What's the Rule of Law?
After reading, The Rule of Law by Sir Thomas Bingham, I have found myself more aware of the intricacies which are offered by the Rule of law and understanding the use of the term in a modern democracy. The recent developments in America under the Trump administration have raised alarms globally for Human rights, including the right to a fair trial which is a fundamental component of the Rule of Law.
As a believer in Human rights, I find myself more inclined to the the 'thick' version of the rule of law as opposed to the 'thin' version, explored in the by Sir Thomas being as a version of the Rule of Law which includes Human rights, Community and democracy. The 'thin' version however, does not include such protections and is defined by the will of the state. In my opinion and as is argued by Sir Thomas Bingham, the very fundamental fairness of the Rule of Law and its defining factor, equality before the law, cannot be enjoyed in the 'thin' version as human rights regulate the fairness of action in modern society towards minorities. The law therefore cannot be simply the will of the state as this creates an arbitrary abuse of power. Ultimately, the thin version discriminates and removes equal access to the law. The Rule of Law extends beyond a legal formality.
American context:
When exploring America therefore, if an individual is to accept the 'thin' version, it can be said that the removal of illegal 'aliens' without due process and a fair trial is within the definition of the rule of law, as it is brought about through the will of the state and therefore exercised legally.
However, focusing on two fundamental components of the 'thick' version of the rule of law:
Principle 5: The law must provide adequate protection of fundamental human rights.
Principle 9: Adjudicative procedures provided by the state should be fair.
{The Rule of Law - Sir Thomas Bingham}
When exploring this within the American context we can view a fundamental breakdown in the 'thick' version of the Rule of Law and also the 5th and 14th amendments of the US constitution.
The amendments are as follows:
Is it fading? Due process and ICE cases.
The fundamentals of the amendments is that the due process of the law must be followed, and until such a point that the rule of law is successfully followed, an individual cannot be deprived of their liberty, life or property. The 14th amendment extends this due process to a requirement of equality under the law.
These constitutional amendments align with the above principles in their requirement of a fair trial, seen by Article 6, in the Human rights act 1998 (which is in essence Principle 9). Therefore, an inability to follow such due process is not only unconstitutional but also against the Rule of law. In order for their to be a fair trial there must be due process as the due process respects an individuals legal rights and therefore their right to a fair trial.
The inability of the Trump administration and ICE to follow due process and provide such legal rights is seen in an abundance of cases.
To name a few:
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J.L.V. v. Acuna – Deportation of two mothers and four children to Honduras
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O.C.G. – Guatemalan asylum seeker deported to Mexico despite judge’s order
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Operation Midway Blitz – Chicago arrests of undocumented immigrants
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Supreme Court lifts restrictions on ICE stops – Los Angeles
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Fast-tracked deportations bypassing immigration courts
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Expansion of expedited removal procedures
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Use of fines and lawsuits to pressure self-deportation
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Detention of Rümeysa Öztürk
This lack of care for due process seen within the Trump administration is leading to the disintegration of the Rule of law in America. One of the most shocking is the US Supreme courts removal of restrictions on ICE stops, effectively allowing for racial profiling and stops by ICE which do not require probable course.
The US has also slipped to 26th in the WJP Rule of Law index (as of 2024 prior to the Trump administration), a drop from 18th in 2016.
https://worldjusticeproject.org/rule-of-law-index/global/2024/
The Rule of law in American has been decreasing in the last decade, however, without the most recent data from the WJP, it cannot be certain that the Rule of law has dropped further, however, for reasons stated above including the dismissal of due process, not only a constitutional requirement, but a requirement of the Rule of law as it applies legal protections and often leads to a fair trial, as is required by said due process. The Rule of Law in America is most certainly declining further.
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