Janan Ganesh: The rule of law is in more trouble than democracy

Liberals fret too much about dictatorship and not enough about chaos

Had Donald Trump “found” those extra ballots in 2020, do we think the 81 million Americans who voted for Joe Biden would have shrugged and moved on? Or that federal civil servants would have carried out the executive orders of the loiterer in the White House? Or that allied nations would have treated him as the rightful US leader, in defiance of Democratic complaints (and, no doubt, warnings about future diplomatic relations)?

Some, perhaps. But even if a substantial minority of each of these groups had protested or withheld their co-operation, it would have been paralysing for the administration.

Because the emergence of Trump and other demagogues has been such a shock to liberals over the past decade, one consoling thought has got rather lost. As a technical feat, at least in the modern West, a coup d’état is unimaginably difficult to execute. Democratic norms are more entrenched now than in the interwar march-on-Rome era, communications technology more diffused, non-partisan bureaucrats more plentiful, foreign scrutiny more exacting.

As much as Boris Johnson squealed and wriggled last summer, he had no mechanism to remain UK premier in defiance of his own MPs, much less the wider kingdom and its institutions. A coup is, we can hope, just too conspicuous and provocative a crime to last.


A subtler, almost invisible menace is the corrosion of the rule of law. Were Trump to be convicted of one or more of the criminal charges against him, a large minority of Americans either won’t believe in his guilt, or won’t mind it. Tens of millions of citizens who hold the judicial system cheaper than one man: that is a more present threat to the republic than a coup. (The US held fuss-free midterm elections last autumn, remember.) Over time, it might tempt the government to not enforce the law, lest it inflame people or martyr the alleged criminal.

Being above the law is a familiar enough concept. Republicans would cite Hunter Biden. But there also seem to be wrongdoers who are under the law: that is, too expensive or small-time to pursue. This week, as though unveiling a space-age crime-fighting innovation from a Christopher Nolan Batman film, Britain’s home secretary asked the police to investigate all reported thefts and to follow all reasonable leads. Police chiefs have described it as a “milestone” that officers would attend the scene of all domestic burglaries.

San Francisco’s record of tacitly tolerated crime is part of its masterclass in urban misgovernment. When protests against pension reform in France this year took on a violent edge, the tone of some domestic and foreign commentary was that Emmanuel Macron shouldn’t be so provocative.

The thread here is complacency about the primal importance of order. And it extends to what, with climate change and the US-China feud, is the subject of the century.

Liberals, no less than nativists, should oppose the irregular arrival of asylum seekers. Their desperation is evident, their vilification foul and their opportunities for legal refuge scarce. Something can be done about at least the last two of these problems. But the popular impression cannot be allowed to set in that criminal laws, let alone ones pertaining to national borders, are so much idle paper. That way lies not just free recruitment work for the far right, but the poisonous notion that obeying the law is a mug’s game.

When the writ of the state fails to run, the problem goes beyond the specific crime being committed to the wider attitude of hopelessness and egoism that it instils. It is the formula for a low-trust society. Their motives differ, but those who would let shoplifting slide (because police budgets are tight) and those who would minimise a “conspiracy to defraud the United States” (because their hero is involved) are part of the same civic rot.

A founding cry of modernity – liberté, égalité, fraternité – made no mention of sécurité or l’ordre, without which nothing else is possible. This intellectual blind spot for the rule of law is excusable. It is a hard concept to define. It isn’t inspiring, consisting as it does of prohibitions and sanctions, backed ultimately by violence.

But the West was law-governed before it was democratic. (The universal franchise is about a century old.) And if the rule of law was earlier to arrive, it is also shaping up to be the first to go. It is hard to imagine a western nation ceasing outright to be democratic any time soon, if we understand this to mean that it would no longer have fair elections whose results are enforced. Chaos, though? Entropy? Those are easier destinies to picture, at times by just looking around. – Copyright The Financial Times Limited 2023