What Can We Reasonably Hope For?

A Millennium Symposium

Copyright (c) 1998 First Things 99 (Januray 2000): 18-19.

[Symposium Contents]

Robert H. Bork

Isaiah Berlin observed that "not one among the most perceptive social thinkers of the nineteenth century had ever predicted . . . the great ideological storms [of the twentieth century] that have altered the lives of virtually all mankind." With that in mind, the one thing we may confidently predict for the next millennium is that our forecasts will have little relation to reality. Nevertheless . . .

Major changes in a civilization may be foreshadowed when words that once had power and weight become empty formulas rather than expressing vital, living principles. During the 1998 campaign on the Michigan referendum on legalizing assisted suicide, for example, opponents discovered, to their considerable surprise, that the phrase "the sanctity of human life" had absolutely no resonance with the public. What did give the opposition traction, and led to the defeat of the measure, was the example of the Netherlands, where assisted suicide gradually became euthanasia and then unconsented killing. People could imagine themselves as victims. The "sanctity of human life" had shriveled to the sanctity of one’s own life.

So it is today with the phrase "rule of law." Born in Europe, exported to America, and fundamental to Western Civilization, the concept no longer commands much more than verbal allegiance. It would be possible to multiply examples, but the fact became obtrusive during the impeachment of Bill Clinton. It was indisputable that Clinton had committed perjury and obstructed justice, but his supporters and most of the public decried the proceedings as "just about sex," which is apparently no longer morally serious. Perjury and obstruction of justice themselves were only as serious as what was being covered up. This means that law as such no longer has independent moral force or weight of its own.

That truth is worth reflection. Aside from the fact that justice is now defined on an ad hoc basis, there is the ominous reality that the rule of law is central to the practice of democracy. Rule by the people means that voters choose legislators according to the policies the candidates offer, that elected representatives will enact rules, and that judges and juries will apply those rules impartially and as intended. Unless that is true, public debate, elections, and legislative deliberation have little significance. Disconnected from governance, politics will become entertainment, and those who vote are likely to cast their ballots on the basis of celebrity. (Which leads to the somber thought that the Reform Party may be the model for the future.) Perhaps a highly complex and dynamic society, one that continually introduces more complicated issues than our institutions can cope with satisfactorily, cannot adhere to older notions of the rule of law and self-government.

But it is a matter for concern: when law is personalized and politicized, its force and impact are controlled by public relations and private moralities, not by majority preference. We have been on this course for some time, as shown by judicial rule without recourse to law, jury nullification of law, and, perhaps especially, bureaucracies that lay down most of the law that governs us with, at best, minimal accountability to either the people or their elected representatives and without concern for consistency. These developments could not occur without the inertia and weariness of the public, even their willingness to abandon the long-term safeguards and benefits of process for the short-term gratification of desires.

There surely has always been an element of this in our use of law, but that element seems to be expanding rapidly. If it is, the "rule of law" and "democracy" in the next millennium will be radically different from the idealized versions of them that most of us carry in our heads. Ruleless "law" will be a political weapon and control of the judiciary will therefore be a political prize. "Democracy" will consist of the chaotic struggle to influence decision makers who are not responsive to elections.

This is not a forecast of doom but merely of a continuing transformation of law and government, a journey to a new polity and society whose details we cannot even begin to imagine today. It may be tolerable, as many societies have been without the rule of law or democratic self-government. The future being uncertain, however, it will be the part of wisdom to resist the changes we see.

Robert H. Bork is the John M. Olin Scholar in Legal Studies at the American Enterprise Institute and author of The Tempting of America: The Political Seduction of the Law and Slouching Towards Gomorrah: Modern Liberalism and American Decline.