Trust on Trial: The Eroding Legitimacy of Law in a Polarised Age

At the heart of any functioning democracy lies a tacit promise: that those who wield power will do so within legal and moral bounds, and that those bounds will be fairly enforced, even against the powerful. This is what distinguishes rule of law from the mere rule by law. 

As Justice Neil Gorsuch of the US Supreme Court once noted, the rule of law is that ‘remarkable fact’ that a lone citizen may bring a claim against the most powerful institutions in the world and still be heard on equal terms. But this vision, for all its elegance, is not self-executing. It depends on a public belief that the courts are neutral, that governments can be held accountable, and that justice is not an ornament but a safeguard. It is this belief – quiet, often unconscious, but utterly foundation – that is now under siege.

The crisis, then, is not one of legal architecture, but of collective belief. It is not that courts have suddenly abandoned their principles, nor that statutes have been stripped of their force. Rather, it is that a growing segment of the public no longer sees these mechanisms as impartial, nor the outcomes as just. The age of polarization has recast the judiciary – not as a deliberative guardian of fairness, but as a political actor cloaked in robes. When each judgement is filtered through partisan lenses, when outcomes are pre-emptively dismissed as the product of ideology rather than principle, even the most meticulously reasoned decision begins to look suspect. This erosion of confidence is neither abrupt nor evenly felt. It gathers slowly, often under the weight of emotionally charged cases – those involving immigration, protest, or the rights of marginalised groups.

Consider the United Kingdom. 

The growing unease around judicial neutrality is not simply a result of controversial rulings but of how political actors have chosen to frame them. 

In the aftermath of the UKSC’s decision in R (on the application of AAA and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent) [2023] UKSC 42 on the Illegal Migration Act and its restrictions on asylum appeals, for instance, ministers did not engage with the substance of the Court’s reasoning, which raised serious concerns about access to justice and human rights obligations. Instead, they cast the judiciary as an obstacle to the democratic will – an unelected elite frustrating popular mandate. 

Here, the rule of law is subtly reimagined: no longer a constraint on power, but an inconvenience to be circumvented. When Parliament passes legislation that explicitly limits the scope of judicial review or instructs courts to interpret facts in line with government declarations – as it did by designating Rwanda a ‘safe’ country by statute, it transforms the law into an extension of political will. The principle of legal accountability, once central to the British constitutional tradition, begins to erode under the weight of expedience.

This pattern is not confined to the UK. Across liberal democracies, there is a growing tendency to interpret the rule of law not as a check on power, but as a tool to be wielded or discarded depending on partisan interests.

A particularly stark example came in recently, when the US Supreme Court issued a temporary freeze on the deportation of Venezuelan detainees. Rather than acknowledging the Court’s constitutional role in reviewing the legality of Executive Action, President Trump publicly condemned the decision, framing it as a politically motivated obstruction of his agenda. More troubling, he went on to say that the United States ‘cannot give everyone a trial’, a direct rejection of the constitutional principle of due process and the ancient legal guarantee of habeas corpus.

When such sentiments come from the highest office in the land, they do more than cast doubt on a particular decision; they degrade the very reason why people obey the law in the first place. Legal philosophers have long understood that compliance with the law is not achieved solely through coercion or punishment.

As Yale Professor of psychology and law Tom R Tyler says in his book Why People Obey the Law, people obey the law because they perceive it as legitimate – because they believe that the legal system is fair, that rules are applied impartially, and that justice is accessible. This belief, however, is fragile. It is sustained not just by the text of statutes or the rituals of courtrooms, but by the sense that the system reflects and respects a shared moral order.

What happens, then, when that belief breaks down? When courts are portrayed as political actors, when judges are attacked for interpreting rather than executing the will of the executive, and when legal protections are dismissed as luxuries rather than sights – trust in the system dissolves. People no longer comply out of respect but resist out of suspicion. They do not see the law as an impartial standard, but as a weapon wielded by whichever party holds power. This is the heart of modern polarization: the loss of a shared framework for legitimacy. When each side believes the system is rigged against them, the rule of law becomes not a neutral ground, but a battlefield. In an era where information spreads instantly and often without scrutiny, politicians help shape public opinion, acting as intermediaries between the legal system and the public. How they speak about the law profoundly affects whether it is seen as fair—or fatally compromised.

The greatest challenges to the rule of law in the next twenty years, then, will stem from the corrosion of public trust in legal institutions. In an age of polarisation and misinformation, where narrative often eclipses nuance, the survival of the rule of law will hinge on whether the public can still believe in its impartiality. The real battle is not in courtrooms, but in the public square – in the stories we tell about the law, and the faith we place in its fairness. Without that belief, the rule of law ceases to function as a safeguard of liberty and becomes instead a contested fiction – respected only when convenient and abandoned when inconvenient. Rebuilding that faith is not merely a legal task; it is a democratic imperative.