Undefinable Rule of Law

Thomas Lawrence: Georgiana Maria Leicester as Hope // Public domain

Recently, one of the hot topics in the European Union (EU) has been the rule of law. Certain Western European politicians think that in Hungary and Poland the rule of law has been damaged to a degree that is not compatible with the values of the EU, and that this change needs to be sanctioned. Meanwhile, the politicians of the criticized countries argue that the rule of law can differ between countries and is hard to define.

“It seems as if the criminal codex consists only one sentence, that reads “One has to be a good person”. But who can tell us and to others for certain whether we are good people or not. The neighbor, the relative or foe? By the way, is there even a general, valid for all times and places definition of who a good person is? (…) It is clear from the above alone that the concept of the rule of law may or may not mean much. What is the rule of law? (…)”

Source: Varga Judit , Magyar Nemzet 3/13/2021

If we want to briefly define the rule of law, we have an easy task, since the rule of law means nothing more than a state where law is the greatest power. This definition also includes the prohibition of arbitrariness, since no one can stand above the law, not even the one who created it.

Nevertheless, if we want to explain the concept, we really have a difficult task. To truly understand the concept of the rule of law, we also need to know how it has developed.

The idea of the rule of law dates back to a period of civil transformation, with the aim of building basic guarantees in order to eliminate feudal arbitrariness. In the course of these struggles, the principles and criteria that are still relevant today were born.

The rule of law in England, the due process clause in the American constitution, the German rule of law, the Rechtsstaat, and the French État de droit all contributed to the rule of law becoming a definable, criteria-defined, constitutional concept.

The term was first used in German state theory, but elements of it also appear in Kantian philosophy of law. It is based on the concept of freedom, equality, and civic independence.

In the twentieth century, the concept of the positivist rule of law replaced the concept of the established rule of law, and Labanda defines the concept of law as follows: “Law is what is law. The law is what is formally issued through due process ”.

At the same time, the idea of the rule of law also implies that the citizen should also enjoy legal protection against the state. A XX. Century Lon L. Fuller, an American philosopher of law, defined the rule of law as follows:

There should be general rules. Disputes should not be decided on an ad hoc basis. There should be special rules in addition to the general rules, but within reason, so that there is no over-regulation.
Legislation should be forward-looking. Total prohibition of retroactive effect. This is important so that the legislature does not abuse its norm-making ability and does not arbitrarily change the law retroactively. This also means that legislation must be predictable so that citizens can plan.
Legislation must be communicated to the community. It must be made understandable and accessible to everyone.
Legislation should be clear and easy to understand. Compliance with the standards can only be expected from citizens if they are aware of the standards and the penalties for violating them.
There can be no contradictions between the laws. If there is a contradiction, stronger legislation should always be taken into account. At the top of the legal hierarchy is the constitution of the countries.
Legislation must not require impossible behavior that is difficult to comply with. It is important to keep citizens close to the legal system. Neither the Infringement Act nor the tax legislation should impose conditions that are impossible or even unreasonable to anyone according to common sense. Such “norms” motivate citizens to refuse to follow the rules or to cheat the rules, and this state provides a very fertile breeding ground for citizens to create their own rules.
Legislation must, within the limits of reason, represent permanence, which means that it must not change too often.
There must be consistency between the published rules and their actual application. If there is no consistency, it can also be a kind of loss of confidence on the part of the citizens, and without confidence in the legal system, we cannot talk about real rule of law.

Among other things, Fuller’s criteria underpinned the fact that the Venice Commission of the Council of Europe (officially the European Commission for Democracy through Law), in its 2011 report, set universal criteria for the rule of law in line with European values and the present age. The Commission was established in 1990 with the aim of assisting the constitutional processes of Eastern European countries.

Its members are highly knowledgeable judges, constitutional lawyers, jurists, and academics. It has the power to issue opinions and proposals, which are not biding, but the Member States regularly accept the proposals of the Venice Commission. The report was preceded by the Copenhagen Treaty, the Maastricht Treaty and other EU and international treaties.

These treaties were important not only for the Commission and unavoidable in the drafting of the report – but also for the signatory countries, as they committed themselves to upholding the rule of law and human rights by adopting these treaties.

The 2011 Report on the Rule of Law defined the following criteria as the rule of law:

rule of law, ensuring legality;
the requirement of legal certainty;
prohibition of arbitrariness;
independent judiciary;
protection of human rights;
equality before the law, non-discrimination.

It can also be read from the previous paragraphs that the rule of law is a complex concept that is not only a philosophical but also a constitutional and political concept.

The latter means that politics can reshape the legal framework, can add to the concept, namely with principles and other knowledge, but it can also narrow down or reduce the concept by reinterpreting the points. This can lead to a damage in the rule of law.

In the former, the Western states can be cited as examples where the values of Western liberal democracies also adhere to the rule of law, in the latter, Poland or Hungary can be mentioned as examples, as in these countries, “stone-engraved” rule of law has been spectacularly relaxed in recent years. This is demonstrated by the 2020 report of Freedomhouse, in which Hungary was determined a partially free country.

In summary, the rule of law is a definable, multidisciplinary, complex concept, the criteria of which are clear and clearly understandable, and therefore also enforceable. And why is the politicization of the rule of law a “dangerous game” or a double-edged sword?

Because while violating the rule of law may give the current power more room for maneuver, making it easier for the current regime to consolidate its power, in the event of a possible takeover, the next new political elite risks being held accountable within or outside the rule of law.

Written by Péter Kerekes – an intern at the Republikon Institute. A political science and a law student at the University of Szeged