What is the rule of law?

Most aspects of our lives are governed by rules and regulations – how much tax we pay, where we can park our car, and the speed limit at which we drive. Inconvenient as it is at times, there is a common understanding that the sacrifices we all make to follow the law are worth it, because if everyone plays ball, it makes life easier for society as a whole.

Equal buy-in and utilitarian ideals play an important role here because the positive returns rely on a wide participation and individual sacrifice (namely, giving up absolute freedom – getting to do whatever I want, whenever I want), in the interest of the greater good. Therefore, we would expect our lawmakers who dictate the law to lead by shining example.

Imagine one Sunday afternoon you’re out for a pleasant drive, when a police officer pulls you over and gives you a fine for driving 80 km/h in a 50 km/h zone. As she writes out your ticket, a shiny red card speeds by. You look at her expectantly, but she waves it off – that’s the mayor, she responds, the speed limit doesn’t apply to her. When you get your fine in the post (payable to the local authority, which pays the mayor’s salary) you’d probably feel hard done by.

This is where the rule of law steps in.

The rule of law is a set of governing principles which dictate that no one, including governments, politicians, or lawmakers, is above the law. This political philosophy speaks to the idea that the system of laws, institutions and norms is in place to ensure accountability spanning all levels of society, meaning no one is given a free pass. The rule of law does not refer to any particular law, but rather the body of laws and common standards within a country, state or community that everyone, both citizens and institutions, are bound by, as well as the system and mechanisms which enforce those laws.

This system of accountability is captured in 4 broad principles:

Accountability

The rule of law is designed to hold everyone accountable, regardless of their station. This is an all-encompassing accountability which pertains to government as well as institutions and doesn’t allow for exceptions or preferential treatment. For example, police officers and members of government should not be exempt from the law because of their position of power.

Just Law

In order for the rule of law to be fair, it should be understandable, accessible to the greater public, not undergo drastic changes (stable) and should be equal in application, in other words not stricter for some than for others.

In its common understanding and application the rule of law contains a moral dimension, which guarantees human rights, protection of property, respects contracts and enforces procedural rights.

Open Government

The manner in which the law is implemented also bears relevance. This encompasses the entire lifecycle of a law, starting from the moment it is adopted, its application to government agencies, the implementation of the law, and how it is enforced. All these steps must be transparently available to all, justly enacted, and should happen without delay.

Accessible and Impartial Justice

Those who apply the law should be representative of their community, property qualified, and in carrying out their work they should adhere to professional ethical standards. There should be a separation of powers between those enforcing the law and those holding political power, and their offices should be open to the public.

What is the rule of law index?

The Rule of Law Index provides a person-centred overview of the condition of the rule of law across the world, covering 139 countries and jurisdictions. The annual report collects the views of the general public, as well as in-country legal practitioners and experts through nationally distributed surveys. This data is collated and measured to provide an overview of how the rule of law is perceived and experienced in each country, as well as providing country scores and rankings based on eight factors. It is intended as a tool to inform and support the work of governments, civil society organisations, academics, businesses and citizens seeking to strengthen the rule of law.

Rule of law origins: historical background of the term

The rudimentary ideas that constitute the rule of law, that no single ruler is above the law, can be traced back to ancient civilizations. According to the Greek thinker Aristotle, "It is more proper that law should govern than any one of the citizens." He believed that men should be governed by the law rather than any individual citizen, however as it is easier to centralise the ‘supreme’ power in a single person, they should be regarded as a servant and protector of the law. This contradicts the previously long-held notion that rulers are appointed by divine right and are therefore are above the law.

The rule of law speaks to the idea that laws are a tool to help and serve people, to enhance their freedom rather than restrict it. According to Cicero, “We are all servants of the laws in order that we may be free.”

This line of thinking was carried forward by Thomas Paine who expressed in his pamphlet Common Sense that, "in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other."

What are the 8 primary factors of the rule of law?

The rule of law is measured according to 8 factorsoutlined by the WJP Rule of Law Index.

1. Constraints on Government Power

The primary idea behind the rule of law is that those holding power are themselves governed by the law. This implies that there is a set of laws limiting the scope of the government, and that there is a separation of powers between the legislature and the judiciary. A system of checks and balances limiting and providing governmental oversight should be in check, through audits and reviews carried out by non-government actors. Governmental officials who breach the law should be sanctioned and there should be a smooth transition of power in adherence to the law.

2. Absence of Corruption

Government officials in all positions, ranging from civil servants, legislators, judges, the police and military, should not use their public office to serve their personal interests.

3. Open Government

An important aspect of the rule of law is accessibility and transparency: the body of law should be easily available to citizens and the government should publish whatever data they gather. The state should foster the active participation of citizens around issues of public concern, as well as putting in place processes which make it possible for people to sound their complaints and give feedback.

4. Fundamental Rights

The factor of fundamental rights speaks to the idea that rule of law concerns itself not only with the idea that the rule of law is supreme, but that the content of the law is also important. Afterall, if the laws in place are oppressive, they can be used against the people to serve the interests of a tyrannical leader. Therefore, the laws should guarantee the fundamental rights.

5. Order and Security

If the rule of law is properly implemented, it should keep the peace. Rather than seeking personal vengeance, people feel that they can rely on the state to keep crime in check and dole out justice. Using the law and state structures to remedy grievances wards off the threat of civil conflict.

6. Regulatory Enforcement

It is through our actions that we breathe life into the law, making it more than just words on a page. The law permeates our daily lives through regulation, and the effectiveness of the rule of law can be observed by measuring to what extent regulations are implemented and enforced. Is the government leading by example by implementing its own regulations, and doing so in a manner that is consistent and fair? Does the government enforce regulations by keeping checks on the public and private sector eg by implementing health and safety protocols or adhering to labour law?

7. Civil Justice

An important aspect to maintaining the rule of law is that there is equal buy-in from everyone – meaning people from all pockets of society believe the civil justice system is equally available to them and has the capacity to resolve their issues fairly. If you were worried the judge is in the pocket of wealthy business people, or you can’t afford a lawyer, you might be tempted to find extra-legal solutions to your problems. To prevent this, the civil justice system should be independent of corruption, discrimination or political influence, court proceedings should be conducted in a timely manner, and the decision the judge hands down should be effectively implemented.

8. Criminal Justice

The police are for many people, the face of the law. If we believe we are in danger or a crime has been committed against us, we turn to the criminal justice system for help. If this system is effective, it provides people with an outlet to solve personal grievances and removes the temptation to take the matter into their own hands. The treatment of perpetrators of crimes entering this system is also important. Are they presumed to be innocent? Do they have access to legal representation? How are they treated while in prison?

Rule of law examples: How does it affect society?

If you are lucky enough to grow up in a society with strong adherence to the rule of law, it might be difficult to see how much it affects your daily life in positive ways. Chances are, you take it for granted. When you read the newspaper in the morning, you might not appreciate that not everyone has access to an independently written article that is critical of the government. Being able to protest in the street, or access basic rights as services like access to healthcare and education, are systems all rooted in the rule of law. If corrupt politicians siphoned off public money into their private pockets, public infrastructure would start to crumble.

And then there’s the big picture stuff. Many of us take for granted a peaceful transition of power (which is perhaps democracy’s biggest achievement). But the storming of the Capitol in the U.S. last year was a worrying harbinger that Europe should not ignore – the rule of law is like a garden that needs constant tending to. Liberties’ annual report shows that the rule of law is backsliding in Europe. To find ourselves on stronger ground, the EU needs to make good on its promises to strengthen civil society, protect media freedom, and shore up the rule of law.

Further reading:

• Liberties Rule of Law Report 2022: EU Governments Vandalising or Neglecting Their Democracies
• Putin's Invasion of Ukraine Should Spur EU Leaders to Strengthen Democracy at Home
• What is Civic Space? Why Is It a Keystone In Any Democratic Society? How Do We Protect It?

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