The Rule of Law: Back to the Roots

The primary reason for the confusion in political discussions on the rule of law is the lack of generally accepted understanding of this concept. It can be surprising since the idea of the rule of law is the most basic intellectual structure of the European legal culture, which distinguishes and defines it. It is much older than the modern concept of the state and unites all the main strands of classical and modern European legal thought. If we want to bring order to the ongoing discussion, we have to go back to the roots and search for the generally accepted understanding of the notion. 

The basic features of the rule of law

Aristotle famously expressed its core in Politics claiming that “it is more proper that law should govern than any one of the citizens”. The basic aim of the rule of law was defined by Cicero, who stated in Pro Cluentio: “We are all servants of the laws in order to be free”. This mode of thinking was often repeated in medieval and early modern legal thought. Polish 16th-century thinker Wawrzyniec Goślicki very well synthesized both those positions in his piece De Optimo Senatore, claiming: “kings rule under the law and by law, and the main goal of their rule is that freedoms are respected”. 

The enlightenment idea of the rule of law, based on the same basic premises, was developed in opposition to the unlimited power of one person, despotism and tyranny that emerged in absolute monarchies. From the very outset, it appeared in two different formulas. The common law notion of the rule of law, which is rooted in tradition, custom and based on the institution of legal precedent, was first comprehensively described by Samuel Rutherford in a study holding a significant title: Lex, Rex, proving that the rulers are subject to the law. The continental concept of Rechtstaat highlights the same qualities but puts central emphasis on the positive law and the creative power of the state. 

The consequences of the disregard for the rule of law

Despotism, authoritarianism, and dictatorship stand in opposition to the rule of law also today. The consequence of the contempt for the rule of law is disregard for the binding legal provisions, including basic human rights guarantees. We can see it today, observing the Russian invasion in Ukraine, which results not only in violation of the prohibition of aggressive war but also in atrocities committed against civilians and civilian facilities. 

The fundamental aspects of the rule of law

Apart from the supremacy of the binding legal norms over the rulers, other constitutive aspects of the idea of ​​the rule of law include: 

· respect for the fundamental rights and freedoms of individuals and groups; 

· judicial independence and independence of judges, which entails guarantees of the free mandate of a judge; 

· factual enforcement of legal decisions issued by courts and administrative bodies. 

The rule of law is also closely linked with the principles of legal certainty and stability of law, as well as citizens’ trust in the state and the law it creates. The non-political constitutional review is also of key importance. 

United in diversity: secondary aspects of the rule of law

Those basic standards of the rule of law can be implemented in various ways. We shall bear in mind that the motto of the European Union says, “United in Diversity”. The divergence of legal solutions in force across our continent cannot be treated as a problem as such. 

The differences in basic legal structures of the states ruled by the law are profound and significant. The system of sources of law may have a diverse character: in common law countries, custom and precedent enjoy formal authority, while in continental law, both those sources do not have a binding character. 

The majority of the law-abiding states have a written constitution - however, this is not an absolute rule. The Constitution has never been formally adopted in the United Kingdom and New Zealand, whose legal systems are based on both constitutional custom and acts of general legislation holding special authority. 

The system of constitutional review in some countries derives from Kelsen’s idea of ​​the Constitutional Tribunal and takes on an abstract character; in others, it is dispersed and based on precedential case-law, i.e., in the USA or the United Kingdom. The Dutch Constitution even explicitly prohibits judicial review of statutory norms, although the Council of State formally has just an advisory role but enjoys considerable authority. 

The judiciary structure often includes a separate system of administrative courts, but in many countries, it is up to general courts to review administrative acts and decisions. 

The idea of ​​the rule of law is closely related to the concept of the tripartite division of powers, which, however, is by no means the universal standard in countries ruled by the law: both Switzerland and the United Kingdom never recognized clear division between the judiciary, the legislative and the executive. 

The models for appointing judges may significantly differ technically, ranging from systems which leave the decision to the democratically appointed committees (like Germany) to those which are based on the committees composed mainly of present members of the judiciary. Nevertheless, in the vast majority of European countries, their election by a simple parliamentary majority is considered unacceptable. 

As we see, the legal systems of countries ruled by the law across Europe are very diverse. It is extremely hard to assess the quality of the solutions in question. Nevertheless, one thing is certain: the principle of the rule of law is the strongest if its technical features are rooted in the consciousness of society and are not put in opposition to its tradition and culture. 

Misunderstanding of the rule of law

At the same time, it is crucial to identify the misconceptions and naive beliefs about the rule of law, which have done a lot of damage in the past. 

Modern European states of law are democratic countries, and democracy is generally accepted as the mode of election of the executive power. Nevertheless, no judgment of the democratic majority cannot revoke the most basic legal standards, including fundamental rights. There have been too many lessons in the past showing that such a position can lead astray and bring tragic consequences. 

At a certain point, the normativist illusion was widespread, emphasizing only the formal aspect of the rule of law and the internal consistency of solutions adopted in a given country. The reality of 20th-century brutal dictatorships, which very often formally applied the law, has painfully verified this belief. 

To what extent can we assess the state of the rule of law?

Even a brief glance at the idea of the rule of law proves that, while we can identify its core, the notion in each country resembles an old building overgrown with ivy. One cannot simply cut such a building out of its surroundings and move it to a different place. The idea of the rule of law is well respected if rooted in the history, tradition, and context of a particular society. 

We should distinguish between the core features of the rule of law, which is the basis of the European legal identity, and divergent solutions that are legitimately in force across our continent. This does not mean that one cannot assess the condition of the rule of law in a single country from the outside. If we do so, we have to bear in mind that the rule of law is always part of a culture – it has both universal and particular aspects. 

The rule of law shall apply not only to those who are politically weaker but in the first place to those who are powerful. The reality of past months and the absolute disregard for the rule of law in Russia shows us the tragic far-reaching consequences of what can happen if the decline of the rule of law is ignored.