The populist war on law

New European

06-05-2025

On April 14, Nayib Bukele, the Salvadoran president, sat beside Donald Trump, and explained how his ferociously repressive regime had cracked down on crime: 'Sometimes they say that we imprisoned thousands. I like to say that we actually liberated millions'.
Let us call it the Bukele Doctrine. It was unveiled in the Oval Office last month, in specific reference to a profoundly controversial arrangement between the US and El Salvador. But, in this hour of global realignment and democratic fragility, it should act as a warning to all free societies.
This framing fascinated the US president. 'It's very good,' he said. 'Who gave him that line? Do you think I can use that?' Most definitely, was Bukele's reply.
'You have 350 million people to liberate,' he said. 'But to liberate 350 million people, you have to imprison some. That's the way it works, right? You cannot just free the criminals and think crimes are going to go down magically. You have to imprison them, so you can liberate 350 million Americans that are asking for the end of crime and the end of terrorists.'
The focus of the media questions that followed was – quite correctly – the deportation without due process of at least 261 Venezuelan and Salvadoran detainees to Bukele's notorious Centro de Confinamiento del Terrorismo (CECOT) in Tecoluca; the US courts' rulings that the Trump administration had acted unlawfully; and, in particular, the case of Kilmar Abrego Garcia, the 29-year-old asylum seeker, who had been living in Maryland for 13 years, sent back to El Salvador after what the US government has admitted was an 'administrative error'.
In spite of this admission, Bukele and Trump both poured scorn on the idea that he should simply be flown back to America to be reunited with his wife and three children. In an ABC News interview last week, the US president said that 'I could' pick up the phone and insist that Abrego Garcia be returned – but had no intention of doing so.
This shameless indifference to the fate of a man unlawfully sent to a hellhole in another country is a case study of something broad, radical and historically dangerous. What the Salvadoran autocrat proposed to Trump was nothing less than a savage overhaul of the criminal justice system, in which the demands of the majority – as interpreted by authoritarian leaders – sweep aside due process, habeas corpus, free speech and the very foundations of the liberal system. His message to his American patron was: don't sweat the small stuff, such as the rights of the individual, but instead prioritise remorselessly the most visceral demands of the many.
Read more: The choreography of fascism
It is hard to overstate how transformative Bukele's glib formulation truly is. For centuries, the legal systems of free societies have aspired to respect what is known as 'Blackstone's ratio' – as precious a principle as the 'Golden Rule' that we treat others as we would like to be treated.
In his Commentaries on the Laws of England (1765-9), the great English jurist Sir William Blackstone declared that 'the law holds that it is better that ten guilty persons escape, than that one innocent suffer'. In 1785, Benjamin Franklin went further: 'it is better 100 guilty Persons should escape, than that one innocent Person should suffer'.
This principle – that false convictions are worse than false acquittals – is at the very heart of western jurisprudence. Yet it has not gone unchallenged. The utilitarian philosopher Jeremy Bentham was not impressed by 'those sentimental exaggerations which tend to give crime impunity, under the pretext of insuring the safety of innocence'.
More bluntly, Otto von Bismarck is believed to have said that 'it is better that ten innocent men suffer than one guilty man escape'. Felix Dzerzhinsky, the founder of the Soviet secret police, was even more abrasive: 'Better to execute ten innocent men than to leave one guilty man alive'.
What Bukele proposed in the Oval Office was a hypermodern, populist version of this counter-principle. His message, delivered with chilling bonhomie, was that the unjustified incarceration of a few was a price well worth paying for the safety of the many. As Lenin never actually said: 'you can't make an omelette without breaking eggs' (that dismal honour goes to Walter Duranty, longtime Moscow bureau chief for the New York Times, and apologist for Stalin).
There is alarming evidence, too, that fear of crime and disorder has eroded popular support for Blackstone's ratio. In a survey of more than 12,000 Americans in 2023, legal scholars Gregory Mitchell and Brandon Garrett found that most were now unwilling to err on the side of acquitting the guilty to avoid convicting the innocent; and that a sizeable minority thought that false acquittals were worse than false convictions.
As I wrote in January last year: 'Trump's 2024 pitch has its roots in a primitive notion of order and vengeance that has nothing to do with the rule of law'. And now he is making good on that pitch.
In an interview with the Atlantic to mark his first 100 days back in office, he was asked about the deportations without due process. 'What if there's a mistake?' said the magazine's Michael Scherer. 'You might get the wrong person, right?' Trump replied: 'Let me tell you that nothing will ever be perfect in this world.' Just reflect for a moment on what that throwaway remark actually implies.
In a separate interview with Time magazine, the president was asked whether he agreed with his predecessor John Adams, who said that the American republic was 'a government of laws, not of men'. For almost 250 years, this principle has been the nation's secular creed. But – extraordinarily – Trump's response was equivocal. 'I wouldn't agree with it 100 per cent,' he said. 'We are a government where men are involved in the process of law, and ideally, you're going to have honest men like me.'
Finally, in an interview with NBC's Meet the Press aired on Sunday, the president was asked if he believed that every person on US soil was entitled to due process. 'I don't know,' he replied. 'I'm not, I'm not a lawyer. I don't know.'
Didn't the Fifth Amendment explicitly enshrine this right? 'I don't know,' Trump said again. 'It seems – it might say that, but if you're talking about that, then we'd have to have a million, or two million, or three million trials.'
Thus, in a series of piecemeal replies, has the president essentially announced his inclination to steer the US away from its long-established legal system towards an authoritarianism in which one man speaks for the people, and individual rights are subordinated to whatever he believes to be in the majority's interest. He is tearing up what James Madison called the 'parchment barriers' of the constitution.
It is bad enough that the most powerful, wealthiest and heavily armed nation in history should be heading in this direction. But it would be quite wrong – unforgivably delusional, in fact – to imagine that this trend is confined to the US.
All over the free world, an argument is raging about the viability of liberal democracy and its institutions. Are they still fit for purpose in the second quarter of the 21st century? Might some form of authoritarianism, though it comes at a price, be a better delivery system for the needs of contemporary society?
In the past fortnight, Trump's unpopularity outside the US has helped progressive parties triumph in both Canada and Australia. But those (very welcome) victories should not be a cause for complacency elsewhere. The belief that the social contract of the liberal democratic era is frayed, possibly beyond repair, is now deeply and globally entrenched.
In January, a poll for Channel 4 found that 52% of Gen Z (defined in this survey as aged between 13 and 27) believe that the UK would be a better place if a 'strong leader was in charge who did not have to bother with parliament and elections' and that 33% think that life would be better if the 'army was in charge'.
This is odd only if you forget how dramatically restricted the opportunities of the young to housing, a secure job and an affordable family life now are. As they see doors slamming all around them, is it any wonder that their thoughts are turning to different ways of organising society?
On the one hand, many of them lionise Luigi Mangione, the 26-year-old charged with the murder in December of UnitedHealthcare CEO Brian Thompson; on the other, they are receptive to the prospect of a dictatorial leader who promises a better future. Vigilantism and authoritarianism: two faces of the same generational anger and dissatisfaction.
Add to the mix the almost pathological impatience of our age. In the past four decades, citizenship and consumerism have become hopelessly confused. Successive governments have encouraged voters to judge the public sector as they would private businesses, and to respond as 'customers' rather than patients, students and passengers.
At the same time, fiscal conservatism has made it structurally impossible for public services to meet such expectations. And, in the age of Amazon, Uber and Deliveroo, those expectations are soaring.
Trapped in the digital moment, the permanent rush hour, we think increasingly of instant gratification rather than long-term objectives. If it is possible to get groceries delivered in 10 minutes using your phone, why is it next to impossible to get an appointment with your GP? Why is the building of affordable housing so pathetically slow? Why is at least £66bn being spent on a high-speed rail link, the main section of which has already been ditched? Why has the debate on Heathrow's third runway dragged on for almost 20 years?
The gap between government delivery and public impatience is now perilously wide. The consequence in this country has been the transformation of all national electoral events into protest votes. Think of the past nine years: the 2016 Brexit referendum (we're fed up with everything); the 2017 general election (the Tories don't deserve a majority any more); 2019 (get Brexit done, and get rid of Jeremy Corbyn); 2024 (for God's sake, kick out the Tories).
All of these contests were consequential; but none of them truly reflected popular confidence in statecraft, or its ability to deliver change. Last Thursday, less than 10 months after the voters gave Keir Starmer's Labour a 174-seat majority, they signalled their grave dissatisfaction with the government (and the Conservatives) by rewarding a populist nationalist party that barely existed a year ago with 677 council seats, two mayoralties and a parliamentary by-election victory.
On the BBC's Today programme on Friday morning, Nigel Farage said that 'every county needs a DOGE' – a reference to Elon Musk's Department of Government Efficiency. In a speech on the same day, he advised council employees working on diversity or climate change strategies to seek 'alternative careers very, very quickly'.
As in the US, the true objective is not efficiency at all, but the public spectacle of 'wokery' under attack and the caricature of all work on behalf of minorities as an affront to the majority. Though he has expressed admiration for Vladimir Putin in the past, it is too early to say whether the Reform UK leader would be an authoritarian prime minister.
But he has said that the first thing he would do in No 10 is to leave the European Convention on Human Rights – as many Tories also long to do. It is in this respect, above all others, that the populist right in the UK is also edging towards the Bukele Doctrine.
Traditionally, a liberal society defines itself by how it treats its most vulnerable members and by the due process that it extends even to its worst offenders. But I wonder how safe that tradition truly is in 2025.
I am relieved, for example, that the Conservatives' appalling Rwanda asylum plan was thwarted by the courts and has now been cancelled (having already cost the taxpayer more than £700m). But how long before the populist right in this country looks enviously at the Salvadoran experiment and concludes that the Rwanda scheme failed because it wasn't tough enough and that we need a more explicitly nasty strategy, free from the constraints of the ECHR?
When Reform's Andrea Jenkyns, the first elected mayor of Greater Lincolnshire, celebrated her victory last week, she promised an end to 'soft touch Britain' and declared: 'I say no to putting people in hotels. Tents are good enough for France, they should be good enough for here in Britain'. In other words, treat the wretched few as badly as is necessary to placate the irritated majority.
At that moment, a thread twitched across the Atlantic, as the Bukele Doctrine found a new home at Grimsby Town Hall. It is a clear and present danger to liberalism, individual rights and basic decency. In the dazzling smile of a Salvadoran dictator can be seen a terrible version of the future. Are progressives up to the task of averting it?