Political Polarization and the Rule of Law

Journal article

This article considers the relationship between the ideal of the rule of law and the problem of political polarization. Political disagreements should be handled by way of a fair political process that culminates in acts of lawmaking and government that display the self-discipline that characterizes the ideal of the rule of law. Political polarization is an excess of partisanship and an absence of the spirit of moderation, which threatens political unity and friendship amongst citizens. The rule of law should be a source of mutual assurance and a common project shared by all citizens, but is too often misunderstood – inflated – and weaponized for political advantage, which makes it much harder for citizens to trust one another. Recent controversy in Britain about international law and the rule of law illustrates the point. The rule of law is distinct from the rule of courts and over-mighty courts fuel political polarization, giving an unfair advantage to one side or the other, and letting slip the discipline that courts should publicly display. The article considers the relationship between constitutional adjudication and political polarization, focusing on the two landmark Brexit judgments in Britain in 2017 and 2019. The article concludes by reflecting on the relationship between constitutional reform and polarization, in which reforms to restore the rule of law may often be warranted but are liable to be misunderstood or blocked by abuse of judicial power.

Authors: Ekins KC, R

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: De Gruyter
• Journal: Law & Ethics of Human Rights
• Volume: 19
• Issue: 2
• Pages: 201-224
• Publication date: 2025-12-03
• DOI: 10.1515/lehr-2025-2009
• EISSN: 1938-2545
• ISSN: 2194-6531
• Language: English
• Keywords: constitutional adjudication; the rule of law; international law; judicial power; political polarization; human rights