Over a decade ago I wrote a book on the Rule of Law, making the argument that it was the “common sense of global politics”. At the time I thought I was exploring a settled political norm, but it now seems more likely I was identifying its high-water mark. Recently, the Rule of Law seems under threat, so it may be a good time to remind ourselves just what the Rule of Law is, what it entails, and the danger inherent in its partial collapse.
What is the Rule of Law?
At its most basic, the Rule of Law is contrasted with the rule of men (or persons). The rule of men is taken as arbitrary and based on personal (often unclear or uncommunicated) prejudice or discrimination; the self-interested actions of the politically powerful. Conversely, the Rule of Law is dependent on pre-existing and publicly known rules and enforced in a disinterested manner; that is without prejudice or favour.
There are many accounts of how best to understand the Rule of Law, but it makes most sense to see these different ideas as arrayed along a continuum between extreme points. At one end we have what we might call rule by law; the use of laws to control society in a formal sense, but with little regard to their ethical content. We can call this the thinnest rule of law. For example, an authoritarian state might limit the areas certain identified groups can live in, such as the pass laws in Apartheid South Africa.
At the other end of the continuum is what we can call the thick Rule of Law; here the role of the law encompasses justice, fairness and other (liberal) norms of the good society. Between these two extremes lie different mixtures of formal legal rules and the range of political norms such laws might support or maintain. For instance, this might include the inclusion in domestic laws of the human rights recognised in international treaties.
Much of the political discussion of the Rule of Law, therefore, is about at what point on this continuum most people (or perhaps most politicians) feel the type of society they seek is best served. Different points on the continuum offer different sets of norms that the system of law should uphold, from questions of equality of rights to issues about privacy or freedom to act or speak. We might say that as we move towards the thicker Rule of Law, so the normative content becomes more weighty or full. As we move towards the thinner end of the continuum, so the law becomes an issue of process rather than furthering any liberal morality.
So again, we might say that the rule by law in Apartheid South Africa was procedurally clear but morally suspect and certainly unfair. Likewise, we might hope that the Rule of Law in this country is broadly fair and just (even if in some cases critics argue it fails to meet this test).
The centrality of predictability
While the Rule of Law can be said to be patterned by neutrality and uniformity (the law is the same for everyone), its other central characteristic is predictability. Indeed, one of the underlying principles of all, even for the thinnest forms of rule of law, is that the law should not be retrospective. Our actions and behaviours should only be subject to the law as known at the time, not subject to a later legislative act to render then legal actions illegal. So, while the law may change, and often does, it can and should only be used to constrain and sanction future actions and behaviours, not punish those in the past.
This is particularly important when it comes to establishing and maintaining the functions of markets; markets generally, not only those in contemporary capitalist systems. As I have pointed out elsewhere: “the rule of law underpins economic predictability as regard the operations of markets if not their outcomes, and by doing so buttresses the confidence in the future that market actors require if they are to enter into market exchanges.” This is to say, if economic relations require some confidence that the system in which we work and trade will endure, then the rule of law, by supporting contract law, property law and other legal regulatory aspects of market relations, allows economic relations to take place effectively and efficiently.
Although we hardly notice them, the rules of property and contract underpin every purchase we make. We take it for granted that when we pay for an item, the ownership transfers to us and therefore we have the right to utilise (or sell on) that item as we see fit. Without such a legal underpinning we could not be sure that the item would not be snatched back or that someone else might dispute our possession. In a market without laws, transactions are only as good as your physical ability to enforce any exchange.
So, without the Rule of Law’s ability to maintain a predictable legal environment, all sorts of economic activities become more risky and indeed may become practically impossible. To undermine the rule of law is to start to dismantle the structures that support market relations. The key question then becomes how thin can the rule of law be before our market relations become difficult to conduct?
In one sense, the current American government under President Trump is conducting a real-life experiment to answer this question. If the law becomes unpredictable then how likely is it that people will continue to behave in line with current (but possibly swiftly changing) laws, or even their apparent absence?
One place where this has been the case for centuries is in the realm of international law.
Will states continue to respect the law?
In a country, the Rule of Law is guaranteed and enforced by the state and its agencies who have, as Max Weber once put it, “the monopoly of the legitimate use of physical force within a given territory.” In the international realm, no such legitimate authority exists, but as Louis Henkin pointed out, “almost all nations observe almost all principles of international law… almost all of the time.” The question is why?
This has been a subject of considerable interest and discussion by those who study international relations and the law, but here it can be reduced to three key issues:
- Cycles of interaction: given the utility of reducing friction in international diplomacy, because states are interacting regularly, they develop settled modes, and these for the most part now, are based on settled norms of international law that are centuries old. These are easy to adopt because all parties are aware of them.
- Internalisation: some, although by no means all international legal norms (and thereby legal forms) are translated into domestic law, not least by the processes that follow accession to international treaties, of which a key example would be human rights.
- Self-interest of states: like economic actions, international relations are easier, or perhaps only possible where actions are predictable & largely transparent. As noted above, predictability is key to law’s value in economics; likewise in international relations, if other states’ actions are predictable, in that they follow international law, then diplomacy can be more effective. But this is largely reciprocal; states need to be seen as mainly internationally legally compliant to also benefit from other states adopting the same stance in dealings with them.
So, while international law is largely conventional, followed by convention not due to force or a threat of enforcement by a higher authority, because of its broad utility, most states, most of the time, observe most of the principles of international law. We can see this when states acknowledge neighbours’ borders, respect the requirements of diplomatic immunity, or keep to agreements made by treaties even if they were signed by previous governments.
Is the Rule of Law under threat from President Trump’s administration?
David Allen Green warned in a recent article, that:
- The wealth of any billionaire (or of anybody else) is ultimately a bundle of legal rights – in contract, in property, in trusts, and so on.
- It is because these rights are enforceable that the wealth exists and accumulates. Unless the legal rights are enforceable, there simply is no wealth.
And therefore, as he continues, billionaires working with the Trump administration acting as if the Rule of Law “can be freely defied, on a pick-and-choose basis should be very careful for what they wish for.” For if billionaire wealth is built on legally defended property rights, but the system of law is brought into doubt by their (and their allies’) actions, how can their wealth be protected?
One answer is a retreat into force and an enclave political economy where the wealthy’s possession of assets (both physical and financial) is protected by private force. However, this is very expensive and in a sense starts to look more like the international realm than the domestic political environment.
So, while Green’s warning is apposite and well grounded, what we might conclude from the well-established operation of international law is that for the most part the Rule of Law will continue due to the self-interest of the American government and its wealthy allies. Certainly, we may see an expansion of those aspects of socio-economic life where laws’ predictability is compromised or even removed, but in the end this is likely to be relatively narrowly focused.
This is not to argue that it is any less dangerous than Green argues, only to suggest that in moving back towards a thinner rule of law (a dilution of the thicker Rule of Law), we will now need to be clearer in our minds where and when we can rely on the law, and when and where we cannot. For some absolutists this means the end of the Rule of Law altogether, but rather it may just be a move one way along the Rule of Law’s continuum (towards the thin end) that will be reversed when the costs of compromising the rule of law become increasingly evident even to those undermining laws’ operation for their own (supposed) advantage.
