When asked by a British journalist what he thought about Western Civilization, Gandhi responded “I think it would be a good idea.” Might we not say something analogous about the rule of law? It would be a good idea if societies really were governed by a set of universally agreed to, impersonal rules that defined a framework that “kept fair play” (William Blake, “Blindman’s Bluff”).

But that is just an idea: in reality law does not “keep fair play” but is a partisan tool to advance the interests of the groups with the power to write and enforce it. Ruling classes change as social systems change, different factions of the same ruling class assume power, through democratic or violent means, but the one constant, as Glaucon, developing Thrasymachus’ cynical conception of justice in The Republic, tells Socrates, is that justice (law) is just “the right of the stronger” dressed up in universal language.

The recent decision of the US Supreme Court that Presidents enjoy absolute legal immunity for actions undertaken as part of the official duties of the office seems to confirm the cynical view. Liberals have responded that the decision in effect makes the President an absolute monarch. The concern expressed by the dissent of the liberal judges and the commentocracy is understandable, but I think a better analogy would be with the Pope. Absolute monarchy was an attempt to identify the state with the body of the monarch (“L’etat, c’est moi,” said Louis XIV ). But the Supreme Court did not decide that Presidents have personal immunity for any act whatsoever, but only those undertaken as part of their official duties. The Pope is infallible in matters of theological dispute, but not absolutely infallible. The question that the decision poses is thus: what is the scope of the official duties of the President?

That is the problem posed in a rhetorically arresting way by Sonya Sotomayor’s argument that the decision opens the door for Presidents to order the assassination of their opponents by the military in their role as commander in chief of the armed forces. I am assuming that she intended the argument as a reductio ad absurdum to expose the problem that the scope of “official duties” is unclear. The President really is the commander in chief of the US armed forces, and thus, in principle, could issue commands which, while illegal in other respects, fall within the scope of official duties. I will leave it to experts in US constitutional law to parse the details of the decision. My interest lies in assessing its implications of for the interpretation of the value of the idea of the rule of law.

The nakedly partisan division in the current US supreme court supports the Marxist argument that behind the appearance of legal neutrality lies the reality of class power. Almost every decision that this court has made has split along conservative-liberal lines. But that division is only the surface expression of a deeper structural problem. Liberals and conservatives in the US and elsewhere represent two factions of the same ruling class: no matter which one exercises political power, they are both representatives of the class that owns and controls the resources and wealth that everyone needs to access in order to survive and live full, meaningful, valued and valuable lives. Law is thus– as Glaucon warned– class interest expressed in abstractly universal form.

Fair enough. It would be difficult to dispute that the ultimate power protected by law is private property. Think back a few summers to the Wet’suwet’en blockade against the passage of the Transmountain pipeline through their territory. Despite the fact that the Canadian Constitution recognizes the validity of Indigenous law, when push came to shove, and the exercise of Indigenous law was going to impede a project deemed of paramount economic significance, the courts sided with the Liberal government and helped force the pipeline through Wet’suwet’en territory. But it was not “the law” that enforced itself, but the RCMP armed with military grade weapons. One could multiply examples but the point should be clear: historically, the idea of the rule of law was a progressive check against the ambitions of absolute monarchs, but in reality it only expressed in abstractly universal form the partial, private interest of the rising bourgeoisie.

As with so much of Marxism, one must grant that its criticisms expose real contradictions in capitalist society. The problem arises when one then asks: but what will you put in its place? Anarchists argue that human beings are capable of spontaneous self-organization and do not require the state form and its legal structures to govern their affairs. Marxists have been more ambivalent. Marx himself was brutal in his criticisms of Bakunin, but also taught that, under a fully developed capitalist society, that the state would “wither away.” Does that mean that law would wither away too? Marxists have been divided. In the early days of the Soviet Union the majority argued that bourgeois law would give way to proletarian law. Evgeny Pashukanis, the most important Soviet legal theorist, disagreed. He argued that law was by its nature capitalist and that it would eventually disappear once communism matured. There would be pragmatic regulations (like traffic conventions that enforce driving on the right or left side of the road) but no principles that claim the right to govern human affairs because they are abstractly rational and in everyone’s interests.

History was not kind to Pashukanis’ positive argument. Communism did not mature in the Soviet Union but rapidly degenerated into a totalitarian state. The abject failure to build a democratic socialist society has served liberal defences of the rule of law as the rule of abstract principles over private and partial interests well ever since. As E.P. Thompson noted wryly, the experience of Stalinist totalitarianism ought to make even the most committed Marxist wary of “cutting down the hedgerows” (Hobbes’ metaphor for the function of law) on the naive assumption that after the revolution we will all be equal as comrades. Historically speaking– and historical materialists should only ever speak historically– some animals have made themselves more equal than others.

True true. But but ….

it is clear that the actual function of law is to enforce the rule of capital over human life. We thus seem to be caught between two abstractions: the rule of law as the rule of abstractly rational principle over human partiality to their own case, a bulwark against totalitarianism and the guarantor of civic equality, and a promise of a future classless society in which laws will no longer be necessary because social institutions explicitly serve everyone’s material interests, ensure need-satisfaction, enable all-round capacity development, and provide fora for the democratic resolution of disputes. Were such a society to be constructed then of course we would no longer have to worry about the rule of law. But an idea for a perfect society is not a program to create one. The idea of fully developed communism undermines the idea of the rule of law by abstracting from the social conditions that make law necessary. But Marxism is not supposed to be abstract criticism but, as the young Marx said, practical criticism, criticism which immediately translates itself into practice.

Practically speaking, there are no revolutionary movements of any consequence. So the question is: what does one do right now: abstractly condemn the rule of law as a bourgeois subterfuge? Or criticise the reality of the exercise of law on the basis of a defence of the value of the idea of the rule of law and work to realise that idea as far as possible in a given moment, and then work to push it further the next?

If one rejects the value of the idea of the rule of law it seems to me that one cuts oneself off from being a participant in the actual political arguments of the day. It cannot be a matter of political indifference to democrats of any persuasion, liberal or socialist, whether officers of the government of a society of legal equals are granted immunity from the very laws they are supposed to serve. Whatever the constitutional realities of the United States, the idea of the rule of law surely counts against any immunity of government officers for the acts they commit in office. Political office in a liberal-capitalist society is not supposed to be a sinecure but a position conferred by consent of the governed. The historically progressive value of the rule of law was that it undermined the claims to natural superiority that feudal aristocracies and monarchs claimed. Henceforth the law, not the body of the monarch, would rule. Power could be criticised and controlled by objective standards that frame the boundary of legitimate and illegitimate behavior. Legal equals can look each other in the eye; no one is owed deferential treatment.

In this vision the law is not oppressive but the objective form that the human capacity for self-determination takes. To be autonomous is to be capable, literally, of giving oneself (auto) the law (nomos) that one willingly obeys. In the liberal tradition law is therefore freedom preserving– a principle that socialists should themselves preserve. The problem with the liberal rule of law is that it is not yet the law that rules, but ultimately the class interests of the owners and controllers of capital. But few could be so historically naive as to trust that a post-revolutionary society could rely on the commitments of its leaders to recognise and respect boundaries to their power. The idea of the rule of law cannot on its own constrain power, but the fact that it imposes regulatory principles whose validity does not depend upon their being recognized by governments of the day was a vital step towards democratic society.

The Conservative justices may not have transformed Donald Trump into Louis the XIV, but it is impossible to read their decision as anything but a step backward away from democracy and towards autocracy. But if we criticise the judgment because it re-introduces an aristocratic distinction between those subject to the law and those superior to it, it must be on the basis of accepting the value of the idea of the rule of law itself. How far the affairs of human beings can be determined by spontaneous deliberations is an open question. But as we work towards a more democratic future we must not trust anyone’s good political intentions. Anyone- business person or politician, state functionary or revolutionary– who argues that the law is superfluous because they can be trusted to govern themselves– absolutely should not be trusted.