Populism and the Rule of Law

(This is the edited text of a speech given online at LinkLei Academy.)

I should point out that these views all my personal views, but I hope still valuable despite that.

Like all lawyers, we are obsessed by defining things. It’s important to understand exactly what we mean. There are as many definitions of the rule of law as there are people who have considered the rule of law. I often say if I asked 7 lawyers to define the Rule of Law I get 8 different definitions. In fact some institutions, for example the United Nations, seem to produce a different definition every time they look at the subject. 

Most organizations have approached the subject by getting groups of people together and reaching some kind of compromise agreement. It struck me, given that Rule of Law is a fundamental organizing feature of a successful society, a different approach might be helpful. We should be asking “what has the experience of world societies shown us that the rule of law means in practice?”

In fact, the origins of the Rule of Law date back far into history. In other blogs and articles I go into much detail about the historical and global context of the Rule of Law. The Code of Hammurabi, Islamic law scholarship, Confucianism, Plato, in India through the Upanishad series. In the UK, Magna Carta and that document’s influence on the 5th and 14th Amendments of the US Constitution. It is clear that the Rule of Law is a global concept.

One of my ambitions is also to make the message as simple and easy to communicate as possible. The more people who understand it, the more chance we have of acceptance. If the definition runs to 15 pages of tightly written legalistic compromise text we will convince very few people. So history and other attempts to define the Rule of law lead to just 4 very simple concepts. These concepts become even more important later when I consider Populism.

Firstly, the Rule of Law basically means that “everyone is equal under the law”. Basically, it means that the law applies to everyone in the same way no matter who you are. 

But that is only part of it. To have a system where the Rule of Law functions effectively three additional things are required – making up our four principles.

The law should be properly published and accessible – without knowing what the law is, you can’t enforce it. Without knowing what the law is, you can’t demand its protection. Without knowing what the law is, you can't really have a fair shot at complying with it. This principle implies an automatic inclusion of a rule against retrospective liability. 

The next point is that the law must be Administered by an impartial judiciary. That means judges who have no interest in which side wins as long as it is according to the law. They have nothing personally to gain by the outcome and are not compelled, because of external pressure by any outside party, to come to a specific decision. In many parts of the world, a subset of this is the fight against corruption and in some other areas against political interference.

The final element is Remedy. The Rule of Law MUST provide for reasonable access to reasonable remedy. That seems to me simple logic. Not having a remedy for your grievance means the law can simply be ignored. If there are no consequences to ignoring the law, then you don’t really have any law. This especially means also having a remedy against the government, or other people in positions of power, whoever they are. 

People use different words to describe it, but I think all the various definitions mean or incorporate what I’ve just said. I will now very briefly address a couple of points I have left out of my definition that you may find surprising, Human Rights and Democracy.

First, let me address human rights and explain why it doesn’t appear in my definition. In part, I think it is implicit in the establishment of the rule that everyone is treated the same under the law; the removal of arbitrary power and the like. But, briefly, Human Rights take the forms of rights which are only exercisable if you have the foundation of the Rule Of Law.

Second I suggest that Democracy is not a crucial, or necessary element, of the Rule of Law. It is an argument in logic and directly connected to the other topic I will address a little later; Populism. I suggest it is not logically possible to have an element of a definition which actually harms the thing you are trying to define. By which I mean the instances through history where Democracy has been extremely harmful to the Rule of Law. 

As Lord Acton famously said, “Power tends to corrupt, and absolute power corrupts absolutely”. So we may not have actually seen an alternative to representative Democracy that is capable of abiding by the Rule of Law in practice because of human frailty. And yet that same human frailty seems to be damaging the Rule of Law. It may be that a properly functioning Democracy is the only practical guarantee of the Rule of Law. As Sir Winston Churchill equally famously said “Many forms of Government have been tried and will be tried ……. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except for all those other forms that have been tried.…”. However, the contrary is certainly not unfeasible or impossible. 

Let me be absolutely clear; I am not arguing that democracy is a bad thing. That would be a very different point. I’m just making a rather technical point of definition. I quote from a paper called “Corruption, Good Governance & Economic Growth” by Vehovar & Jager (2003) who said 

“…. democracy as such does not represent a guarantee for the development of a particular society, as is shown by some of the Latin-American countries, and as it probably will be shown by some, or most, of the Central and Eastern European societies…” How prescient.

Sometimes, people have said to me “but my country has laws, what's the problem?” This leads to the difference between Rule of Law and Rule by Law. In circumstances where you have laws, you have a starting point = Rule by Law. But unless you have the four criteria I have outlined, it cannot become the Rule of Law. So simply put, the difference is that Rule by Law is a situation absent one or more of the Rule of Law criteria.

Prosperity and the Rule of Law

Where the instability of a legal system reaches high or endemic levels, investment cannot take place because the investment is incapable of being protected. Low investment results in low economic growth. Let me put that anther way; if you can’t get your contract fairly enforced, why would you contract? If you can’t protect your investment, why would you invest? The simple answer is that, on a comparative basis, you don’t.

I draw your attention to the graphs displayed on the @LexisNexis Rule of Law website and the graphs displayed on the World Justice Project websites showing the close correlation between the Rule of Law and a wide variety of socio-economic measures.

So, with that backing, let me emphasize again, the high level of correlation you can see between the Rule of Law and socio-economic measures that lead to a strong and prosperous society. This close relationship is way beyond statistically significant. This link to economic and social prosperity is crucial when considering the impact of “Populism”.

Populism

As always, let’s try to define what we are talking about. It is through the definitions that we can determine what effect one has on the other. Populism is a term that is often intended to be derogatory. It is used in reference to a diverse variety of movements and beliefs. 

It has been said that populism is one of the most widely used but poorly understood political concepts of our time, I would also say that about the Rule of Law. In other words, it is like any term that finds its way into politics. Politics is about making points, rather than accuracy!

Because of its intended derogatory inference, the term "populism" is often conflated with other derogatory concepts like demagoguery, extremism, and as something to be "feared". It tends to be associated with views or movements that challenge traditional values, rules and institutions and orthodoxy. 

Then, of course in a classic political move, some people who are referred to as "populists" try to embrace the term while seeking to shed it (ie themselves) of negative connotations. The French far-right politician Jean-Marie Le Pen for instance was often accused of populism and responded that "Populism is taking into account the people's opinion. Have people the right, in a democracy, to hold an opinion? If that is the case, then yes, I am a populist." That is an attempt at redefining the word “Populism” to mean “Popular”. 

As is traditional in any talk I give, here is my simple definition of what I mean by populism. The word is intended to encompass the following set of beliefs or political approaches.

1)    The reduction of complex problems into very simple solutions.

2)    Those simple solutions usually involve identifying an “enemy of the people” that must be conquered. This "enemy" is the cause of the problem. 

3)    Anyone who disagrees with the leader(ship) is identified as either an enemy of the people, a traitor or enemy of the state. Thus, the first liberty to disappear is usually the freedom to speak.

4)    Detailed proposals are not required and are avoided. The more detail that is provided, the more scrutiny the idea comes. The response to scrutiny is the same as the response to criticism. It must be silenced.

5)    Current orthodoxy is challenged. It is seen as a cause of current problems (along with the enemy that orthodoxy has previously failed to challenge and defeat).

6) Only a powerful visionary leader, who can smash orthodoxy and is not constrained by current structures (and eventually no longer constrained by anything), can deliver the promised success. 

Democracy

Populism is so interrelated with democracy as makes this next point unavoidable. Often populism, as I have defined it, appeals to social groups who feel excluded from political decision making.  Populism becomes a kind of (vengeful) absolute majoritarian philosophy often opposed to the safeguarding of minority rights or constraints on the leader(ship). Most populist leaders either start, or end, with the notion that pluralism and constitutional limits (indeed, anything with which they disagree), should be ignored. As a necessary consequence the first and most serious of the principles abandoned are elements of the Rule of Law. It is the slippery slope towards, first, as John Stuart Mill described, the "tyranny of the majority" and then ultimately the tyranny of a ruler.

Because Populists present themselves as the true representatives of the people, they often interpret their electoral support as a mandate authorizing them to ignore or disrespect institutions enshrined in the rule of law or democratic constitutions. Constitutional checks and balances against the abuse of executive authority have, in their arguments, not only failed to make elites responsive but also enabled elite conspiracy. Therefore these checks and balances, in the view of Populists, cannot be used to obstruct the "will of the people" (ie the leader). The direct personalistic link between Populist leaders and the people renders state structures and institutions obsolete and should be overridden. Ultimately they implement reforms to weaken existing institutions. 

But when populists take governmental power, they are faced with a challenge in that they now represent a new elite. In such cases populists retain their anti-establishment rhetoric by changing their definition of "the elite". They allege that "real power" is not held by them or the government they now lead but some other, usually secret, powerful forces who continue to undermine them. So where the policies they implement end in disaster (as they must when abandoning the Rule of Law), it remains the fault of the secret conspiratorial "elite".  

Conclusions

So what conclusions can we draw from all of this. Firstly, that Populism as I have defined it is necessarily opposed to the Rule of Law. This is because the Rule of Law, when operating effectively, is above governments, rulers, demagogues, visionaries, national saviors or anyone else. This ultimately conflicts with the populist and their simple solutions requiring them to override norms and rules. In a situation where the Populist sees themselves (and their supporters also see the Populist) as the sole savior of their society, being restricted by rules such as the Rule of Law cannot be permitted. What do we see them do?

As night follows day, they threaten the independence of the Judiciary. Ignore basic principles of equality. Deny access to remedy and ultimately, and inevitably, bring ruin to their nation and to their people. Why inevitable ruin? Because of the unbreakable link between the Rule of Law and the huge range of socio-economic measures I referred to earlier.

I believe there is only one solution; everyone who can must constantly strive to explain what the Rule of law is and, equally importantly, why it is important to every individual, even the excluded and forgotten in society. The Rule of Law is not about politics. The rule of law is the building block to enable society to function successfully. Our only path to success is through the Rule of Law and the Rule of Law is what will ultimately guarantee prosperity and security for all.