A Citizen’s Guide to the Rule of Law. Kalypso Nicolaidis
It’s a fact.3 Many of the former or current accession countries still struggle with serious rule of law challenges. The judiciaries are not independent and don’t deliver swift and fair justice. The policemen are corrupt, not to speak of the politicians who exploit state resources for their own benefit.4 In general, more than two decades after the EU’s rule of law engagement in the region began, these countries are quite far away from the ideal the EU has been promoting in the guise of “liberal democratic regimes”, the ultimate goal of accession.
In other words: the EU’s rule of law promotion has a serious problem. It lacks efficacy and sustainability, due in part to flawed understandings among at least some of those who are expected to promote it.
Yet, without sounding too grand, it is fair to say that the rule of law is especially crucial in this region whose stability depends on it. But why?
Establishing legitimacy
With the exception of Turkey, the accession process deals with post-communist and post-war countries, which have a particular legacy to confront. In previous systems, authority came from above, from either the party or the warlord, and it was allegedly dispensed for the good of some imagined community, such as the “nation” or the “working class.” In a democracy, however, political authority comes from below, from the people, or rather all the individuals constituting that society. It’s the individuals that provide the democratic system with what we call legitimacy.
Legitimacy is a big word, we know, and philosophers can discuss it forever—and they have. But it actually means something quite simple: a political system is described as “legitimate” when we, the citizens, think that there is an authority that has the right to set the rules that we have the obligation to obey. That’s basically it. For a system to be truly legitimate, it is important that citizens are convinced that they have to follow the rules regardless of the latter’s actual content, just because they respect the authority that made that rule.5
But even when legitimate, authority requires checks and balances and this is what the rule of law is all about. It constrains the exercise of power over each and every one of us and by doing so, it
When do you say ‘yes’ to authority?
Maybe you had a say in how it was established—you elected your representatives in parliament who voted on the rule, for example the law to wear seatbelts. Or you respect the process by which the rule was adopted—everyone had a say, experts were consulted, the vote was free and fair, and so on. Or you agree with the outcomes the rule produces—for example, fewer deaths in car accidents, less crimes in the streets, or food that is safe to eat, and so on. Or all three of these reasons. So, if these conditions are fulfilled, we can say a state or political system is legitimate. If not, things can get ugly.
contributes to the legitimacy of a system. So, ultimately, it’s one of the corner stones for peace and stability in any society.
Breaches of the rule of law seem much more dramatic in states that are in the process of becoming democracies. It is something quite different if one’s rights are disregarded in a liberal society that increasingly becomes illiberal, or whether this happens in a transitioning society that so far never enjoyed the full range of liberal rights. It is in the latter case that the rule of law develops its full meaning and it is here that the “deep concept” of the rule of law we wish to promote must stand its ground. Don’t worry, we shall come back to the “deep concept” in due course.
However much you are convinced that the rule of law matters, it won’t have escaped your attention that we have performed a magic trick: we never said what precisely the rule of law is. Instead, we just offered some hints and fragments of a larger concept. We’ve created somewhat of an illusion for us all to believe in. It’s now time to give the trick away, even if this means we can never become members of London’s Magic Circle.
What the Rule of Law is and why it matters
Everyone should want to live in a society blessed with the rule of law.
Where you stand free from the tyranny of fear: you may not be treated arbitrarily neither by the state nor the powerful.
Where you stand free of the tyranny of the few: no king, minister, nor Mafioso is above the law.
And where you stand free of the tyranny of the majority: no minority group may be persecuted with impunity.
The rule of law offers you safety, security, and may we say dignity, like a comfortable Iron Man suit protecting you at all times and against all enemies.
It seems intuitively obvious that the rule of law is a good thing to have. Or would you prefer to subject yourself to arbitrary rule by a monarch, government, or mafia godfather? If so, would you not deny yourself the very dignity that makes you human?
We know there are people who find subjugation quite exciting, sometimes even arousing. But even for them, the eventual relief is an integral part of the fascination. Few would freely submit themselves forever to somebody, and even fewer would advocate servitude as a guiding organising principle for modern societies.
It was the German philosopher Immanuel Kant who said that human beings should never be treated as means, for example for someone else’s pleasure. They have an inherent moral value that ought to be respected and protected. Of course, we don’t need Kant to tell us what we intuitively know already: that one should always treat other human beings in a way that one wants to be treated oneself in that particular situation. If there is such a thing as a universal law of humanity, a golden rule, this edict probably lies at its core.
But while generally a good guide in life, intuition has its limits. There are, after all, situations where there is no universal consensus about what the intuitively right thing to do would be. Or is there an intuitively correct answer to the riddle US comedian Stephan Colbert likes to put to his guests, namely whether they would prefer fighting a horse-sized duck over a hundred duck-sized horses?
Then there are events in nature that are true even if they defy our common intuition. A quantum particle can be at two places at once, and a group of people might choose to annihilate another out of fear. Intuition is a predictor neither of truth, nor of morality.
Therefore, saying that we intuitively know what the rule of law is, or at least ought to be, and why it matters, does not really bring us very far in our quest to distil its deeper meaning. And distil it we must, before we can move to the task of actually saving it.
Going deep: Love and everyday gestures
To know what we mean by the rule of law as a “deep concept”, we need to start by treating the rule of law as if it were a loving relationship between two people. There is the deep love that profoundly binds them together, and then there are the everyday gestures through which this love is expressed.
With the rule of law, there’s the larger principle, the core. We need to know what norms constitute this core and what functions they perform. That’s the love part. Once we have clarity on that, we need to figure out how the larger principle is to be applied in social and political orders. We need to know what the core means concretely for living together. That’s the everyday part.
So, let us start with the first task, thinking about the larger principle, the love. Here, a problem occurs that is very central to our larger argument in this book and makes this next section somewhat complicated. Bear with us, please.
We may approach the rule of law from different viewpoints. Aspects of it are philosophical, others are sociological, political, or legal. Trying precisely to define what we are talking about is thus difficult, as it varies slightly from one perspective to the other. Indeed, looking