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In 1919, Germany adopted the Weimar Constitution. After its loss in the First World War and the abdication of the Kaiser, Germany formally became a liberal democracy and a parliamentary democracy.
Article 48 of the Weimar Constitution allowed for what Italian philosopher Giorgio Agamben calls “a state of exception.” In an emergency, the article allowed the German president to unilaterally direct the military to do whatever he felt necessary to restore order, including the indefinite suspension of fundamental rights articulated elsewhere in the constitution.
In 1933, Hitler—having been appointed as chancellor despite not having won an election—persuaded President Paul von Hindenburg to issue a decree, per Article 48 of the constitution, suspending most constitutional rights.
This was the first of *many perfectly legal steps* that Hitler undertook to transform Germany into a totalitarian state.
In other words, the Weimar Constitution remained fully in effect as the highest law of the land throughout the entirety of the Nazi reign, only being abrogated in 1945 with Hitler’s total defeat.
Nazi Germany was completely legal under the constitution of a liberal democracy. The Holocaust was completely legal.
It’s important to keep this in mind when evaluating concepts like “rule of law.”
In the US, slavery was perfectly legal and escaping from enslavement or liberating enslaved people were criminal. The mass internment of Japanese Americans was legal. The genocide of indigenous Americans was and is perfectly legal. Murder and theft by the police are routine and, again, completely legal, thanks to the doctrine of qualified immunity.
In the US, the president is immune from prosecution for any acts committed in an official capacity and thus cannot act illegally as president. Should secure a second term as president, Donald Trump would be free to do literally anything without legal consequence.
Of course, most proponents of #RuleOfLaw would object to these outcomes—the Holocaust, slavery, an unrestrained Donald Trump. But all of these are perfectly, completely legal under the constitution of an allegedly liberal democracy!
And thus one of the contradictions inherent to the concept of Rule of Law. Its proponents understand it to mean certain kinds of *outcomes* they associate with “liberal democracy” regardless of the actual laws involved or the legal processes in place for adjudicating and interpreting these laws.
When people advocate for Rule of Law, in other words, they tend to mean “the production of legal outcomes we see as good and just,” not the equal and dispassionate application of actual laws.
@HeavenlyPossum Even if one remains a liberal, it should at least provoke thought about how delicate rule of law, meaningfully defined, is. The republicans of old understood this. The modern ones did too. What it really takes to "keep it".
What really "keeps it" is not the laws themselves. It is society forcing the powerful to adhere to them, and the constant threat of being overthrown or removed from power. It is right there in social contract discourses.
@HeavenlyPossum The Law makes Outlaws of us all, eventually.