In the political discourse, one frequently hears about the formation of institutions of the rule of law. However, historically the term ‘rule of law’ appeared in legal and political theory as a polemical concept which settled a score with the practices of absolutist regimes. This was the revolutionary achievement of the rise of the bourgeoisie. This expresses itself first of all in the formal rationality of the rule of law. This formal rationality transforms social relationships and conflicts into legal relationships by introducing and guaranteeing universal forms of dealing with each other. On the one hand, the intention of this was to guarantee peaceful competition among citizens via mutual and non-violent forms of conducting affairs (contracts) and formal rules (laws) to regulate the possibilities and limits of the pursuit of private interest.
On the other hand, the concept of the rule of law guarantees the peaceful coexistence between citizens and the state, above all through civil rights and rights of participation, the separation of powers, the linkage of the state’s authority to parliamentary laws, and through due process, fair trial and other legal guarantees in criminal proceedings. The obligation to adhere to the principle of legality is intended to prevent the forces of law and order from intervening arbitrarily in society and the private lives of individuals according to the current ‘state of affairs’, just as a local lord or ‘pasha’ might have done in centuries past.
Material rationality complements the formal rationality of the rule of law. Its objective is not legal certainty, but is related to content, particularly in the socio-economic field. The apparatus of an executive governmental model which ensures the provision and their distribution of public goods points towards this content. In the institutional form of the interventionist state, the material rule of law subsumes the liberal construction of a government of laws, not of men. This governmental technique is shown in systematic interventions to regulate markets and production, to provide an infrastructure and basic services (health, education etc.), to correct market events by means of the distribution of income, risk provisioning and the primary distribution of public goods. The more the state is forced to act as a neutral agency for public welfare, the more resolutely it has to free itself from the bonds of formal rationality.
The Palestinian Authority under the Oslo framework has, however, not been able to even begin to realise either formal or material rationality. As expected, the PA’s institution-building project has failed. In the crisis of the political elites in the West Bank and the Gaza Strip, the structural incompatibility of state-building and liberation have become wholly obvious. The pendulum effect of Palestinian politics between utopia and conformity, between the idealisation of the state-building process and the defence of the status quo has come to a halt which is threatening for the political elites.
In the current crisis, the rule of law has shrunk to an appendage of the action programme for executive governmental techniques, which pretends to assert a supposedly objective interest of society in different areas of life. Public authorities exploit their mandate to carry out political education, execute the Palestinian Authority’s right to impose punishments, and above all safeguard the security interests of the elites. In addition the dependant Palestinian Authority was not able to find solutions for the growing unemployment, structural poverty, exploding costs in the education and health systems, problems of securing the energy supply and other crisis phenomena, and was not able to employ governmental techniques that break through the Israeli colonial project and the post-Oslo bureaucratic pseudo-rule-of-law system.
On the contrary, the Palestinian rule of law and state-building project has taken the form of a gradual extension of the security apparatus and an increase of its budget. During the last 5 years, the Palestinian Authority’s security apparatus was equipped with additional interventional instruments and competencies, (which are in part based on state of emergency laws), as well as additional international funding and considerable increases in personnel. Conversely, the civil liberties of individuals and groups had to take a back seat. For their own safety, and for the sake of security in general, they were ‘taken into custody’ in a political sense. These policies have created considerable bouts of repression which remind one of Bodin’s comment that legitimate power is all the more secure if it has less security forces.
In the course of these developments, the general power relationship between citizens and the authority is increasingly being experienced as a state of conflict, as an internal system of surveillance and threat if and as far as the other branches of government (Judiciary and the Legislative) do not sufficiently ensure the necessary safety of the individual. If one can believe the wide range of statements made about the state of mind of the Palestinians, fear is widespread. In today’s vocabulary this is expressed as political apathy, adopting a lower profile or withdrawing into private life. This is understandable if one considers the deconstructing power of the Israeli occupation army and the overwhelming control of the Palestinian Authority’s security forces in the West Bank and in the Gaza Strip.
However, this policy of fear can result in the following changes in behaviour: intangible threats can lead to a feeling of intimidation and paralysis, which manifest itself in an excessive degree of conformity and in efforts to remain inconspicuous at all costs. This reaction fits in well with an upbringing in families, schools and workplaces which is not based on trust, but on strictness and punishment, and which leads to the formation of an authoritarian personality. However, if fear goes so deep that those affected no longer perceive that they have room for manoeuvre in their actions, and thus abstain from political protest and no longer think about social alternatives (let alone express them), then the perception of danger becomes a danger in itself. Because not taking action out of fear creates ever more opportunities for those who create the fear. The less those who were meant to be the authors of legislation and are now its subjects make use of their rights, the sooner those rights will be taken from them. The more they back away from the danger of being branded as enemies, the more freedom the security authorities enjoy. The louder their silence in the face of intimidation in order to not become isolated, the more isolated they become within the ‘silent majority’ – even if they have secretly had their courageous thoughts.
In this scenario, the defence of the liberal rule of law paradigm (in its formal and material forms), however worthy of criticism it may be, obtains considerable urgency. As Marcuse correctly mentions in his book ‘One-Dimensional Man’, the rule of law, however limited it may be, is still infinitely safer than rule which is above the law.