This is the year of elections: voters in Bangladesh, Russia, and India have already cast their ballots; voters in South Africa and Mexico do so at the time of writing; and voters in many other countries, including Uruguay and Namibia, and the UK and the US, will have the opportunity later in the year. Not all of these elections will be free and fair, and not all will lead to good outcomes for the citizens: elections are imperfect procedures and voters sometimes have little real choice. At other times, the voters come to regret the choices they made. Nonetheless this year, more people have the chance to vote than in any previous year in human history, and that is something for us to celebrate. (Not so, of course, if you are the loyal scion of an hereditary ruling dynasty, but for the rest of us, modest celebration seems to be in order.)
Dissatisfaction with political outcomes is not new. In the Western tradition, the earliest historians and political philosophers spent considerable time reflecting on why their city states were not better governed, and whether the rulers or the ruled were mostly to blame. When Solon, the famous lawmaker, was asked whether he had given the Athenians the best laws, he replied, the best they would accept. Balancing the optimal with the consensual lies at the heart of politics, and in the long-run, we should expect democracies to achieve this balance more regularly and more sustainably than other forms of government, owing to their improved capacity to learn and innovate. But this does not guarantee that they will be more successful always and everywhere. Democracies are also to be preferred because they tend to exhibit higher respect for law and less deference to rulers.
In Book III Chapter 15 of The Politics, Aristotle asks whether it is better to be governed by the Best Laws or by the Best Ruler. The Greeks understood that laws are usually written at a high level of generality and, therefore, not all political decisions might be covered by them. The Best Ruler might be preferable, then, so long as this Ruler follows the laws most of the time and only shows initiative when a specific case arises that is not covered by existing law. Alternatively, we know that all individuals, however gifted, are subject to passion, over-confidence, and errors of judgement, which suggests that reliance on dispassionate general laws might avoid the risks of unconstrained human error. I am reliably informed by someone who knows more about this than me, that a similar debate took place in China at roughly the same time, when Confucius’s emphasis on the rule of wise men was challenged by the legalist philosophy of Han Fei (and others) who instead placed emphasis on the importance of laws and good governmental process. This global confluence of political debate should come as little surprise. The problems of politics are universal, and the emergence of similarly structured solutions in different cultural traditions, whatever their local flavours, reminds us of our shared human capacity for problem resolution.
Aristotle’s question was debated by leading theologians and political philosophers for hundreds of years. Giles of Rome and James of Viterbo discussed the question in the thirteenth century, at a time when there were almost no democratic or republican governments left in Europe and monarchy had triumphed as the dominant political form. For understandable reasons, at that time most commentators argued that, notwithstanding the many advantages of living under good law, living under the rule of a Prince was clearly superior. The Prince presumably took pleasure in this endorsement, while most scholars, who were aware of Aristotle’s acute criticisms of monarchy, knew how to read between the lines.
In 1516, Erasmus of Rotterdam wrote a tract titled, The Education of a Christian Prince, dedicated to Charles, who later became the Habsburg ruler of the Low Countries, much of German, Austria, Hungary, some of Italy, Spain, and most of South America. Erasmus’s book was intended as a lengthy job application, since he wanted Charles to employ him, and to grant him an annuity for directing his reading, and translating and summarising classical texts for him. Early in the book he quotes Seneca: The future prince’s educator must be a man who knows how to reprimand without giving way to abuse, and how to praise without giving way to flattery; let the prince at once respect him for his disciplined life and like him for his agreeable manner. (Note to the Reader: with slight redrafting these words would work well in the personal statement for your next managerial job application.)
Despite a few passages of mild sycophancy, Erasmus was not afraid to include in his text some forceful criticisms of heredity monarchy, slavery, ostentatious wealth, and militarism. He also managed to resolve Aristotle’s dilemma by demonstrating that, in propitious circumstances, both choices produce the same outcome. The happiest situation arises, he says, when the prince is obeyed by all and himself obeys the laws, provided that these conform to the ideals of justice and honour and have no other purpose than to advance the interests of all. The good, wise, and upright prince is simply a sort of embodiment of the law. Unfortunately for Erasmus, he was not hired to be Charles’s tutor, and he later sent a signed copy of his book to Henry VIII, seeking employment as an advisor to the English king, but negotiations foundered on his level of compensation. It is easy to imagine that Charles and Henry would have benefitted from Erasmus’s humanist wisdom, since both made a series of egregious errors in religious, economic, and military policy. A wise ruler would have sought an advisor such as Erasmus, even though they might have little need of his advice; while the actual rulers of his day, who badly needed his advice, were never likely to listen to him.
When I first took an interest in politics, in the UK there was a broad division between the main parties about the merits of the law. Conservatives traditionally defended the rule of law, as the essential means by which to maintain peaceful communities, and to preserve ownership rights for property, which were seen as the basis of economic security. I remember attending a talk by Rhodes Boyson, a Conservative MP, in 1981, in which he argued that the first and most important role of government was to promote respect for the law, and to keep order on the streets. By contrast, many in the Labour movement at that time were sceptical about the courts, the police, and the law, which in the past had been used against the nascent trades union movement and the women’s suffrage movement, and which were soon to be used to help crush a strike by the miners. Law was seen not as a neutral mechanism for regulating social life, but as an ideological tool used by the ruling class to maintain their privilege.
How times have changed. Nowadays in the UK, it is routine to hear leading Conservative politicians attack lawyers, the police, and the judges for using the law to frustrate the will of the people, which they seem to believe has been vested directly in them as elected representatives of the majority party. The doctrine of the sovereignty of parliament is used to justify the antinomianism of the government. While for Boris Johnson, lawlessness was a lifestyle choice – an embrace of chaos for its own sake – for his successors, Lizz Truss and Rishi Sunak, it has been a petulant response to their own failures. When some policy does not achieve the outcome that was promised to voters – and this is not a rare occurrence – some part of the legal, regulatory, or justice system is held to be responsible. In addition to the casual law-breaking that has become common among Conservative politicians, many in the party display contempt for due process, and for the checks and balances that are the hallmarks of a stable polity. It is hard to imagine that, were Margaret Thatcher still alive, she would spend her time “liking” pictures on social media that showed angry drivers causing criminal damage to Transport for London’s road enforcement cameras; but that is how her epigones pass their days.
By contrast, the Labour party has of late embraced the law as a tool for progressive change, and this is not just because the current leader is himself a lawyer. Appeals to the UK Equalities Act (2010) and to the determinations of the European Court of Justice have allowed human rights activists to frustrate the Conservative government’s regular attempts to ignore the needs, rights, and well-being of those citizens with whom it has no sympathy. Senior police officers have stood up to bully-pulpit politicians trying to interfere in operational matters, and courts have insisted that legislation be subject to judicial scrutiny. Instead of thinking about law as a set of rules that prohibit actions and protect the status quo, progressive thinkers have come to see that the law could be used to establish sets of permissions and entitlements that should be available to all. Many Labour politicians now see that those who are disadvantaged in society can make use of the law as a lever to improve their position. Rather than a shield for the rich, law has come to be seen as a ladder for the poor.
What is true in the UK is also true in other states around the world. The legal problems of a former, and perhaps future President of the US, have dominated the news for months. His view– that when a court finds in his favour, that shows the bravery of the judges and the soundness of the law; but when a court finds against him, that shows the corruption of the legal process and profession – is an almost perfect expression of the non-Aristotelian answer to the Aristotelian question: that the Best Ruler (for that is what he believes he is) is always to be preferred to the Best Law. Likewise, in Israel, which once prided itself on being the only country in the Middle-East that practiced Western style democracy, with extensive civil rights and an independent judiciary, is now led by a man who angrily denounces international courts and legal institutions that dare to criticize his conduct. Rather than offering evidence that the conduct of his government remains within the boundaries of international law, he and many of his supporters consider it an national affront that anyone dare to hold him to account for his actions. He may or may not be guilty – that is for a judge to decide, after a dispassionate review of the evidence – but to consider himself exempt from the jurisdiction of international courts is to abandon the values on which the Israeli state was founded.
Aristotle’s question, then has not lost its relevance and, sadly, Erasmus’s advice continues to be ignored. Rulers who seek to live outside of the law, almost invariably end up damaging or destroying their own reputations and, more importantly, the people over whom they rule. Even the best rulers make mistakes, but most rulers are far from the best: they make lots of mistakes. Legal processes by contrast are great levellers – all must abide by the same rules – and at the same time act as meaningful restraints. When rulers think that they can act with impunity, they tend to act badly. When rulers worry that they will be held to account for what they do, they take more care to act consensually and responsibly. Better the rule of good law, which fixes expectations and entitlements. The law cannot make the world perfect, but it can make it more predictable, more equitable, and more pleasant.