USA, China and the rule of law

Originally published in Italian by Formiche.net

The silent slaughter happening in Cold War II between China and the USA is that of the rule of law, the absolute primacy of the law, theorized by Cicero (legum servi sumus, ut liberi esse possimus) and applied in political practice since 1200 with the Magna Carta that required King John Lackland to respect the rules of “due process” – and therefore to stop throwing people in jail on a whim. The rule of law is the pillar of Western democracy. It guarantees a country’s democratic stability and “cuts” the world in two: freedom, on one side, might on the other one.

In a paradoxical inversion of sense, however, the U.S. turns into a news the mere charges against four Chinese researchers who, having not yet been convicted, are still protected by the presumption of innocence . China, for its part, complains about the violation of the human rights of its citizens committed by the U.S. However, in China, the fǎ zhì is read not as “rule of law” (法制) but as “rule by law” (法治). The two ideograms are pronounced almost in the same way but have a profoundly different meaning (see the seminal essay by Ignazio Castellucci “Rule of law and legal complexity in the People’s Republic of China” published by the University of Trento). The first ideogram translates “law as a system”. Therefore a concept similar to the Western “rule of law”. The second ideogram translates “law as an instrument” and therefore subject to the will of power. It is difficult, therefore, to speak of China as fostering the supremacy of fundamental rights, but it is precisely the violation of fundamental rights that China invokes about the charge of its researchers.

Therefore, to summarize, the “homeland of democracy” does not wait for the end of a trial to consider the defendants guilty, the archetype of the anti-democratic regime invokes respect for the fundamental rights of the individual.

Such, we repeat, a paradoxical inversion of sense is caused by having dragged the rule of law into the world of realpolitik where the end justifies the means at any cost including, as in the case of the pandemic, conceiving the state of emergency as a state of exception (i.e. transforming the need to decide quickly into an executive power legibus solutus).

The United States are following this dangerous path. To apply tactically of a political strategy, they challenge an internationally recognized principle of guarantee which, to remain so, should stay neutral. This is not going to happen, however. Neutrality is lost, and the attenuation of the rule of law becomes functional to the pursuit of geopolitical targets.

Objective evidence of this change emerges from the way the U.S. manages the (geo)political communication about China and the Coronavirus. China’s responsibility for the spread of the pandemic has entered the U.S. narrative without any more need to provide supporting evidence.

A statement by Secretary of State Mike Pompeo reported by Federico Rampini on Repubblica.it says verbatim “Today we are here wearing masks and counting the dead of the pandemic because the Chinese Communist Party has betrayed its promises.

It is a change of pace in the American communication strategy. It no longer needs to invoke “acts of faith” or rely on the “confirmations” of friendly countries. The “fact” is now ascertained. There is no need for “evidence” or “judgments” to consider “true” what “everyone knows”.

Correct: the rule of law works in the hall of justice and not in press conference rooms. Therefore, outside the courts, no one – neither the media nor governments, in particular – is required to follow these strict rules that limit scoops and political arm wrestling. Nevertheless, we already know what it means to transform the law from a system into a tool because we already have the actuale example of what it means.

To invoke “full powers” above and beyond the rule of law, or to reduce the rule of law to a tactical instrument, is to think that we can fight evil demons by becoming worse than them (Luke 11, 15-26). The evangelical precept is challenged by a principle of Sun Tzu’s Art of War: “to know the enemy you must become like him.”

Is this what is happening to Western democracies? Accepting compromises on principles, and therefore conceiving the law as a “tool”, causes exactly this: the transformation of a democracy based on the certainty of rules, into a system based on might.

The classic refutation of this argument is that it concerns political or legal philosophy. By contrast, in real geopolitical scenarios ordinary rules can be flexed or violated (paradigmatic is the case of espionage) in the name of the pursuit of an objective of national interest.

Such a statement would not be correct.

Building values to unite a nation is a fundamental element to support the work of the political class both in terms of internal affairs and foreign policy. In this latter regard, the issue is relevant in at least two areas: that of the international position of a given country, and the type of relationship that is established within an alliance in balancing national interests and coalition’s goal, which may not necessarily coincide.

From an Atlantist perspective, therefore, the care of the rule of law becomes an effective unifying element, precisely because of its transversality. Not being tied to specific or particular interests it can more easily represent the “common feeling” which justifies and sustains the existence of a political, economic and military alliance.

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