Rule of Law May Be Likelier if Politics is Multiparty


Is it possible in a nation with essentially only one political party for a judiciary consistently to apply the rule of law? It is harder.

Hypothetical cases: Suppose someone is ordered to answer in court for failure to pay a national tax, and that by law the tax was $1,000. Imagine two mutually-exclusive directions for the case.

The government says Democrats favor providing the public with services, the services are expensive enough that taxes are necessary, the current President who was elected is a Democrat, and the people have spoken. Therefore, the defendant must pay $2,000. The judge was appointed by an earlier Democratic President and agrees, ordering the defendant to pay double the tax, not counting penalties or costs.

Or the case could go like this: The defendant says Republicans oppose all taxes, the current President who was elected is a Republican, and the people have spoken. Therefore, the defendant need pay nothing. The judge was appointed by an earlier Republican President and agrees, ordering freedom for the defendant, not even imposing penalties or costs.

Either case would be plausible if the nation was as firmly a one-party state, either Democratic or Republican, respectively, as, say, the People’s Republic of China.

In the United States, I’ve heard of only one body of law in which, according to an attorney (likely speaking in pursuit of legal business), many judges tended to rule consistently with the views of one political party, and that body of law was state election law, and even then, according to the lawyer, only some judges did so. For a primary election, in which candidates compete for a nomination by one party, one campaign looked for a lawyer in case of litigation and for such a lawyer the desire was for one who had contributed to judges’ political campaigns. So sometimes the rule of law is forgotten, but mostly it is applied.

Politics is the allocating of the power to govern a society among everyone, including members of the society and outsiders able to exert power. (Discussion of a society here will generally be of a nation, although similar principles apply to other kinds of societies.) A nation recognizes the vital importance of that process and many people seek to control it, and not just for the abstract value of making sure someone takes care of it but often in order to increase a claimant’s own power within a nation for better or worse. Political parties, like other institutions, offer a concentration of access to resources, thus efficiency in the use of resources needed to access power, thereby serving more people than could serve themselves to like ends at like cost. Because some people feel relatively and unfairly excluded from the process, an opportunity is open for other parties to form, step in, and fill a vacuum felt by those other people. Local law and political custom should permit it.

Having a two-party political system, in which both parties are nearly equal in choosing who become judges with similar jurisdiction, changes the dynamic of how judges judge from that in a single-party system and therefore of how parties to a potential case choose, prepare, and present their cases. A system in which two political parties share political power means that a judge is more likely to face a case in which a mixture of political parties have an interest and disagree on it. In our Federal level of government, judges once appointed have little risk of losing their jobs or getting a pay cut, regardless of which party is in office or appointed a judge. Because judges work together, some courts sitting on a case with multiple judges and appeals generally being as of right and being decided by other judges, judges tend to be pulled toward the views of other judges and away from the views of the successors to their appointers, even when the appointers and their successors are from the same political party. Many cases are handled by multiple judges, increasing the chance of judges of different parties having a say on the same case. That makes it harder, albeit not impossible, for a judge to favor one political party over the other. That difficulty encourages a judge, and therefore the case parties, to turn to law, law which exists regardless of which party is in current leadership. Both political parties can at least agree that the law already in place is valid until replaced by new law. Since most people throughout the nation and most people in the nation’s elite have an interest in the law and in a degree of stability, people with the authority to promulgate are likely to preserve the availability and stability of the law. That commends the law to the judges, who thus have a tool by which to arrive at a compromise between the views of the political parties. It is not a compromise made by splitting the difference between the political parties but by the more indirect yet more legal method of reliance on the law that, essentially, both political parties endorse, subject to amendment in the future. This appears likely as true for any plural number of parties as for two.

A single-party state can have rule of law, but probably less of it. Reporting out of the People’s Republic of China about drug cases illustrates its presence if not its pervasiveness. Some chemists there make drugs that are not unlawful there, but laws are updated and meanwhile the chemists change their formulas so that they are not violating the law. This suggests that convictions of those chemists are hard to obtain precisely because the rule of law is applied. Perhaps a different law could be written, such as one against any drugs causing euphoria without medical need and authorizing a fast-acting administrative agency to identify such drugs’ formulas so that prosecutions could ensue without the law being too vague to inform actors, but chemists who can invest in research and change formulas quickly can still benefit from the rule of law, and that’s better than relying on revolutionary justice or mob justice.

Revolutionary justice likely gained its credence when law itself, no matter what it said, was so suspect among most people that law itself was rejected by most people and instead the judgment of revolutionary victors was applied. But while victors’ justice, when the victors are themselves popular, can be just in its conclusions, even as procedures are merely theatrical, that works only in cases with fewer ambiguities than in most other cases that, even with fair procedures, ordinarily would lead to convictions. And, soon, the victors run out of such clear-cut cases even when crime is still widely perceived as ongoing at an unacceptable level. Then, the victors need to start investigating new cases, and at that point the risk of investigators’ making bad judgments grows. To rein in the making of bad judgments, a system of adjudication needs procedures to weed them out. Those procedures need to be in law for the same reason that substantive duties and rights need to be in law: to inform people who need to know so they can be responsible.

One-party political systems may be the almost inevitable result of a civil war having been one by one largely-unified side, which then forms (if not already formed) a single political party that represents the victors’ interests. But once a nation is out of the state of many people wanting to kill other people inside the borders and are willing to win some and lose some in ways that leave everyone alive and participating, there is national safety for disagreement between people on important issues, for associating with each other on areas of agreement, and, thus, for a multiparty system. If a single-party system is retained even that late, it is likely to fail to reflect the needs of too many people for political dissatisfaction to stay low, and in response repression by the more powerful side is likely to grow, the repression feeding dissatisfaction and polarization (some will love the system and others will hate it), with less means for bridging differences and fewer people willing to try.

A deeper question may be how willing the national polity is to question authority. This can be shown by the whether the national polity positions faith or science as higher (even with the lower not being wholly excluded). Faith comes with a duty not to question its content except as authorized by leadership (either, depending on an observer’s theological viewpoint, human or otherwise), violation of the duty being punishable, sometimes by death. Science pre-authorizes all questioning of its content, although the validity of a conclusion inferred in a question may not be accepted by anyone and the questioner may get ostracized. Faith would be more consistent with a one-party political system because it would see a second party as mainly distractive, wasteful, and harmful Science, supporting questioning of itself, would be consistent with political questioning of politics, and therefore would be more consistent with a multiparty system in which the system produces results that are generally agreed upon across all major parties until new agreements replace prior ones.

Related to that question is one of the willingness of the national polity to limit the power of the more powerful. Actual limits may be impossible; for example, a national polity can only try to persuade with respect to limiting the rights and duties held by the head of state by the norms of international law, since a nation canot unilaterally amend the norms in general. But insofar as law permits limits, that willingness being greater may increase the likelihood of the rule of law being applied. It is also possible to limit power so much that the rule of law disintegrates, but that would lead to instability and possibly anarchy and that would likely lead to national weakness and thence another change in politics, possibly restoring the rule of law.

Nations are not the only venues for politics and rule of law. Subunits of nations, such as cities, are more likely to follow national models. International relationships among nations and international bodies rely on alliances and enmities more than on political parties and enemies can and do agree to treaties, so that the alliances are somewhat analogous to political parties and adherence to treaties between any nations tends to come under the rule of law. Cross-national political units, often theologically grounded and typically not recognized as equal to nations and not representing any single entire nation but having some political power, are often extralegal but may have their own legal systems and often find a benefit in the rule of law. As the leaders in the part of the entity that is in one nation may be relatively isolated from and differ in political views from the leaders in the part of the entity that is in another nation, such a cross-national organization may be functionally, if covertly, multiparty. Nonetheless, nations are arguably a fundamental unit of organization of the world’s people and are under primary consideration here.

While a nation in a condition so miserable that it resorted to a civil or domestic war that overturned the existing order might need and support single-minded post-war leadership in order to regain public confidence, the nation would be better off if it soon recognized its inherent diversity and evolution on political matters. In most nations, leadership spends a lot of time with itself, using it to communicate internally, the nonleadership public doing the same separately from leadership; this leads to separate evolutions. The nonleadership public is usually more diverse than the leadership, especially since it’s easier for the leadership to purge members who are too heterodox (by any standard) than it is for the nonleadership to do so. This increases the risk that a single party will become politically more distant from the general public. That can be solved partly by accepting, building, and maintaining a multiparty system.

Once multiple parties share the power of national leadership, one of the benefits will be rule of law, the law being published and available for reference by anyone in a virtually raw form (textual in a literate nation) that most political authorities will agree on, and not limited to whatever is disseminated by people who prefer unnecessary outcomes for the audience and therefore choose to insert bias into dissemination. Relying on what opposing parties agree on makes life predictable even through a change in which political party won the latest election. That predictability provides stability and that, in turn, provides a platform for creativity, invention, and growth.