In March of this year the European Commission published a report on strengthening the Rule of Law. A noble effort and one worthy of support but with the Rule of Law principle continuing to defy definition EU Perspectives investigates whether the principle, so crucial to the EU and so representative of its values, is capable of being reduced to a simple concept or whether it will forever require pages of discourse before its exact meaning is understood?
The Rule of Law is fundamental to the EU. It defines the very essence of what the EU represents as well being an expression of how the EU functions. The Rule of Law serves two purposes; it acts as the social contract between private citizen and State and it is the oil that propels the wheels of commerce. The EU stakes its reputation on being an organisation that upholds the Rule of Law. Membership to the EU is dependant on a strict application of the Rule of Law and all countries seeking closer ties with the EU must agree to apply the Rule of Law.
It may, therefore, come as a surprise to some readers that the Rule of Law remains largely undefined. Although everyone recognises, instinctively, what is meant by the term “A Rule of Law” it can mean different things to different people. To human rights lawyers it represents the social contract between the State and its citizen. To economists it is the key to greater prosperity. To the State it represents the boundaries in which individuals inter-act.
The concept of Lex, Rex can be traced back to ancient antiquity. Throughout the centuries free-thinkers, from Montesquieu, to Jefferson have sought ways in which to express, in words, how to challenge the right of absolute rulers to rule absolutely. Yet, it was not until the nineteenth century that the term “The Rule of Law” first appeared having been coined by the Oxford law professor, A.V. Dicey in his book “An Introduction to the study of the law of the Constitution”.
Some simple definitions include Dr Tom Fuller’s, “Be you never so high, the Law is above you”, John Locke’s, “Wherever law ends tyranny begins” or indeed Thomas Pain’s “…in America THE LAW IS KING.”
All simple, sublime and easily understood.
Yet they all lack one important qualifier. What applies to liberal, western democracies can equally apply to despots ruling absolutely. Hitler, after all, had a rule of law. As did Stalin. Indeed, every dictator who ruled/rules absolutely has or had a rule of law. Hitler and Stalin’s rule of law ticked-off many (if not all) of the right boxes in that their rule of law was predictable, it was efficient, it was effective and justice was seen to be done.
With the result that many modern autocrats claim that they are within their rights and merely acting under the rule of law. By way of example, protesters are arrested on the grounds that they are disrupting the peace, out-spoken opponents are arrested because a convincing case has been established proving tax evasion and/or fraud, a social network is blocked because it distributes terrorist posts.
Many serious, modern, thinkers on the Rule of Law have grappled with this very paradox for some time, namely how to distinguish a western liberal approach to the Rule of Law with that of autocrats. It is this conundrum which ensures that the Rule of Law defies simple definition. Many resort to talking about the difference between a substantive and formalist Rule of Law or between a thin rule and a thick rule. Indeed it took Dicey himself, having coined the term, at least three Chapters to set out what exactly he meant by it.
Does this lack of a simple definition really matter? If everyone understands what the Rule of Law stands for anyway (i.e democracy, human rights, equality before the law) what’s the point of spending further thought on it? The problem with the lack of a simple definition is that the principle becomes hard for States, that do uphold the Rule of Law, to distinguish their regimes from regimes that blatantly do not, particularly if there is a war of words at play and propaganda is used to confuse and muddy people’s minds.
Which is why it is important to establish, definitively, what it means to uphold the Rule of Law. In many respects the Rule of Law can be defined by what it is not rather than what it is. The Rule of Law is the diametric opposite of the alternative – a Rule of Fear.
Based on this assertion it is proposed that the real litmus test to establish definitively whether a regime is upholding the Rule of Law or not is to ask this simple questions – how threatened by the State do private citizens feel? In the absence of fear citizens are being governed by the Rule of Law. In the presence of fear citizens are being governed by a Rule of Fear.
The Rule of Law – the absence of intimidation, threats and violence
In cases where the Rule of Law is upheld private citizens will feel neither intimidated nor threatened by the State, by the political process or by the judicial system. Disinterested, probably. Bored, possibly. Apathetic, mostly. Engaged, at times. Active on matters of interest. Outspoken on issues of great concern. Never, ever threatened or intimidated.
When the EU talks about freedom under the Rule of Law this is exactly what it refers to: it’s citizens are free to: – vote, speak, oppose, protest, believe, buy, bargain, trade, inter-act, form relationships – without fear that at some point either the State or a person of violence will threaten their freedom, their physical integrity, their lives or their property. In cases where this does arise, and arise is does, an independent, well-funded judicial system will seek to redress the injustice. The sentences passed-down by the judges are respected by the State and individuals alike.
With freedom from fear society as a whole, and the State in particular, is able to establish the institutions and procedures that uphold the Rule of Law: free, fair and regular democratic elections, equality before the law, a respect for human rights and a judiciary independent from State interference. With such conditions in place society as a whole prospers as citizens feel confident enough to enter into long-term contractual relationships both commercial and private.
A Rule of Fear – the presence of intimidation, threats and fear
States that govern through a Rule of Fear will rely on tools that threaten and intimidate citizens engaged in the political process and the judicial system. Under an autocracy, kleptocracy or dictatorship the tool that oils the social contract is one of violence to the person, to those closest to the person or to a person’s property. In such an environment it is impossible to create the institutions and procedures needed for free, fair, pluralistic and regular elections, an independent judiciary or an application of human rights legislation. The result of which is corruption and inequality before the law.
Fear and intimidation can take various forms – from mild to extreme. Mild examples may include, for example, the threat of closing down a popular social media site if users criticise the regimes policies, the threat of having private data aired in public, the threat of losing one’s job or business; the threat of house-arrest; the threat of violence on election day; the threat of damage to private property, the threat of imprisonment…
The final and most extreme stage under a Rule of Fear is what the French, at the time of the Revolution, dubbed “the terror”. This stage is characterised by acts of torture, executions, bodies being dumped in open wood-lands and arbitrary, show-trials in which even those closest to the autocrat are publicly discredited and executed. Any one of these threats – from mild to extreme – are excellent at making individuals stop and think before they express an opinion. How important is an individual opinion if life, limb, freedom and property are at stake? Not much – most would prefer to keep their head down and cow before the autocrat rather than risk violence to themselves or those closest to them.
For the autocrat fear and the use of violence is an excellent – indeed the only tool, with which to ensure continued access to power and wealth. For the individual it’s a lousy deal but one they are prepared to put up with if it means freedom from harassment, imprisonment or violence.
States that apply the Rule by Fear stifle individual innovation and entrepreneurship. Individuals become anaethetised by fear and numb to expressing their individuality. Under a Rule of Fear economies tend to stagnate, the overall standard of living declines whilst wealth ends up concentrated in the men and women of violence.
All very good reasons why the EU should continue to strive for a rigorous application of the Rule of Law, to defend the Rule of Law and where possible to persuade regimes outside of the EU to uphold the Rule of Law. The break-down of a Rule of Law within the EU would be critical in that it would undermine the very foundation on which the edifice is built hence the need to ensure compliance of this fundamental principle both within the EU and outside of the EU.
This task will undoubtedly be made simpler if one is able to distinguish definitively between those regimes (both within the EU and without) that uphold the Rule of Law and those that rely on a Rule of Fear to prop-up tyrannical, arbitrary and autocratic regimes.