A Citizen’s Guide to the Rule of Law
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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 Mill’s “no harm principle”, resistance against the state becomes legitimate.12 So, we, the citizen, always retain the final authority over the system.
Seems like a sweet deal, doesn’t it? Something one could easily rally around, no?
Today, certainly. But this was actually quite a revolutionary thought when Locke first made it. Kings were still ruling much of the world—and they weren’t just monarchs without any real powers, like Queen Elizabeth II is today. They were true autocratic rulers of their dominions, like Emperor Palpatine from Star Wars. Their supreme rights, status, and privileges were beyond questioning, as their authority came directly from God. Or at least that’s what they wanted everybody to believe.
So, here came the Liberals who said: “Well, actually, God (or nature) gave us some rights, too. You are only king if we agree to your authority. And even then, we still have some rights you are not to touch. Otherwise, we can get rid of you!” This must have seemed a preposterous suggestion to kings, queens and emperors alike. While they could not stem the tide of liberalism entirely, they certainly sought to minimise the damage to their absolute authority. Even in England where the Magna Carta—one of the first codifications of a proto-system for the rule of law—was drafted in the 12th century to protect individual liberty, this concerned the rights of the barons rather than ordinary people.
Unsurprisingly, the simple idea of protecting individual rights and freedoms formed the cornerstone not only of the French and American Revolutions, but also of all contemporary fundamental human rights treatises and constitutional orders in Western polities, including the EU. Except that by then, such rights were not to be limited to the barons of the day.
So, that’s the “liberal” part of “liberal democracy”. But what about “democracy”? Doesn’t democracy mean “the rule of the people”? Yes, indeed it does. So, how does that square with the rights of individuals we have been talking about so far?
What the people cannot decide
The connection between liberalism and democracy is not as straightforward as some might want to make us believe. A democracy rules by majoritarian means, 50%+1 vote decides. But the very idea of liberal government is that even what we call “the will of the majority” cannot override the basic rights of the individual. A form of compromise was necessary.
Historically, liberals understood that the very noble idea of self-government through democratic means could only be brought in line with their thinking when combined with a strong set of guarantees for individual rights and freedoms.13 These guarantees could not be given in special situations in which the problems arose, but had to be set beforehand, in principle and in perpetuity.
On the value of compromise
If you have ever been in a relationship you know that living together necessitates compromise, at times a lot of it. Be honest, do you really like all the things you have in your apartment? If you are reading this booklet at home, take a look around. How many of the things surrounding you do you actually like, and how many did your partner put there and you didn’t deem it worth having a fight over? By the way, we know such rather trivial realisations may be the one drop too many for a strained relationship. As we don’t really want to be responsible for your partnership breaking up, please, think about the larger happiness you get from the relationship to counter the subversive thoughts we may have just implanted.
It is out of this other—again very simple—idea, the notion of the rule of law was born. As a set of general, individual, human rights as well as certain rights and freedoms pertaining to the domain of governing and social order. The rule of law does not only formally limit government action in a particular way. When meaningfully employed, it also serves as a guarantee for human and individual rights against particular democratic and state decisions.
When the rule of law is absent, liberal democracy loses its “protective”14 aspect. We become dependent on the benevolence of others, in many cases of the undefined majority. Political rule becomes arbitrary.
If you are one of these people that likes to say what she thinks and take action to change things you deem unfair—as we pretty much hope you are—then you might find yourself in a tricky situation when the rule of law is absent. That is why we must act, to prevent any of us ever being put into such a situation!
1 For a detailed analysis of the EU’s reaction to the Yugoslav conflicts, see Josip Glaurdic, The Hour of Europe: Western Powers and the Breakup of Yugoslavia (Yale University Press, 2011).
2 See also Adis Merdzanovic, ‘A Sustainable European Integration Policy for the Western Balkans? Testing Five Common Assumptions’, in Western Balkans Back in Focus. How to Shape Europe’s Reengagement with a Region in Crisis, ed. Tobias Flessenkemper and Thomas Müller-Färber (Rehburg-Loccum: Loccumer Protokolle Vol. 28/2018, 2018), 9–26.
3 Deutsche Welle, ‘Youth Are Deserting Balkan Countries’, Dw.Com, 23 December 2016, https://www.dw.com/en/youth-are-deserting-balkan-countries/a-36891266.
4 See, for example, Florian Bieber (2020): The Rise of Authoritarianism in the Western Balkans. Cham: Palgrave MacMillan Pivot; or Jasmin Mujanovic (2018): Hunger and Fury. The Crisis of Democracy in the Balkans. London: Hurst & Company.
5 This is the classical definition of legitimacy provided by H.L.A. Harts. See Herbert L.A. Hart, The Concept of Law: With a Postscript Edited by Penelope A. Bulloch and Joseph Raz, ed. Herbert L.A. Hart and Penelope A. Bulloch (Oxford: Clarendon Press, 1994). For a discussion in the EU context see Vivien Schmidt, V. A. (2020). Europe’s crisis of legitimacy: Governing by rules and ruling by numbers in the eurozone. Oxford University Press. See also Teitel, R. G. (2001). Humanity’s law: rule of law for the new global politics. Cornell Int'l LJ, 35, 355.
6 Rainer Grote, ‘rule of law, Rechtsstaat and Etat de Droit’, in Constitutionalism, Universalism and Democracy: A Comparative Analysis, ed. Christian Starck (Baden-Baden: Nomos, 1999), 271; Friedrich August von Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1978).
7 As exemplified for instance in Relocating the rule of law, whose various authors not only reinterpret the rule of law in the history of ideas, but as an ideal and a praxis in the here and now. See Gianluigi Palombella and Neil Walker, eds., Relocating the rule of law (Oxford: Bloomsbury Publishing, 2009).
8 Neil Walker, ‘The rule of law and the EU: Nexessity’s Mixed Virtue’, in Relocating the rule of law, ed. Gianluigi Palombella and Neil Walker (Oxford: Bloomsbury Publishing, 2009), 120.
9 Florian Bieber, ‘Patterns of Competitive Authoritarianism in the Western Balkans’, East European Politics 34, no. 3 (2018): 337–54.
10 Maja Zivanovic, ‘Poor Progress for Human Rights in the Balkans, HRW Report’, Balkan Insight, 18 January 2018, http://www.balkaninsight.com/en/article/balkan-countries-still-facing-old-human-rights-issues-01-18-2018.
11 John Stuart Mill, ‘On Liberty’, in On Liberty and Other Essays, Oxford World’s Classics (Oxford: Oxford University Press, 1869), 14.
12 John Locke, Locke: Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988).
13 Michael Freeden, Liberalism. A Very Short Introduction (Oxford: Oxford University Press, 2015), 26.
14 David Held, Models of Democracy, Third Edition (Stanford: Stanford University Press, 2006), 78.
Chapter 3
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