patience.
Jim is not alone in these views. His cousins in Gaza would agree. Many in the Global South might also agree. Intent and purpose are yesterday’s obsessions; extended debate about what purpose or objective is or was intended, or is not or was not intended, wastes precious human resources and is the vestige of a retributive, acquisitive, possessive social order. Justice under an international rule of law that has the capacity to secure substantive protection for fundamental human rights will require ongoing, clear-eyed, and prompt apprehension and documentation of the practical effects of actions on human beings and collaborative imaginative ameliorative responses. Let us assume, for argument’s sake—despite my Jim’s strenuous objections on the ground that any such assumption is wholly untenable—that both Justice Taney and Secretary Blinken “meant well,” had “good intentions,” and were trying to “do good.” Jim and I agree that they both failed. In both cases, the alchemy of magical thinking based on the “purposes” they purportedly “intended” to achieve fell far short . . . as it is wont to do.
The experiences of Huck’s Jim with slavery, combined with the extermination of much of my Jim’s family by bombing, starvation, disease, and despair, unequivocally point to the conclusion that the pathway to hell on earth is indeed paved with “good” intentions. The facts speak for themselves, long after the rhetoric has faded away.
Twenty-five years into the twenty-first century we’d all be well advised to join my Jim and Huck’s Jim in grasping the grim practical significance of that warning and move forward toward a rule of law that actually protects fundamental human rights, substantive rights, not only procedural rights, and bases decisions on evidence of the substantive effects of acts and omissions on human beings and the natural environment that sustains them. But to be just, Jim insists, decisions must also be timely, not like those about Gaza where thousands are being killed while hoping for a reprieve, for some sign that rescue will come and the violence will stop.
Well . . . I must say, . . . from what we’ve seen and heard in our travels in recent months, the affairs of the United States as a nation do seem to be in a state of flux, to put it mildly. Some describe it as chaos. Others, not so much. Meanwhile, my Jim is mostly quiet these days. Some days he seems to find it difficult to talk, even to me. Today, he muttered something about it all being just business as usual, in the United States and abroad alike. More poverty, disease, and limited access to education and the courts. More bombs, starvation, and death. Some differences in the rhetoric, a few new speakers, all claiming the moral high ground, but in the end, much the same. . .no meaningful change for the better. Every few days, he loses more family members in Gaza to infection, injury, malnutrition, bullets, and bombs. The United States continues to supply Israel with armaments and with support in the U.N. Security Council, while international opinion condemns Israel for its actions in Gaza and increasingly sees Israel as a pariah state whose future is uncertain. And now, the Israelis are bombing Iran! And, yet again, that aggression is said to be undertaken for the purpose of self-defense.
My Jim, who has good reason to be cynical, observes that leaders from the European Union (E.U.) and many Western democracies only became openly strident in their criticism of Israel and threatened sanctions and disassociation from joint ventures with Israel after their own political, military, and economic ties with the United States started to fray in dustups with Trump as a result of his verbal assaults and adversarial policy initiatives. Perceptions of national self-interest, politics, not commitments to protect human rights and human life, drive the shifts in state rhetoric. At least that is my Jim’s opinion.
Domestically, from what we hear in our travels in the United States—and it is still very early days under the current administration in Washington—opinions seem largely to reflect the allegiances and perceptions of reality that were in place prior to the November 2024 elections. Denial, misinformation, self-contradiction, and exaggeration can be found on all sides, especially in the talk shows and news bubbles. There is apprehension at the grassroots, however, as no one knows exactly what lies ahead, . . . especially given the uncertainties arising from unusual events like the massive military parade planned on June 14 for DC and the No King demonstrations scheduled for more than 2,000 locations across the country that same day.
Lots more Swiss cheese reasoning flying about, with inconsistencies and holes big enough to drive tanks and fire trucks through. The theatrics and histrionics remind me of Twain’s tales of the medicine shows the traveling con duo used to deceive townspeople and relieve them of their spare change. When will the game turn, and the scammers get themselves run out of town on a rail?
Overt contempt for the law, let alone the principles and values of the rule of law, appears to have exploded beyond most people’s boldest imagination and now affects every conceivable corner of debate about government administration from immigration to energy and regulation to prosecution and enforcement. Questions about jurisdiction and the meaning of legal terms are ignored or debated and purportedly resolved by executive fiat. The president continues to issue an unending stream of executive orders. The legality of many of those orders is dubious at best; many are under challenge in the courts. Court dockets are full to bursting, and lawyers are busy. And meanwhile, thousands of lives are being turned upside down across the country and abroad through the loss of jobs, the cancellation of contracts, programs and grants, by detentions and deportations, and the economic uncertainties arising from Trump’s vacillating tariffs and the tax and spending legislation currently under consideration by the U.S. House and Senate.
My Jim says he finds these developments all quite ironic. A nation, purportedly born in a revolutionary act of self-determination by the people to free themselves from the political and economic rule of an imperial power headed by a king, was promptly recolonized by economic interests whose current nominal leader and figure head now purports to exercise power by fiat as if he were king . . . save at the moments when he claims to be no such thing. Jim is puzzled by the failure of the electorate, the people and the politicians, alike, to realize that they need representatives in the state legislatures and Congress who will impose steeply progressive individual and business income and estate taxes based on ability to pay and then use the resulting tax revenue to reduce government deficits and support the programs people need. Jim says a minimum wage at a level sufficient to support a family and provide high-quality childcare is essential, an obvious prerequisite for prosperity and human thriving. But oligarchy, grinding poverty, and domestic colonial exploitation are hardly new phenomena in the United States. Their socio-economic and political causes predate President Trump by decades and arguably predate even the 1700s. The current administration, like those that preceded it, is merely symptomatic of what is possible within the prevailing institutional arrangements and socioeconomic assumptions; it is those which Jim says need to be reexamined if the people of the United States are to be able to craft effective substantive remedies for socioeconomic conditions of inequality and exploitation.
Abroad, the bookies are probably already taking bets on what the state of the U.S. economy and health status of the U.S. population is likely to be by 2028—its inflation rate, federal debt, interest rate on federal bonds, the number of personal and corporate bankruptcies, and the unemployment, disability, morbidity and mortality rates. Meanwhile, internationally, the United States is now seen as an unpredictable and unreliable ally. President Trump has reneged on too many agreements for the United States to remain a trusted partner. International political and economic alliances are being rapidly reconfigured in the interests of ensuring stability and certainty, quite independent of what the U.S. government might or might not decide to do from time to time. No nation or regional group wants to allow itself to be left vulnerable to extortion and exploitation, invasion, or abandonment.
But how do the developments since January 2025 affect our understanding of the rule of law? Or the rule by law Jim and I talked about six months ago? And how do either differ from a rules-based order? President Biden often spoke of the “rules-based international order (RBIO),” appearing to view it as the most noteworthy and valuable diplomatic achievement of the post-Cold War era. He championed an international political order based on rules established by multilateral agreements as articulated by those with de facto power to enforce them. The U.S. government was the leading source of and advocate for an RBIO over the past thirty-five years. 9 But an RBIO lacks many salient features of international law—universality, legality, clarity, and an internationally recognized process for its articulation, adoption, and enforcement by established bodies, such as the International Criminal Court and the International Court of Justice. Rules that are vague and political, rather than legal, lend themselves to highly “flexible”/“creative” applications and were and continue to be used to support U.S. policies and actions in blatant violation of international law, including acts and omissions in violation of the provisions of the UN Charter. A case in point is seen in the U.S. government’s deployment of RBIO rhetoric for many decades as it participated in agreements that ignored and systematically violated the rights under international law of the state of Palestine and the human rights of Palestinians. 10 And yet, as my Jim quickly points out, proponents of the RBIO assert that the rule of law is an element of RBIO, together with free trade/markets, group or collective security, multilateralism, protections for individual rights, and democratic/ representative forms of governance. As always, like Huck’s Jim, my Jim is quick to see rhetorical bromides for what they are in action.
As a result of all the contradictory actions and verbiage thrown about in recent decades, it is fair to say that it is understandable that at present there is genuine confusion about what the “rule of law” is. One ongoing effort to translate the abstract concept into concrete terms for practical application and assessment is the work of the World Justice Project (WJP), an independent nonprofit research organization established in 2006, which produces an annual Rule of Law Index using data obtained from interviews and responses to questionnaires in countries around the globe about local perceptions of performance based on multiple factors. 11 The WJP defines the rule of law as “a durable system of laws, institutions, norms, and community commitment that delivers four universal principles: accountability, just law, open government, and accessible and impartial justice.” 12 The project’s mission is to promote the rule of law globally as a tool to enhance the quality of human lives and well-being—their safety, security, fairness, equality, health, education, prosperity, and peace. The WJP states: “. . .the rule of law affects us all. It is the foundation for communities of justice, opportunity, and peace—underpinning development, accountable government, and respect for fundamental rights. Research shows that rule of law correlates to higher economic growth, greater peace, more education, and improved health outcomes.” 13 Here we see a sustained attempt to assess the effects of institutional practices and policies on the lived experience and well-being of human beings. This is a research project on a global scale; the sample sizes are small but the project merits close critical examination.
In any event, based on everything we have seen in our travels, Jim and I agree that a principled version of the rule of law is often largely aspirational at present and is only followed part of the time in either the United States or abroad. Social order, such as it is at any given point in time, far more often appears to be the result of an unruly combination of rule by law and the influence of social conventions on behavior. But, as my Jim told me months ago, this is nothing new. That is simply how governance operates in practice—maintain a modicum of control through rule by law and invite the public to believe that government operates in accordance with the rule of law, save when it is “necessary” for the government not to do so, or the costs are too high, or one or another allegedly exceptional factor intervenes. And opinion on what that point is, or should be, waxes and wanes depending on what is at stake and who is speaking.
When President Trump speaks, that point, as he recently told us, is whatever he thinks it is. When a reporter recently asked the President about his criteria for deployment of active duty Marines to U.S. cities, the following exchange was recorded: Trump: “Well, we’re going to have troops everywhere.” Reporter: “What’s the bar for sending in the Marines?” Trump: “The bar is what I think it is.”
14
Hearing that, Huck’s Jim would have felt right at home, in his worst nineteenth century nightmare, at risk of being beaten, thrown into chains, and shipped down river—magically transformed from “person” to “chattel” in a flash simply on the basis of what (not whom) someone thought he self-evidently was. Self-evident! Beyond question! No further criteria required!
If we don’t accept and cannot abide such a highly discretionary “rule by (my) law”—“my facts,” “my reality,” and “my truth”—approach to governance, the question is: do we need to redesign the working institutional legitecture or simply use it more of the time and more consistently? If it is to be reconfigured, in what respects and to what extent? What is to be the practical working definition of the “rule of law” in the United States going forward? Will it, at long last, strive to implement the universal principles and values of human rights and international law in practice? Substantively? Meaningfully? At home and abroad?
And, since we’re asking for answers, my Jim and Huck’s Jim—who both have a keen and persistent interest in human rights—want to know why the 28th Amendment to the U.S. Constitution, the Equal Rights Amendment, still has not been published. 15 Really?!! Arguably a formality, but . . . likely not a good sign, folks.
Footnotes
1.
“Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident.”
2.
Abraham Lincoln, “House Divided Speech,” Springfield, Illinois, June 16, 1858.
3.
Example, the recent experience of the American Friends Service Committee with censorship by the 
. Perhaps freedom to speak is respected by the NYT, but not freedom to speak in a manner that aligns with what you believe to be true?
4.
Even though the Court arguably did not have jurisdiction to decide the constitutional issue. But this is not the place for extended analysis of the Dred Scott decision. Others, including the dissenting justices McLean and Curtis, have already done that at length.
5.
Rashid Khalidi,
7.
Antony Blinken, interview reported by Reuters, December 8, 2024. Since the Assad regime was overthrown, Israel is reported to have bombed hundreds of sites in Syria and invaded demilitarized areas of the Golan Heights. In this interview Secretary Blinken does not mention those activities though they obviously place civilians at risk, damage infrastructure, pollute the environment, and violate international agreements. My Jim says Blinken seems to have blinked.
8.
E. P. Thompson,
9.
Is a rules-based order a good fit for the Trump administration? Hmm . . . unlikely. The Trump administration . . . or at least President Trump . . . often seems to change his position before anyone can understand what the position is, let alone assess the merits of entering into an agreement. This does appear to be a rather odd approach to “transactional” relationships. Perhaps it is a practice in search of a rationale or theory.
10.
11.
See https://worldjusticeproject.org/rule-of-law-index/ and related resources, including details of the methodology used, at . The United States is ranked 26th. One hundred forty-two countries participated in the 2024 Index; Israel did not. WJP reports that in 2024 the rule of law declined for the seventh year in a row in most of the jurisdictions studied.
12.
These universal principles are in turn defined. (1) Accountability: The government as well as private actors are accountable under the law. (2) Just Law: The law is clear, publicized, and stable and is applied evenly. It ensures human rights as well as property, contract, and procedural rights. (3) Open Government: The processes by which the law is adopted, administered, adjudicated, and enforced are accessible, fair, and efficient. (4) Accessible and Impartial Justice: Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve. Available at .
13.
Similarly, the project website states: “Where the rule of law is weak, medicines fail to reach health facilities, criminal violence goes unchecked, laws are applied unequally across societies, and foreign investments are held back. Effective rule of law helps reduce corruption, improve public health, enhance education, alleviate poverty, and protect people from injustices and dangers large and small.” Available at https://worldjusticeproject.org/about-us/overview/mission. Information on recent initiatives to develop a granular analysis for use at the local level in Europe and in business are available at https://worldjusticeproject.org/news/eurovoices-rule-of-law-eu-methodology and .
14.
C-Span, Acyn (@Acyn), June 8, 2025. Available at pic.twitter.com/XUBX9hEZJU, accessed June 15, 2025.