Protecting the rule of law – the right way I.

4 min read

Rules of law

A few legal-ish introductory notes on protecting legal principles

This article is by no means intended to say that rule of law shouldn’t be protected.

In fact, in my view it is one of the founding principles of „the European Way of Life”. Rule of law is the foundation and pillar of democracy. It allows us to express our opinions freely, even if it expresses harsh criticism of our governments. It allows our business to thrive. It has been proclaimed as a basic principle at universal level by the United Nations. Democracy, human rights and rule of law are essential to the operation of the EU, as well.

It clearly should be protected. But it has to be protected the right way. By adhering to the principle of … the rule of law.

But, what is rule of law? (This is the first part where things get complicated.)

The UN defines rule of law as a principle of governance in which all persons, institutions and entities, public or private, including the state itself, are accountable to laws.

The World Justice Project defines it as a durable system of laws, institutions and community commitment that delivers four universal principles:

  • accountability,
  • just laws (the laws are clear, publicized and stable, are applied evenly and protect fundamental rights, including the security of persons and contract, property and human rights)
  • open government (the process by which the laws are enacted, administered and enforced are accessible, fair and efficient)
  • accessible and impartial dispute resolution (justice is delivered timely by competent, ethical and independent representatives and neutrals who are accessible, have adequate resources and reflect the makeup of the communities they serve)

Worldwide Governance Indicators use a bit diverging definition: the extent to which agents have confidence of and abide by the rules of society, and in particular, the quality of contract enforcement, the police and the courts, as well as the likelihood of crime and violence.

The European Commission defines the rule of law by the fact that public authority is under the control of an independent and impartial judiciary within existing law and in line with the values of democracy and fundamental rights.

The Venice Commission uses another version (and an extensive checklist published in 2016), based on the idea of “rule of law as a practical concept”: it includes various aspects of the principle, like legality, legal certainty, prevention of abuse of powers, equality before the law, non-discrimination, access to justice.

One can check many definitions, but they are all likely to contain mostly the same basic set of values and even more principles, with some differences. (And if you break any of these further down, you’ll get even more: accessible and impartial dispute resolution itself is based on a set of principles, namely the principles defining free and fair trial, like innocent until proven guilty and so on).

So, the phrase “the rule of law” refers more to a set of underlying values and principles, to the general societal and political situation and not any specific legal rule. But there is no universally accepted definition to it, only “working concepts”.

And here come the problems: where and how to draw that fine line between political and legal without a universally accepted definition? How to determine the degree to which a government’s act meets the (unwritten) essence of a principle or constitutes a breach of it?

Even in a seemingly simple and definitely not political case, many questions can arise. Let’s see a pretty straightforward one: someone stabs someone else in the leg and that man dies. There has been a serious violation, clearly punishable. (Or not.)

But, rule of law also requires, that the legal acts on which the decision will be based, should be accepted and published by the legislative body of the country. Before the act happens. Of course, it is hard to envision a criminal code not containing regulations on the above crime, but some forms of computer related crimes might not be covered (yet).

Yet, how the judge rules on it, depends on many things that determine to what extent this situation fits the definition written in the law. What was the intent: to kill or to hurt? Was the attacker acting in self-defense, under duress or in necessity? Did he have a weapon meant to kill? To what extent was he responsible for the events to develop? Was he in a state of mind in which he knew or should have known that his act might cause serious injury or even death? Should the attacker have known that his act would result in death because the femoral artery runs through that specific part of the leg he cut? What if he intended to cut the hand but the victim moved away? What if the cut itself was only superficial and was intended only to hurt but the victim had an underlying disease, like hemophilia, unknown to the attacker that resulted in his death? Did the attacker try to reverse the events or at least minimize the damage, e.g. by calling an ambulance? What other circumstances should be taken into account? And so on.

The above questions have to be answered from many sources, from many different legal acts on many different levels within the legal system of the country and the judge will have to use his knowledge, background and good judgement to decide whether it was a murder, a manslaughter or something else. And she/he has to answer even more questions before deciding on the sentence and choosing a verdict: like what is the purpose (punishment, retribution, education, deterrence or a mixture of these), the cost/benefit of the possible consequences (imprisonment is expensive, public work is not always safe, confiscating is not always possible, etc.).

In fact, this skill sets a good judge and a bad one apart.

The problem with principles and values (on the border between legal and political) is that their essence seems obvious if you look at them superficially. But if applied to real life problems, one has to answer way too many questions. Like to what extent is a certain governmental act a violation of one of the principles? The more abstract the principle is, the more the answer depends on the judge’s legal sense: is she/he applying a more restrictive interpretation or is she/he ready to legal activism, stretching the meaning of the principle. Other factors should be taken into account, as well: was that certain act an answer to a problem rooted in the history of the country or something else not easily understood by foreigners? Etc. You need one hell of a judge, to set aside politics and political pressure and focus clearly on legal issues.

Defending rule of law the right way should start by setting politics and politically motivated decisions aside. Because politics, by definition, is more about interests and ideologies. Legal questions regarding the situation within the EU, more specifically, the Article 7 proceedings against Hungary and Poland (and, even more specifically, linking rule of law to payment of EU funds) could be:

  • Is there a clear, publicized and stable definition on what is rule of law and on what constitutes a breach of it (or at least a commonly accepted understanding) and
  • Is there a clear, publicized and stable set of consequences?
  • Did both of the above exist before the government acted?
  • Is that definition and set of consequences applied evenly, across the whole EU?
  • Is there an accessible and impartial dispute resolution?

Coming up next: The EU and it’s current legal framework

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