Security of the rule of law put to the test


The rule of law forms the basis of our coexistence by guaranteeing the autonomy and peace of self-determined individuals. What role does the law play in society’s tightrope walk between violence, aggression, and joie de vivre? 

A current example of how quickly a constitutional state can falter was given by the last chaotic days of Donald Trump’s presidency. The concept of truth had been reinterpreted by Trump over many years; his reality became the ideal, everything else was ‘fake news’. Twitter communication supported by 80 million followers and media sympathetic to the president made it possible to conjure up and sustain supposed dangers, which his supporters were convinced they had to fight. Trump had rebelled against the establishment as a representative of the people, he had established himself as a strong man and thereby awakened a longing for control among many citizens. A part of the American population apparently identified so strongly with Trump and his questioning of the election results that a group of supporters even set about storming the Capitol and thus rebelled against the constitution. This also had a strong symbolic meaning. Psychoanalysts find parallels here with the secret desire for patricide described by Freud in his treatise “Totem and Taboo”. The hero, in this case the father state, which originally brought us peace, is identified by Trump supporters as the culprit in the sudden suffering of the people and is punished through rebellion.


Why do we follow rules in the first place? It begins in childhood, when parents teach us which behaviours are desirable and which are not. Prohibitions and corresponding rules on the one hand and adherence to commandments, desired behaviour, including rewards, on the other. Just as a child is given free space, a healthy constitutional state and legal system creates space for the individual and his or her cultural development. Functioning rule of law depends on several factors, of which there are three important categories. First: rules function and are observed if we can identify ourselves in the law that is set and it is clear to us that these rules make sense. Second: if rules are not respected, sanctions must be imposed. Thirdly: the rules must apply equally to everyone. Wherever corruption or totalitarian forms of government prevail, the gap between law and justice is obvious. Personal power is then given higher priority than a functioning legislature, judiciary and executive. In corrupt systems, money and power have a higher value than the rule of law. Corruption is the enemy of the rule of law and democracy and returns us to a chaotic environment where blood feuds were the guiding principle of human society. People can only live together in an orderly manner if it is clear to everyone which ‘rules’ are being played by – and if all people abide by these sensible and sanctioned rules.


In the epilogue to the series “Guilt” by the German writer and criminal lawyer Ferdinand von Schirach, the protagonist says: ‘A person’s guilt is hard to weigh. We strive for happiness all our lives. But sometimes we lose ourselves and things go wrong. Then only the law separates us from chaos. A thin layer of ice, underneath which it is cold and you die quickly.’ This sentence describes the role of law. That fine line between a stable life of peace and harmony on the one hand and chaos on the other. Through this quote it becomes clear how susceptible we humans are to conflict and disturbances that can throw us off track and how important the stable wall of a functioning rule of law is for every individual and their dignity. The concept of dignity has a prominent meaning in Article 1 (1) of the Basic Law: ‘Human dignity is inviolable. It is the duty of all state authority to respect and protect it’.

The correspondence between Albert Einstein and Sigmund Freud from 1932 is about the understanding and meaning of law in the sense of a peace phenomenon. In it, Freud says: ‘Law is the power of a community.’ Freud sees law as an essential building block in the cultural development of humanity. Only law gave people the possibility to rely on a stable external structure. The handling of conflicts entered a new civilised phase when the blood vengeance of humans was replaced by the introduction of the court. The peaceful management of conflicts was henceforth an achievement in which humanity could rely on jurisprudence as a foundation. A wall of security that represents an important step on the way to the self-determined individual. The guardian of this collective stability is the rule of law with its separation of powers between the jurisdiction, the independent judiciary, the executive bodies, i.e. the government and its powers, and the legislature, i.e. the parliament. The walls of security and stability have shifted in favour of the population, resulting in a more peaceful coexistence than in the past. Violence has been reduced through laws, so that the law ensures autonomy, coexistence, and peace.


In recent decades, it has become almost normal for large parts of humanity to have this strong wall of human rights, full access to our fundamental rights, collective security, and individual freedom. The rule of law is a secure framework, the outer wall inside of which we can move and develop. The rule of law sets visible limits to society and to each individual. Any attempt to break out of the corset of laws is restricted and sometimes even punished. The functions of rules within the rule of law are similar to those in the family. Growing up in a social network without rules is a great burden for

children. The rule of law and its executive give people clear boundaries. The state has a monopoly on the use of force. It compensates for injustice suffered and replaces the instrument of revenge. Citizens have learned a sense of injustice so that they can distinguish between what is allowed and what is not.

Can law protect us from the power and violence of chaos that threatens us everywhere? Yes, because we need the law to be able to reconcile conflicts of interest without violence. Consequently, an understandable and acceptable legal system also enables cultural development. The beneficiaries of the rule of law are we, the citizens. The law creates the balance between violence, aggression, and joie de vivre and thus contributes significantly to society’s ability to change and develop despite enormous disruptions.