to hold its ground against its countless attackers. If its defenders eventually lose this fight, the rule of law will not expire as a supernova, visible throughout the galaxy. Rather, much like the proverbial frog that keeps sitting in a constantly heating pot without realising the imminent danger, its agony will have been so gradual and unremarkable that its eventual demise would come as a surprise to most of us.
In recent years, a number of governments have imposed limits on the freedom of media and expression. They have actively sought to undermine the independence of the judiciary. They have decriminalised certain acts of corruption. They have changed statutes of limitations to suit particular individuals. They have given themselves the rights to freely appoint or dismiss judges to the highest courts in the land, or to dictate court proceedings. They have ordered police forces to investigate certain crimes while ignoring others. And they have used their privileged positions to ensure legal immunity for friends and allies. Clearly, in this ongoing fight, the rule of law is the underdog.
Each of these examples comes from a European country, ranging from European Union (EU) Member States such as Italy, Poland, Romania, and Hungary, to countries aspiring to join the EU such as Serbia, Bosnia and Herzegovina, North Macedonia, and Turkey. Each of them reflects a sad state of affairs, but what do they have in common?
What is the Rule of Law then?
The rule of law, the umbrella term which covers all these instances, deals with social relationships of power. It serves to mitigate unequal relations—between you and me, her and him, us and them. It does so by spelling out the way governments, the state machinery that they command, and any actor powerful enough to exercise power arbitrarily over citizens, ought to behave. And, crucially, it prescribes how conflicts between all of us, citizens, ought to be adjudicated fairly.
Its core aim is to limit as much as possible the arbitrary exercise of power, wherever and by whomever such power may be exercised. Of course, people in charge need to have some discretion to be able to act at all. But with the rule of law, we citizens are able to say when such discretion is legitimate and when it ceases to be.
Needless to say, if you open a legal textbook you will find a list of more formal criteria comprising a definition, most probably presenting the rule of law as the sum of a set of principles: equal treatment before the law, legal standards and certainty, accessible and effective justice, and judicial competence and independence. All true. But we will argue that the rule of law is deeper than this, and that together with its close siblings, democracy and human rights, it is the key to living a dignified life.
In short, the rule of law regulates how power is constrained, in all its forms, to ensure that citizens are truly free from its arbitrary use and abuse.
Isn’t this the most precious human invention of all time?
A simple magic trick
If that is so, how did we end up where we are today, with the rule of law being threatened in so many ways? Well, it might have had something to do with the fact that we, as citizens, often didn’t care for the rule of law. We generally don’t really understand what this cumbersome term actually means and rarely are we able to express why we truly need it. Granted, it seems like a difficult subject that does not really concern most of us directly. A bit like astrophysics. As long as there’s no asteroid heading towards earth, we are quite happy to leave the whole “space business” to scientists and let them figure it out.
With the rule of law, it’s not the scientists, but the “experts”, legal professionals or bureaucrats to whom we usually defer to act as “guardians.” By no means are these experts stupid—after all, they’re experts! And while some may doubt the need for experts in this new populist age of ours, experts tend to know their stuff. But they also tend to follow a particular way of thinking and speaking. They use certain “professional standards” and “benchmarks” to talk about and assess the state of the rule of law in a particular context. For the most part, they see the rule of law as a set of rules, regulations, and procedures. Accordingly, they design safeguards to uphold these different sets.
This view is not wrong, of course. But those who attack the rule of law know how the experts operate, so they have learned to circumvent these usual safeguards with sneaky techniques. They perform somewhat of a magic trick, a simple misdirection: while you look at the deck of cards in one hand, the magician sneaks your card into her pocket with the other. The instruments used by legal professionals to assess the rule of law are designed to look at certain aspects, not at others, and certainly not at the interplay between all the tiny elements that, in their totality, make the rule of law what it is. By looking at the different items in their sets of rules, regulations, and procedures, experts often fail to really capture what is at stake in societies that are at risk of losing the rule of law in a gradual and composite manner. Because they are unable to see the forest for the trees, they tend to lull us into thinking that all’s fine—just like the magician convinces us that our card is still in the deck up until the last moment, when it is revealed from her pocket.
By following their sometimes narrow standards and using their regular benchmarks to assess legal situations in particular contexts, the experts as guardians have certainly contributed, even if unwittingly, to putting the very same ideal they wished to promote in danger. In this unwitting erosion of the rule of law, they have been helped by bureaucrats who have never been known for looking outside their professional box and coming up with innovative solutions for addressing emerging problems. Granted, this is a gross simplification and probably a mischaracterisation of many eager and engaged bureaucrats. But if we are honest, they do tend to follow Plato’s example of being obsessed with forms, you know these forms that exist beyond our perceived everyday reality as abstract unchanging concepts.
But those professional lawyers, judges, and bureaucrats are not the only, or even the main, protagonists to be blamed for the erosion of the rule of law.
And neither are the politicians. Yes, they are the true magicians and know a thing or two about misdirection; at times, “inadvertently” misleading claims are the reasons they are in their jobs in the first place.
Politicians certainly share part of the blame in our tragic story. They tend to subvert the rule of law by taking advantage of opportunities that open up, especially if those allow them to consolidate, or even increase their power. They are goal-oriented human beings, so they naturally seek to exploit all the opportunities that present themselves. Modern-day sagas such as Game of Thrones or House of Cards vividly remind us that any kind of rules and norms are really hard to maintain once pure power is at stake—or when the other side has dragons.
Don’t get us wrong: professionals, bureaucrats, and politicians are not innocent in this story, by no means! We in no way want to defend their action, or even sometimes inaction, or absolve them of responsibility—something we are not in a position to do anyway. Quite to the contrary: legal professionals, politicians and bureaucrats are also guilty for the erosion of the rule of law and we shall vigorously criticise them.
But there is also somebody else we blame: Time Magazine’s Person of the Year 2006! In other words, us. “Us”, the citizens as a collective, and therefore each one of us as individuals.
To be sure, Time Magazine awarded its prestigious prize in recognition of our contribution to the digital age. But while we shaped the early years of the digital revolution, and continue to share and provide content throughout social media platforms, most of us have so far failed to step up for the rule of law. Except for a few courageous and stubborn individuals and groups around the world, we, the great silent majority of citizens and voters, share in the responsibility.
And we do so for a simple reason: The rule
