Attacking the Rule of Law as a Peril for Democracy

16 May 2019   ·   Matthias Mahlmann

The rule of law is under attack – in Europe and elsewhere. This has destructive consequences for democracy as well since both are inseparably connected. The German government must not underestimate the fragility of the rule of law and should closely study the concrete political and legal instruments that undermine it.

Currently, widespread and strategically well-designed attacks on central elements of the rule of law are being launched in various countries. The events in Hungary, Poland or Turkey are just some examples for this. Core institutions of the rule of law, in particular independent courts, are either modified by law to such a degree that they become instruments of ruling groups or in the least are put under so much political pressure they are prevented from robustly protecting the rule of law, the separation of powers and people’s rights.

Peculiar new tools are developed including legal provisions that demand things that an institution cannot deliver. An example are the measures imposed by the Hungarian government against the Central European University (CEU) to prevent its contribution to free and critical thought in Hungary. These measures have stirred worldwide protests and legal action of the EU but remain up to now in place.

Public authorities no longer feel bound by the legal standards of their country. Legal uncertainty about the procedure of decision-making, the modes of application of law and the content of norms is increasing. Decisions are being stalled to diminish the legal protection of those critical of the government. Constitutions have become the object of change as well, for example by including in them vague and unclear terms that that help to justify the repression of dissent. The list of examples is getting longer every day.

The normative meaning of the rule of law

The rule of law has a formal and a substantial side. On the one hand, it concerns formal preconditions of rational government by legal means – for example legal certainty, transparency of norms, and legality of state action, etc. On the other hand, the rule of law is concerned with the protection of substantial normative principles, in particular human rights. The purpose of the formal principles is to serve this end, too. Legal certainty is central for securing the autonomy of persons; arbitrary rule is the evident arch enemy of freedom.

These important material principles are also under attack by government action. This is especially the case for politically important liberal rights – like freedom of speech, freedom of assembly or freedom of the press – that constitute the precondition for democratic deliberation and decision making. The Turkish government’s actions against the opposition are just one dramatic example for such measures.

In some countries, like Turkey, measures of repression go so far that the opposition is prosecuted with the means of the criminal law. Some political forces question the equality before the law of their citizens. Even excessive state violence is openly legitimized, for example in the context of a self-declared war on drugs in the Philippines.

Rule of law and democratic self-rule as the basis for equal autonomy

These symptoms of the destruction of the rule of law raise various worries, in particular about the individuals’ rights that are being violated. An important additional danger is that these measures are designed to – and indeed do – subvert democratic freedom and self-determination. The rule of law is an old vision, formulated in antiquity and conceptualized as an essential tool against tyranny and for the protection of liberty.

At the same time, it is a means to uphold the equality of citizens and make possible their active participation in the community’s decision-making process: it is a source of democratic self-empowerment of the people. These important insights in the intrinsic connection of the rule of law and democratic self-rule have lost no importance.

Rule of law is the foundation of the of democratic decision-making

Democracy depends on the existence of the rule of law. The rule of law is central to individuals’ ability to lead a self-determined life. There is no democracy without the rule of law and protected rights of freedom of speech, freedom of assembly or freedom of association. This is because the rule of law is the foundation of the structured organization of democratic decision-making, continuous over time. It fixes the procedural make-up of such decision-making and identifies the normative principles these decisions must respect.

To be sure, the protection of fundamental rights can lead to limitations on democratic decision-making in certain instances. That is the point of constitutional review or international supervisory mechanisms like the European Convention on Human Rights. But one should never forget that the purpose of these safeguards is to keep democracy alive even in times of profound crisis. The concrete fight for the rule of law in Europe and elsewhere is consequently a struggle for the survival of a meaningful democracy.

Some practical conclusions and recommendations

There are practical conclusions to be drawn from these thoughts for the German government as it develops a new political strategy to foster the rule of law internationally:

1. The German government should not underestimate the political and cultural fragility of the rule of law. One cannot take its existence for granted, in Europe or elsewhere. A strategy protecting or developing the rule of law should be mindful of the gravity of the challenge. Rising to this challenge could include work that identifies and reasserts the normative and political foundations of the idea and practice of the rule of law.

2. Recent developments which have weakened the rule of law in Europe illustrate how difficult it is to establish and maintain the rule of law and how many cultural and political preconditions it requires. Any attempt to foster the rule of law should therefore pay close attention to these rich political and cultural preconditions. A strategy focused too much on legal technicalities will not be sufficient for this task.

3. German officials should closely study the concrete ways in which the rule of law is challenged, in Europe and in other parts of the world. Analysis and critique of the political and legal instruments that undermine the rule of law is an important dimension of any work to strengthen and foster it.  

4. Analytical work on the current threats to the rule of law can also help to define the line between the legitimate pluralism of realizations of the rule of law and illegitimate forms of arbitrary rule. This is very important to avoid unwillingly fostering the latter when intending to promote the former.

5. Certain forms of the rule of law are conceivable without democracy. Democracy, however, is dependent on the rule of law. This relation should inform any attempt to foster and develop the rule of law, for three reasons: First, as the protection of existing structures of democratic participation and their further development are very important aims in themselves, the support for the rule of law gains another important rationale and urgency. Second, this relation may inform the focus of any political strategy, preferably paying special attention to areas that are particularly important for democratic developments. This includes fundamental rights that are the normative infrastructure of democracy like free speech, the separation of power, or independent courts enforcing the law in these areas. Third, attacks on elements of the rule of law are sometimes justified by democracy – the argument goes that the people, not lawyers should rule. Such arguments can be countered by underlining the important role of the rule of law for democracy. This will help to dispel doubts about its legitimacy and justify efforts to promote it.

Menschenrechte Rechtsstaatsförderung

Matthias Mahlmann

Prof. Dr. Matthias Mahlmann is chair of Philosophy and Theory of Law, Legal Sociology and International Public Law at the University of Zurich.