Disqualification Is Not a Democratic Process

Pious invocations of the rule of law--however sincere or justified--cannot by themselves provide legitimacy

“Nobody is above the law.”

How many times have I heard that phrase over the past decade? I read it again today, in a news report about Marine Le Pen’s conviction for embezzlement, which bars her from running in the 2027 French Presidential race, a race she might well have won. Valérie Hayer of the centrist Renaissance party founded by and led by the current president, Emmanuel Macron, intoned the familiar mantra, calling the independent judiciary and the separation of powers “the heart of our democracy.” Le Pen was accused, Le Pen was tried, and now Le Pen has been judged, and sentenced, just like any other citizen; her status as, potentially, the people’s preferred tribune was not allowed to affect the judgment of the judicial system at any point in the proceedings. That is how it should be; that is a victory for democracy. Because in a democracy, nobody is above the law.

It’s a beautiful line. I wish I could say it with conviction. But I can’t.

If these were ordinary times, there would be nothing strange or remotely objectionable about the behavior of the French judiciary or Hayer’s statement. In normal times, if the leader of a party breaks the law, that party’s own members will clamber over themselves to drive the malefactor out, both because they will have become a political liability the others are eager to get rid of so as to preserve their own positions, and because without that leader in the way there’s room for others to rise and take their place. The party is bigger than the leader and the people are bigger than the party, which is to say the people want to see the law applied impartially, even to their leaders, and so the parties mostly do as well. To say that nobody is above the law, in this context, is to affirm that the law is made both by and for the people, that nobody is above it because the people are behind it.

Is Le Pen’s party bigger than she is? Not really, just as the GOP isn’t really bigger than Trump, or Likud bigger than Netanyahu. As for the people, there’s a gale force wind blowing through democracies around the world, with a thunderous voice booming from within it, claiming that the law is no longer made by and for the people, that in fact the individuals and groups running the show for decades and claiming to be the humble servants of the people and the impartial interpreters and enforcers of the law have been putting themselves above the law the whole time. Perhaps this voice is speaking nothing but lies, but whether it lies or speaks truth or does some of both, enough people have come to believe it that they need a tribune who will take the law back for the people, which can only happen if they put themselves above the law in the name of the people. Parties and candidates who espouse this view have been gaining strength and winning elections all around the world, and empowering their would-be tribunes to think of themselves, and not the law, as the true expressions of democracy, of the people’s right to rule.

I want to be clear: this development is a disaster. But a political system faced with someone who violates the law and demands impunity because they are the voice of the people, and winning substantial support on that basis, is already in the midst of the disaster. The notion that by applying the law impartially—giving you the benefit of the doubt that you are in fact doing that, and not just pretending to do so—you can thereby avert the disaster is pure delusion. The facts of the case itself are nearly immaterial if they are not believed outside the courtroom or whatever body is charged with applying the law.

It’s easier to understand why that might be by looking at a political system where we—we liberal democrats, we believers in the rule of law and an independent judiciary and all that—would affirm the kind of claims that the populists are making against our systems. Iran, for example. In Iran, candidates for office are vetted by a panel of clerics charged with making sure that they will follow Islamic law, which is to say, that they will follow Islamic law as the clerics interpret it. That system is widely understood to be oppressive and undemocratic; indeed, the whole vetting process is just one of many mechanisms by which the clerical rulers of the country place themselves above the law.

But someone defending the regime could say that, on the contrary, it proves that in Iran nobody is above the law. The law comes from God, after all—if it came from anybody else, from human beings, then those human beings would be, in a sense, putting themselves above the law. Of course the law does not interpret or apply itself, but in Iran those who interpret and apply it are trained specifically to perform those intellectual tasks. Surely that is as it should be, though—you wouldn’t want just anybody deciding what the law means, would you? You’d want people who are appropriately expert, who have the right training, and who have demonstrated the right values, precisely because nobody—not even the people collectively—has the right to place themselves above the law or outside the scope of its sway.

When the Iranian regime disqualifies candidates, everyone who doesn’t believe in the Islamic Republic’s propaganda knows that they are doing it for self-interested reasons, that they are stifling the people and trying to keep them down, that they are behaving anti-democratically. It avails them nothing to explain that they are just following the law. Why then should similar behavior work for Romania, where the courts have been making a habit lately of rejecting far-right political candidates as ineligible for office? The fact that so many of their supporters viewed the cases against Călin Georgescu and Diana Șoșoacă—and against Donald Trump and Benjamin Netanyahu and potentially Le Pen—similarly to how we liberals view Iran’s behavior is merely a demonstration of how many people do not believe in the integrity of the law in Romania, America, Israel or France. But the unconsidered near-universality of that belief is all the law actually has to justify its guardians placing it above anyone.

I don’t know what will happen now in France. Maybe Le Pen will successfully appeal her conviction in time to run in 2027. Maybe her heir apparent, Jordan Bardella, will run in her stead, win, and pardon her. (Could he then step aside and let her take his place? I hear there are methods . . .) Maybe France will rally behind a non-populist party, and the furious winds of change will die down, bit by bit. Alternatively, maybe things will keep getting worse, and the country will collapse into outright civil war.

Or maybe the law will successfully separate itself from the people, setting itself fully and permanently above them. I wouldn’t bet that way, but it could happen. If it does, though, could we really call the resultant regime a democracy?