When the World Justice Project surveys people about what the rule of law means for the WJP Rule of Law Index, the most popular answer in almost every country, including the United States, is, “I don’t know.”
This unfortunate reality threatens the underlying conditions necessary for a community governed by the rule of law: a common understanding of its principles and a shared commitment to its ideals.
In recent weeks, the United States has endured an historic rule of law test — a disputed presidential election culminating in a violent attack on the U.S. Capitol by those intent on preventing a peaceful and lawful transition of power. While ultimately our system withstood the assault, a fundamental misunderstanding and manipulation of the meaning of the rule of law enabled this crisis. Many of the rioters who stormed the Capitol building and committed numerous federal crimes thought they were upholding the rule of law, egged on, for example, by robocalls from the Rule of Law Defense Fund. Until we build broad consensus about what the rule of law is and why it matters, U.S. rule of law will remain vulnerable.
So what does it mean?
At heart, the rule of law ensures accountability under law for everyone, regardless of power or privilege, in or out of government. The idea, traceable to ancient scholars, resonates in most major legal traditions. America’s founders spoke of “an empire of laws not men,” and they institutionalized the idea in a constitutional framework that provides checks and balances on government authority. Elaborated further by the United Nations and the U.S. federal judiciary, it can be understood as a system that delivers accountability, just laws, open government and fair and impartial dispute resolution.
In practice, rule of law rhetoric is too often co-opted to advance policy preferences and politics rather than principles. Over the past year, the rule of law has been invoked in the United States by both sides of immigration, abortion and environmental protection debates; by those protesting racist policing and others urging an aggressive ‘law and order’ response; and by all sides to the election-related disputes. The media reports all of these rule of law claims credulously and without much scrutiny, as though the rule of law is whatever anyone says it is.
The confusion is not confined to the United States. Autocrats from Budapest to Beijing manipulate the rule of law concept to justify what is more accurately characterized as ‘rule by law.’ Stung by European Union censure of their authoritarian ways, Hungarian officials are establishing a think tank to advance their own conception of the rule of law. Meanwhile, through a new five-year blueprint for action, China is promoting “Xi Jinping Thought on Rule of Law,” which includes among its precepts “upholding Party leadership on overall law-based governance.”
Against this backdrop, it is critically important to articulate and promote a clear conception of the rule of law. Failure to do so threatens good governance everywhere.
So let’s be clear. Just because a policy or practice is pursued through law does not mean it upholds the rule of law. A nation governed by the rule of law should check corruption but not selectively, arbitrarily or without regard for due process. The rule of law promises ‘law and order’ but not at the expense of fundamental rights.
The rule of law does not take sides in policy debates or elections, so long as the process and the outcomes are governed by duly enacted laws that are clear and accessible, are applied equally to all, protect fundamental rights and are reviewable by an independent judiciary. Most importantly, the rule of law is never fully achieved nor destroyed, no one act makes or breaks it and it requires continuous nurturing.
Each and every one of us has a role to play in strengthening this system, first and foremost, by advancing an accurate understanding of the rule of law concept. Politicians and advocates should refrain from cynical or opportunistic abuse of the idea. The media should exercise care in reporting false rule of law claims that erode its content. Educators should teach the idea in all of its complexity and help students learn to differentiate rule of law fact from fiction.
All of us should be savvy guardians of the rule of law, hear sweeping rule of law claims with healthy skepticism, and insist that our leaders treat the idea with intellectual honesty, rigor and respect.
Elizabeth Andersen is the executive director of the World Justice Project, which works to promote the rule of law globally and annually publishes the WJP Rule of Law Index, measuring the rule of law in 128 countries.