The Rule of Law

My belief about some things is not important. God exists whether or not I believe, or, if you prefer, does not exist regardless of my belief or disbelief. The walls of this room exist whether or not I believe in them. If I walk into their space I will bounce off, no matter how fervently I deny their existence.

On the other hand, I have come to understand that there are some very important things about which my belief matters very much. There are things that are subject to the Tinkerbell effect – they only exists so long as we believe in them. One of the things that are subject to the Tinkerbell effect is the rule of law. When you get right down to it: the rule of law only exists because enough of us believe that it exists, and believe that it must exist. It exists only so long as we insist that it exists and that everyone, even the non-believers, behave as if it does exist. The minute enough of us stop believing, stop insisting that the law is above us all, that we are all subject to the law – in that moment the rule of law will be gone – as silently and completely as a soap bubble drifting on a summer’s breeze.

So I cling to my belief in the rule of law because it is important. It maybe the single greatest achievement of our society. It is the vessel that keeps all our other values safe. It is the last bulwark against both mob rule and the overweening power of the modern state. It is the rule of law that governs us, that protects us all, and protects each one of us when we stand alone against those who disagree with us, or do not like us because we are different, or fear us.

In times of crisis and threat, there is a temptation to stop believing in the rule of law. A temptation to think that it threatens rather than protects us. We have succumbed to this temptation more than once. Within living memory we responded to a sneak attack upon us by interning American citizens because they, or their parents, or their grand parents were from Japan. In retrospect those actions were not only illegal and morally wrong, they were unnecessary and did not protect us.

The horrific events of 9/11 have sorely tempted me to reach the same conclusions. But I wonder, if we abandon it we stop being what generations of Americans bled and died to create and protect, how we will ever get them back? I have come to understand that, like Tinkerbell, doubt has seriously injured the rule of law. If it is to survive, those who believe in the rule of law must stand up and say – I must say – I believe in the rule of law and will not accept its being taken away. I do not believe that we so weak, are so frightened, are so impotent that we must give up the rule of law or perish. I do not believe that those few who have harmed us, and who will do so again, are so powerful that we must abandon the very thing that makes it worth being an American.

Michael Mullane is a law professor and Director of the Law School Legal Clinic at the University of Arkansas in Fayetteville. He has also worked in private practice in Arizona and in a legal clinic in Maine. Born into a military family, Mullane was a Navy aviator during the Vietnam War.

Independently produced for NPR by Jay Allison and Dan Gediman with John Gregory and Viki Merrick. Photo courtesy of the University of Arkansas.