A Citizen’s Guide to the Rule of Law. Kalypso Nicolaidis
the rule of law are either absent, or they depend on what the writer wanted to achieve or the era or tradition in which s/he writes.6 Debates among legal theorists abound so that one may be forgiven to think that all these smart people have actually no idea what they are talking about.7 After all, if you cannot even agree on what your subject is, how can you determine whether it’s there or not?
Of course, all these people know very well what they are talking about. They are smart and have done some serious thinking. But they sometimes lack the ability to make their thoughts clear to the rest of us. They have a problem of communication rather than one of understanding.
The challenge in defining the larger principle of the rule of law is quite straight-forward; actually, there is one fundamental point upon which all these lawyers, philosophers, sociologists, and political scientist can agree:
The rule of law is a “rule about the importance and priority of legal rules” for a particular society.
Sounds relatively straightforward: The rule of law is simply the command to obey the laws.
But that can’t be all there is. The rule of law concerns itself with the law—but is at the same time something above the law? This definition indeed “carries a whiff of paradox, a circular sense of justification”.8 There seems to be no distinction between the love part, and the everyday part of the rule of law. Yet we need those two aspects of the rule of law to somehow come together in a definition, if we wish to make the concept broadly understood. But how?
Rule by Law and Rule of Law
When we deal with the law, we usually find two prevailing schools of thought. There are those who say that the law is what is written in the law books. We call these scholars “legal positivists”. Their credo is simple: just follow the rules in the book.
But what if the rules contradict our deep sense of morality? What, for example, if the law in a country allows the government to imprison journalists for their critical reporting? Or what if the law allows a king to take a subject’s first-born so that it may become part of the ruler’s court? Legal positivists would have no problem with that, as long as proper procedures were followed.
This is where intuition helps after all. We intuitively know that this cannot be right. We know that, in such situations, the rule of law should be about protecting the journalist from governmental overreach and leaving the child in the caring hands of its family? Surely, the rule of law must be more than the positivist “rule by law”!
Come to think of it, our readers living in one of the future EU Member States might know the distinction we seek to explain better than us. In fact, many languages have recognised it, even if, unfortunately, English is not one of them. Maybe that’s something Shakespeare, after adding so many words to the English language, just didn’t have time to get around to do. It’s a pity, really.
In German or the languages of Slavic origin there is a semantic difference between the law in the books (in German Gesetz, or a variation of zakon in the Slavic languages) and the law as a principle of justice (Recht, or pravo). In the languages of the former Yugoslav space, for example, the translation of “rule of law” is usually given not as “vladavina zakona” (as in “rule by law”), but as “vladavina prava”, with “pravo” being semantically linked to the concept of justice (“pravda”) and literally meaning “right”.
To capture what the rule of law is, then, we need to move beyond the mere notion of a positivist, rule-by-law description and look at the norms at its very core. But what norms could that be? As so often in life, we need to find the love, in traditional and less traditional forms.
Examining with critical eyes the EU’s accession process can be helpful here, given that the rule of law does not figure alone in this picture. Ever since the spelling out of the criteria for membership in 1993, the EU has treated the rule of law as part of a triptych alongside democracy and human rights. Even if these dimensions can be treated separately in theory, we generally agree that it’s best to see the rule of law, democracy, and human rights as siblings when it comes to how they live in the real world. Different, but somehow of the same ilk. Treating them as distinct appears odd, even if, like any sibling, each one of them has of course a particular character.
Apart from being in line with many intellectual traditions, acknowledging that these three concepts are connected has a further benefit: it allows for assessing countries on a spectrum on which they don’t have to progress in lock-step. A country can advance on one, stay stagnant on another, and even deteriorate on the third.
Figure 1 How the Rule of Law, Human Rights, and Democracy intersect
This has in fact really happened. In the past decade, the countries of the Western Balkans have made significant progress on their path towards EU accession, yet they have also become more authoritarian and less democratic.9 And in all the accession countries, the human rights situation is far from perfect.10
We think that the best way of thinking of the rule of law, democracy, and human rights is to see them as separate, but interwoven elements of a family picture that we tend to recognise as “liberal democracy” (see Figure 1).
“Liberal democracy”—beyond the buzzword
This brings us to another contemporary buzzword: what exactly is “liberal democracy”? And where does it come into our rule of law story?
Fighting emperor Palpatine
Liberalism is a big term, but actually a quite simple idea: it states that the legitimacy of any social or political order rests with the individual. It all starts with each and every one of us. By virtue of being human, each one of us is endowed with a set of rights starting with the right to live and take our own fate into our own hands.
Of course, this creates problems. If we have a disagreement and I decide to take matters into my own hands, you might not like it. So, all of us together, therefore decide to delegate certain of our rights to a political authority, and so the state is formed.
We task the state with regulating certain areas of our daily lives, mostly guaranteeing our security. Yet there are certain rights we cannot cede—the US Declaration of Independence calls them “unalienable rights” and specifically mentions “life, liberty, and the pursuit of happiness”. Others might want to add “property” in this mix, but the larger point stands: there are guaranteed rights and liberties that cannot be delegated to a state and no one has the authority infringe upon them.
But how can we ensure far-reaching rights for everybody in a society with more than one individual? Some compromise is needed. Liberals believe that the best form of government ensures that you have to give up as few liberties as necessary to secure social order and security. John Stuart Mill, the famous British philosopher, once argued that “the only purpose for which power can be rightfully exercised over any member of a civilized community against his will, is to prevent harm to others”.11
We may think of it this way: My neighbour’s right to swing his fist ends where my face begins. Here, the state can intervene and limit my neighbour’s rights. But as John Locke—another of those British philosophers that have spent a lot of time thinking about such questions—reminds us, should the state exert its power too far and breach