We Need the Rule of Law – and More of It – in a Time of Crisis

Learn more about Guy Kerr.
Guy Kerr
General Counsel and Board Secretary
George W. Bush Presidential Center

In a democracy, the rule of law provides order and fairness to communities and citizens. And during a disruptive crisis like the one the world is experiencing, the rule of law becomes even more important

In democracies like ours, the rule of law provides order and fairness to communities and citizens without which chaos would result. The principle that all people and institutions are subject and accountable to law that is fairly applied and enforced is fundamental to our way of life as Americans. It is so central that we seldom stop to think about living in a society without this foundational underpinning.

But during a disruptive crisis like the one the world is experiencing, the rule of law becomes even more important. Crises can lead to mass uncertainty, and that can breed mass confusion and violent actions and reactions as individuals seek to protect themselves as they see fit.

Fortunately, we have not seen Americans spiraling down into violence. Still, lawmakers at every level have had to enact laws and issue orders based on hard and sometimes unpopular choices. And during a crisis, survival-of-the-fittest tendencies cause people to decide if and how they will comply with new or even old legal mandates. Self-justification becomes the norm. We even see hints of that in our unwillingness to “social distance” ourselves as we seek relief in walks along bike paths and in parks.

Survival is certainly the new norm in the disrupted business world. Enterprises are being forced to shut down or reduce operations, lay off workers, and financially re-engineer themselves to simply survive.

Contracts and legal precedents that the rule of law depends upon to provide order and certainty may not work for the benefit of all parties in a crisis. In fact, some contracts may punitively favor one party or the other but not both. For example, lawyers may have included “force majeure” contract clauses that happen to cover pandemics but the net effect of strictly enforcing those provisions may be unfair in the current situation. Doubtless we will read about or witness many examples of these dynamics in the days ahead.

As we consider all these issues, the question is, does the rule of law work as it should in a crisis? Is the rule of law enough to avoid turmoil?

So far, the answer is yes. And based upon past experiences, it will remain yes. But clearly, the rule of law is not static and its principles adjust under changing circumstances. So, the other part of the answer is that we will need more of the rule of law throughout this crisis to achieve a good and fair result. A large amount of trust, personal responsibility, and common sense is required. Relationships especially become more critical at every level.

We need to be responsible for protecting ourselves as well as those we could adversely impact and those who cannot protect themselves. We need to trust the experts and medical research unless and until that trust is proven unworthy. We need to trust our public officials and others to be honest and forthright and to make the best decisions possible under the circumstances. We need to trust that laws and regulations will be applied reasonably and flexibly to avoid permanent hardship. In a crisis, the need for trust is often thrust upon us rather than earned or not earned over time.

Where a contract might provide certainty in a crisis, the result might be totally unfair to one party. But if the parties have developed a positive relationship over time, they may be able to agree on a fair enough outcome for both parties.

Trust, personal responsibility, common sense, and relationships — during a crisis, these take on elevated significance and are critical to managing through to a result that is better, faster and fairer than the rule of law may have dictated. Trust and strong relationships usually take time to develop but hopefully, we will experience these forces in action in the coming days.

At some point conditions will improve. The economy will be reconstructed. Jobs will be restored and new ones created. And the lessons learned from this ordeal will be communicated broadly. Lawmakers will enact new laws and take actions based on the coronavirus experience. Lawyers will revise their contract forms to be sure they adequately cover pandemics and existing contracts will be litigated — some for good reason and some not. Legal precedent will be applied to an unprecedented fact situation. That is what the rule of law contemplates.

Until conditions improve, we all — individuals, businesses, non-profits, and governments alike — would be well served to think about what each of us can do to develop more trust and better relationships and exercise personal responsibility so that when the next act of God or act of man spawns a crisis, we will all be better prepared to deal with the consequences.

Meanwhile, we can be grateful in our democracy for the rule of law. As the American Bar Association puts it: The rule of law is a set of principles, or ideals, for ensuring an orderly and just society.