A Citizen’s Guide to the Rule of Law. Kalypso Nicolaidis

“I didn’t have the money to pay his fee, so he went and took the car I stole.”

      To be sure, the rule of law has a lot to do with politicians making the laws and the judiciary upholding them in courts. And, of course, depending on what type of law it is, there is also a role for the police. It’s “law and order”, like in the American TV show reborn in so many incarnations. But that’s only one bit, by far not the whole story of the rule of law.

       Beyond a sum of laws, regulations, legal proceedings, and judiciary rulings the rule of law is a more fundamental set of norms that ought to guide our social interactions wherever and whenever they occur.

      This sounds important and complicated, but the idea is quite simple: think of the rule of law as a safety net, like the trapeze net for circus artists. If they miss the rope and fall, the net saves their lives. The rule of law is a similar safety net for when somebody takes your rope away mid-air and the state or the police try to do with you as they wish. When citizens, for example, engage in the healthy activity of criticising the government, the government cannot simply throw them in jail, no matter how much it wishes to do so. And it’s because of the rule of law that politicians cannot agitate the population at large against any one group, its rights and freedoms, even if they are a minority in the state. The rule of law protects us against the state in all its forms.

      But the rule of law does far more. It does not only constrain the state, in fact it constrains everyone, every member of the society. It prohibits your neighbour from taking your lawnmower—and you from taking his car, no matter how much you desire it. That’s the law part. But when a member of the society refrains from stealing her neighbour’s stuff not because it would violate the law and because she fears the punishment, but because she believes it’s wrong to do so, the rule of law becomes more than a legal concept. It becomes a social norm, somewhat of an unwritten guideline for how one should behave when living with others in a society. The rule of law is thus a combination of legal and social norms that guide our existence within communities.

      In life, the rule of law is not everything, of course. Love, family, compassion, or comradery are important as well, no doubt. And so are many other things that make life worth living, from chocolate cake to sex. But without the rule of law, everything else is nothing. For citizens to thrive in a democratic, free and prosperous society, it’s really the rule of law that matters most!

      Yet this is precisely what we seem to have forgotten—perhaps out of convenience, if not negligence. Who among us wakes up in the morning thinking about the importance of the rule of law? Do you discuss the rule of law when you meet friends for a drink in the evening? Maybe you do, but most people don’t. Yet, we are willing to bet that you would think of the rule of law the day you become a victim of its absence.

      Imagine being be a journalist jailed for your reporting. Or a grandmother denied access to the courts after your property was taken from you. Or a member of a minority discriminated against by the state. Or someone denied her rights to a pension. In each case, the value of the rule of law has only become visible “in the breach”, as it so often does.

      We may think that moving outside the law has some advantages. Indeed, it sometimes has; countless successful criminals have demonstrated this unfortunate fact of life. As any tax lawyer might tell you, it’s not always the nice and law-abiding citizens that “win” in our society. And sometimes, we may even regard digressions from the law with a certain kind of fascination. It’s not by chance that there are far fewer successful movies about law-abiding citizens than about adventurous renegades. But be aware that, as Truman Capote famously said, “the problem with living outside the law is that you no longer have its protection”. And when you are caught—and let’s not forget that most criminals are eventually caught; hey, they even got Al Capone on tax evasion!—you probably would like to have a trial in which you stand a chance.

      None of these hypothetical situations may apply to you or us directly. But somewhere, someone finds herself in precisely that pickle right now—be it as an offender against the law, or a victim of its absence. Whoever it is and wherever she might live—we must care! For as constraining as the rule of law may be, it is fundamentally an instrument invented and refined to protect us. If we fail to care we deprive it of its sustenance. If we don’t defend the rule of law against its contemporary attackers, it may no longer be strong enough to protect us when we most need it.

      The rule of law needs tender loving care to be brought back to health in Europe and a forciori beyond—and that is a task for all of us.

…also ask what you can do for the Rule of Law!

      What is to be done? What can we, each and every one of us, do to save the rule of law, to bring it back to its former, vibrant self?

      The first step towards solving a problem is to admit that we have one. Therefore, let us first wrap our minds around the rule of law, what it is and why we need it. And then, let’s see where we have failed so far and how we could do better. That’s the goal of this book, a citizen’s guide to the rule of law.

      Our aim is to speak directly to our readers wherever they may live, with the hope that what we say about Europe is also relevant beyond. We know that we are dealing with complex issues here and we will do our readers the courtesy of not simplifying the matters outrageously. For sure, it’s complicated to live together peacefully!

      But by appealing to our shared intuitions, our experiences, and our common understanding of how the world works or, at least, ought to work, we hope to provide a practical guide and make these complex topics understandable. Yes, we do use political and legal theory, political science and philosophy in our arguments. But we hope to present a handy guide that speaks to practitioners, but also well beyond, to all concerned citizens.

      Sometimes we use thought experiments to make our arguments clear, and when we can, we offer real-world examples from across the continent. Forgive us for often avoiding specific country names for the sake of generalisation, if not anonymity. As should be clear by now, we are less concerned about where any concrete attack on the rule of law has happened, and more about the patient we seek to nurture, the combined consequences of continuous attacks for every day citizens. This wondrous creature of ours must be strengthened once again by our collective life force. By taking a position of levity and introducing a good portion of humour, our ambition is to suggest how we can save the rule of law.

      But more than that, we want this book to offer a call for action and for engagement.

Coming up next

      This book seeks to be an accessible but nevertheless sophisticated handbook for rule of law and its promotion by EU citizens. We wish to learn from the mistakes of the past and to suggest new pathways. We will deal not only with the question of how the rule of law should be promoted, but also with what it actually means in practice—in EU member states and in those countries wishing to join the Union. From Bucharest to Rome, from Madrid to Zagreb and from Priština to Sarajevo and Ankara, we wish to speak to all citizens, so that together, we can save the rule of law from its attackers.

      In Chapter 2 (When rule of law meets EU accession) we properly introduce the concept of rule of law and discuss its position within what we have increasingly come to call “liberal democracy”. In this book, we have chosen to look at the rule of law through the prism of accession to the EU because we think that this is where most questions of the rule of law become virulent. As we shall explain further in the chapter, we see the EU’s accession process as a “proof of concept” for our new understanding of the rule of law, with the latter’s principles being far more widely applicable than to EU enlargement.

      Chapter 3 (Rule of law promotion, EU-style) reviews the shortcomings of the rule of law approach currently promoted by the European Union. We will explain how the current approach does not really fit with what a deeper concept of rule of law should be. We will look at what the EU has done so far to promote the rule of law, and discuss why it did not work. Consider this chapter an introduction to the EU’s rule of law