I’d never questioned the value of the “rule of law” until I heard George Bush invoke it last week to distinguish Us from Them. (“Terrorists exploit grievances that can be blamed on others. Democracy offers the rule of law.”) It startled me since the terrorists he worries about also offer rule of law: their own retrograde version of Sharia law. But that’s one plus about the guy: He gets you thinking in areas you took for granted. He could speak in praise of coffee or hockey and I’d start reconsidering them.

There’s no real connection, for instance, between law and justice. Law is law and justice is justice. Take Justice Minister Vic Toews’s recent “musings” about jailing 10-year-olds. (I don’t really believe federal ministers muse at random; they muse on program. But I’m probably being unjust.) It could be quite lawful and quite unjust. So could torture and slavery.

Yikes, shrieked my editor, when I proposed this. What would replace rule of law — Scientology? But there are other options, mostly in what’s known as the oral tradition. Elders, sages, councils, healing circles. Some of these rely on handed-down legal traditions, but those are more transparently human and challengeable under that tradition.

The Talmud, Judaism’s oral law, recounts a dispute between two schools of legal thought when a voice from heaven intervened to declare: “These and those are the words of the Living God!” It settled nothing, but it sounds more honest and, in its way, more democratic than our Procrustean system. Taught (meaning written) law is tough law, Harold Innis said, just as taught philosophy (like Aristotle) is tough philosophy compared to Plato’s dialogic approach. We forget there are alternatives.

The one thing inherently just in the rule of law is that it applies equally to all (in theory), which is just, or would be, except that, as everyone knows, it doesn’t happen in practice. If you doubt me, spend a day in criminal court. (I think making everyone do so would do more democratic good than compulsory voting.) This season, charges against Conrad Black and others are being flaunted as examples to prove the law does so apply equally, which merely proves they are exceptions meant to obscure the norm.

Since equal treatment is the soul of whatever is worthy in rule of law, it’s an embarrassment to hear the term used to justify the Bush war on terror. Under it, people are held secretly without charge, shunted around the world, relabelled creatively as unlawful combatants and “rendered” to countries for torture. Whatever you call this, it doesn’t resemble rule of law.

Take the dilemma this week of Liberal MP Borys Wrzesnewskyj. I assume he is the same Borys Wrzesnewskyj who built Future Bakery in Toronto, so he clearly has some common sense. What he lacks is the uncommon non-sense required in politics. Under the influence of actual experience on the ground in Lebanon, he said Hezbollah should be removed from Canada’s terrorism list, then had to back down.

Now I certainly think Hezbollah qualifies as terrorist. It has conducted suicide bombings and shelled civilians. But I think Borys Wrzesnewskyj got confused trying to apply the core principle of rule of law: equal treatment. Under it, Israel, too, would qualify for using terror tactics, as Amnesty International, Human Rights Watch and the UN High Commissioner for Human Rights have all more or less said. Its acts include kidnapping legislators, bulldozing homes as collective punishment, destroying power plants, roads and bridges, dropping cluster bombs etc. In general, this conforms to the definition of terror as violence against civilians for political ends.

Israel is far from alone among states. The U.S. was convicted by the World Court of terror against Nicaragua, and ignored the ruling. Most Arab states have terrorized their own populations. But states are routinely and irrationally excluded from the charge. I’d say that, confused by this hypocrisy, Borys Wrzesnewskyj called for the exclusion of Hezbollah from the category, rather than the inclusion of many worthy governmental candidates. On that basis, I think he deserves another shot at the mire of Canadian politics.

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Rick Salutin

Rick Salutin is a Canadian novelist, playwright and critic. He is a strong advocate of left wing causes and writes a regular column in the Toronto Star.