Academic journal article The Fletcher Forum of World Affairs

The Rule of Law under Siege: A Foreword

Academic journal article The Fletcher Forum of World Affairs

The Rule of Law under Siege: A Foreword

Article excerpt

INTRODUCTION

This volume of The Fletcher Forum on the rule of law could not be timelier. It addresses an elusive and surprisingly contested concept, the central premise of which is that no person is above the law, including those who govern. The concept dates back to Greek and Roman antiquity, but the term came into common usage in the nineteenth century when it was associated with the rise of liberal democracies.1 It is normally used to describe governance at the national level, but in recent years has been applied to global governance as well. It has implications for international relations in two respects: it is seen as an ideal that ought to be promoted within states and as an ideal that ought to govern relations between states.

One need not look beyond the headlines to see that the rule of law is under siege at both levels.2 From one perspective, this is not necessarily a bad thing. For many years, law students have been taught that faith in the rule of law as an unqualified good is either hopelessly naive or positively malign. It is either a utopian ideal that no society lives up to-certainly not international society-or it is an instrument by which the powerful perpetuate their power at the expense of the people who are supposed to be protected by the law.

While these critiques help to illuminate the fallacy that law can be separated from politics-or from the exercise of power-if taken too far, they are dangerous. At the national level, when so-called populists are undermining democratic institutions in the name of "ordinary people," abandoning the rule of law as an ideal is an invitation to arbitrary or, at worst, tyrannical governance. At the international level, when multilateral institutions and principled forms of cooperation are scoffed at, giving up on international law brings us a step closer to Thucydides' dictum that the strong do what they can and the weak suffer what they must. While critical examination of the rule of law is warranted, in this day and age we must be careful not to let healthy skepticism blind us to law's virtues.

RULE OF LAW AT THE NATIONAL LEVEL

In a 2019 article, legal philosopher Joseph Raz provides a straightforward explanation of what the rule of law means.3 Acknowledging that there are different definitions of the term, he suggests that the following five principles are common to virtually all accounts of the doctrine: the law must be (1) reasonably clear, (2) reasonably stable, (3) publicly available, (4) generalizable and (5) applied prospectively, not retroactively.4 Jeremy Waldron offers a similar definition as a starting point, but adds to the five formal principles the processes by which the principles are administered, the institutions that their administration requires, and-more controversially-certain substantive ideals like the presumption of liberty.5

The United Nations has its own definition, first articulated by UN Secretary-General Kofi Annan in 2004:

...the rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency.6

This definition, and expressions of a commitment to it, found their way into various inter-governmental documents.7 In a recent speech, UN Assistant Secretary-General Volker Turk claimed the rule of law is a prerequisite for peace, development, and human rights.8 He said it is fundamental to the social contract between governments and people and called it an "essential element of building resilient societies. …

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