The Rule of Law

IBA Annual Conference Rule of Law Symposium – Rome 2018

Keynote Speech - Ian McDougall

I’m very pleased to introduce to you the subject of “The Rule of Law”. And why do I say “introduce”? Because, it amazes me that Law is taught in so many places and yet the “Rule of Law”, as a subject, is taught in so few places. My personal mission is to change that, even if just a little, for all of the reasons that I will explain during the course of this talk.

I know many of you are here today because you are interested in the subject. Some may be here because you are passionate about the subject. For those who are inquisitive let me instill a passion for the subject. For those already passionate about the subject, maybe I can give a focus as to why! 

I love talking about the law! I know, when you are in the middle of practice, it is easy to get a bit ground down in the day to day rhythm of billing, file management, traveling to the court for a not very interesting application or whatever it may be; another day, on and on.

But, let me give you a different view.

I think the Law is one of the most fantastic and wondrous achievements in the history of human civilization. Think about it for a moment; to follow a purely philosophical concept by which all people’s lives can be governed; based on reason, reasonableness, and a broad-based consent, even if that is only instinctive, is a wonder! Truly amazing. 

When we discuss the law, and you can lift your head just for a moment above the details of this piece of legislation or this court judgment, you should remember that we are discussing a subject that – as I will show you - delivers peace, prosperity and social advancement wherever it is strongly felt. 

Also, before I start on my topic, I just want to make a brief comment on the notion of Justice (as distinct from the “Rule of Law”). That is an entire subject on its own! I can’t possibly cover that in a talk like this. There are so many aspects of the notion of Justice. The theory of natural justice/law, utilitarian approaches, social contract arguments and so on. 

But for our purposes I have a simple view of the difference and the connection; Justiceis what is delivered by the Rule of Law. No Rule of Law, no Justice. 

So I am going to discuss;

·     the origins of the Rule of Law  - the history is important as I make my case for universality;

·     What it means – in other words, to define what we mean by Rule of Law  - in fact I going to limit that scope even further and say I am going to define whatI and LexisNexis mean by the Rule of Law;

·     Related issues such as the economic impact of the Rule of Law – that’s important because, apart from thinking that this is morally good, I want to show the economic necessity of the Rule of Law. Yes, I’m going to show that it also directly impacts your pocket! A Business case for the Rule of Law!

·     How and why the legal profession is changing and what that means for the Profession and the Rule of Law

When this “campaign” – Business for the Rule of Law – was started (which, I am proud to say, eventually became a joint project with the United Nations), I made a number of assumptions…Wrongly!

First, I just assumed that everyone would immediately know what I was talking about! Then, secondly, that if I travelled to different countries, lawyers everywhere would understand what I was talking about in the same way. 

Actually, the Rule of Law isn’t as well understood as it ought to be; the number of definitions appears to exceed the number of people who write about the subject. Also, if you look at different legal systems around the world, even the expression, the words, “Rule of Law” can have very different meanings. For example, I remember people in one audience scratching their heads and saying “but it’s obvious! We have laws; what’s the issue?”

I will answer those points as I go through my agenda and by giving a simple explanation of the difference between the “Rule of Law” and “Rule by Law”.

Origins of the Rule of Law

I’m going to explore the history first because I think you will see how the definitions come through the history of the subject.

The origins of the Rule of Law date far back into history. 

For example, the Code of Hammurabi, promulgated by the King of Babylon around 1760BC, is one of the first examples of the codification of law, presented to the “public” and applying to the acts of the ruler. That is an important concept to which I will return later.

In the Arab world, a rich tradition of Islamic law scholarship embraced the notion of the supremacy of law. This is an important element of the Rule of Law which, again, I will be returning to later.

Core principles of holding government authority to account, and placing the wishes of the populace before the rulers, can be found amid the main moral and philosophical traditions across the Asian continent, including in Confucianism.

In one of Plato’s books “Laws”, he summarizes his stance on the Rule of Law: 

“Where the law is subject to some other authority and has none of its own, the collapse of the state is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise…..”

Plato describes the worst possible form of state as the state of “Tyranny”(in “The Republic”). He states that 

“In a tyranny, no outside governing power controls the tyrant’s selfish behavior.” 

Tyranny always leads to a situation where arbitrary power causes unfairness, corruption, injustice and abuse. And here it is worth noting that it is not only the execution of power that is the cause of many problems. It is also the unwillingness of those in power to relinquish it. When a President alters a constitution to enable him (It is usually a him, by the way!) to stay in power indefinitely – the Rule of Law is under threat. 

Why?Because the longer a particular person or a party remains in power, the higher the prospects of corruption. One of the main barriers to corruption is the possibility that the people you are bribing will not be in power for very much longer. That means there becomes very little point in continuing to bribe them.

In India, the concept of Rule of Law can be traced back to the Upanishad series of writings where it is said that Lawis the “King of Kings. It is more powerful and higher than the Kings and there is nothing higher than law.” For those of you don’t know, the Upanishad writings form a considerable body of Hindu thought.

Magna Carta[1]was the first known document imposed upon a King by a group of his subjects (the feudal barons or early aristocracy) in an attempt to limit his powers by law and protect their rights. The Great Charter was the start of a long process that led to the rule of law in England and its influence was, and is, still felt far beyond that windy field in Southern England. 

As an example of Magna Carta’s influence, I refer to the so called “Due Process” clause in the US Constitution.[2]

I could go on. There are many more historical and richly diverse examples from around the world. But hopefully you will now see how my little historical run through plays into the modern thoughts about the Rule of Law. I hope you also see that I have made my point about the global nature of the concept. 

Definition of the Rule of Law

There are, in fact, many definitions of the Rule of Law.[3] At the United Nations, Rule of Law appeared in the Preamble to the Universal Declaration of Human Rights (1948). 

The report of the Secretary-General of the United Nations called the Rule of Law and transitional Justice in conflict and post-conflict societies contains a definition. The main problem with many of these definitions is that they are prohibitive in their complexity, clauses and plain understandability. I get it; the UN has to compromise amongst 190-odd members. Verbiage is a consequence. But that doesn’t help communication, understandability or acceptance by the population at large. 

Subsequently, two reports on the subject issued by the UN in 2002 & 2004 discuss the point further. 

They also demonstrate the difficulty. The first one refers to 

-      an independent judiciary, 

-      independent human rights institutions, 

-      defined and limited powers of government and fair and open elections, (I will return to the subject of democracy a little later!)

The second report (by the same body, you will note) focuses on the elements of 

-      quality of legislation, 

-      legal certainty, 

-      procedural and legal transparency, 

-      avoidance of arbitrariness, 

-      separation of powers.  

In 2005, the IBA opined on the matter. In September 2005, the IBA issued a report called “Commentary on the IBA Council “Rule of Law” Resolution of Sept 2005”. Obviously referring to the IBA Rule of Law Resolution of that date.

The Resolution states;

“An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment, a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable.”

These all sound very reasonable but note, I am in search of universal principle applied in all circumstances. Anything more than that becomes politics. For example, “a public trial”? Well, surely not when there are issues of national security, or such a thing may put lives at risk? 

What does “proportionate” mean in the context of punishment except through politics?

To name but two issues.

So let me try to strip all that down to some very simple concepts which I believe the history of the subject shows to be of universal application. Also, remember another of my objectives; the widest possible adoption and acceptance. To this end the message needs to be;

-      easily understandable;

-      Of universal application;

-      Not founded in any one region’s philosophy or society as far as possible.

I have four principles for you. Four that I have discerned from all of that.

Firstly, the Rule of Law basically means that “everyone is equal under the law”. You may have picked up that concept when I was talking a moment ago about how kings were subject to, and not above, the law. Basically, it means that the law applies to everyone in the same wayno matter who you are. 

Secondly, the process itself must be;

?       Administered by an impartial/independent 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, as a result of external pressure, to come to a specific decision – a subset of this might be the fight against corruption or political interference in the judicial process;

Thirdly;

?       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. Many would also argue that access to legal advice which remains privileged as between clients and legal advisor is an important part of this element because experts are usually those who have greatest access to information – although in many parts of the world that is also a struggle. However, access to legal advice and matters such as pro bono provision of legal advice is another huge topic and I’m not going to address that here;

The final, fourth, element I want to draw your attention to is

?       Remedy. The Rule of Law MUST provide for reasonable access to reasonable remedy. If I add the words “in circumstances of equality” you can see, for example, how the four principles are actually interconnected.

The remedy point 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 at all. This means even having a remedy against the government, or other people, whoever they are. Such remedy being administered by an independent judiciary. 

People can use different words to describe it, and through history they frequently have, but I think they all mean, roughly, what I’ve just said. So, in the interests of being provocative, let me also address a couple of points that you may find surprising that I have left out of my definition;

* Human Rights

* 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. I also think that “Human Rights” is a fascinating subject all on its own. But let me explain some problems for universality of the Rule of Law. 

Maybe there is a small element of Human Rights that can be universally agreed in all cultures and systems; the right not to be killed (that’s qualified), the right not to be imprisoned without fair trial (the due process I mentioned earlier – but frequently qualified), the right not to have your property seized without process of law (although communists might not agree the property ownership element of the last point!). But what about other things beyond that; Abortion? The right to a home? 

What about the right to education? Is that a human right? If you had asked someone if the right to education was a Human Right in the 1500’s then the answer would almost certainly have been no. But now? Will the right to access to the internet become a Human Right in future? If so, then human rights are things that develop and change like the wind through time. They are not absolutes. My quest here is for an absolute and timeless foundation. Human Rights, right though they are, are not historically immovable.

Indeed, at the United Nations, the Rule of Law appeared in the Preamble– the Preamble - to the Universal Declaration of Human Rights (1948). 

That says;

“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,”

So, ultimately it would seem that the UN agrees with me if we are not to pervert the English language. If Human Rights are dependent upon the Rule of Law (as I say they are) then, by definition, they can’t be the same thing. It is the Rule of Law that protects and is the foundation of Human Rights.

Now let me turn to the second of my controversial exclusions; democracy. I suggest that democracy is not a crucial, or necessaryelement, of the Rule of Law. In Plato’s “Republic”, for example, he envisages a system of government where enlightened people rule for the benefit of all and there is no need for democracy. Is it possible to imaginea hereditary ruler (or some kind of unelected sole ruler) who rules in accordance with the Rule of Law? I think it is possible to imagine it. Have we actually seen examples of elements of the Rule of Law engaged in the absence of democracy? I think we have through history.

We might not have actually seen the complete and full implementation in a benevolent dictatorship yet, but it is certainly possible. However, the more powerful argument is the converse. You cannot have a subject where one of the elements that define it is actually harmful to the thing being defined.

Have we seen democratic pressure forcing the rule of law to be sidestepped or diminished. Have we seen, in the rise of populism, an open abandonment of Rule of Law norms which are supported by popular movements? Of course we have. Have we seen democratic pressure supporting a “decisive” or “strong” leader in sidestepping the principles of the rule of law. Of course we have. We only need a quick look at the news from around the world.

Democracy, in itself, has never been aguarantorof the Rule of Law. So I will follow a rule of philosophy known as Occum’s Razor[4]which says anything that isn’t strictly necessary to support a proposition, or axiom, can be discarded. I discard democracy as not being astrictly necessary elementof the Rule of Law. That’s one for you to discuss! 

I am not arguing that democracy is a bad thing.That would be a different point. I’m just making a point that democracy is not strictly, or always, supportive of the Rule of Law and therefore can’t be part of its definition. Is democracy the least worst system so far devised? Maybe, but even that low bar can sustain it in the definition when it also harms the thing defined.

So, from this something else must become apparent to you; I am making no comment upon political structures or systems of government. In fact, I am taking discussion of political systems or individual governments out of the debate altogether. The rule of law is dependent upon itself and not particular systems.

Let me be even clearer; this is NOT the west telling the rest how to behave. Mistakes have been made in the past by trying to impose foreign systems of government without understanding the cultural and historical background of the places concerned. We take the approach, by removing politics from the Rule of law, that we can make advances for everyone everywhere regardless of their circumstances. 

I hope, in some way, this addresses the notion of “Substantive” Rule of Law as against “process” Rule of Law. Others sometimes call this distinction a “broad” definition or a “narrow” definition of the Rule of Law. “Thick” or “thin” defintions. There are many ways to describe the differences. 

In fact, there is an excellent paper written by Dr. Ellis, the Executive Director of the IBA, called “Toward a common ground definition of the Rule of law incorporating substantive principles of Justice” which is worth a read in this area. Published by the University of Pittsburg Law Review. He clearly, even in the title, makes it clear that a broad definition includes areas that can be described as more political in nature. I suggest that the broad definition of Rule of Law includes politics and the definition I am using here dies not.

The Broad definitions, as I think the writers admit, include notions of justice. Whereas, the narrow definition (in other words, the definition I promote) is a concept which leads to Justice. But, even the notion of Justice becomes wrapped up in politics. To make an advance, I call upon you, the world, anybody and everybody, to recognize that unless you can first take the politics out of the Rule of Law you will only ever be heard by people who already agree with you. That is not advancing.

Comparative European expressions of the theory

At the start I suggested there was a difference between Rule of Law and Rule by Law. When someone says “the law rules”, the answer is usually, “well, of course”. Yet even though the expressionis open to misinterpretation, I think the concepttravels well.

The translation of the expression RULE OF LAW can cause problems itself. If I say “Etat du droit”, that can get reversed back as a “State of Law”. Does the German “Reichstaadt” do the trick? Scholars say no. Does Estadio de Derecho do the trick? It seems to me that has connotations similar to Etat du droit. I could spend an hour on this topic alone!

My point is that we must make sure we talk about the concept, not the title. When I explain what is meant by Rule of law, people everywhere get the concept. We have to avoid the situation where, simply by translation, we end up talking about different things. 

I ask you to always define the Rule of Law when speaking of it and to remember that, whatever expression is used, in whatever language, the concept we are trying to convey is;

·     Nobody is above the law; 

·     independence of judiciary;

·     The law must be accessible or attainable and not be secret;  and 

·     Accessible remedy.

Which leads me to the difference of the Rule byLaw and the Rule ofLaw. I hope to be able to provide you with a simple answer to that. Like a mathematician, my answer is axiomatic. Rule byLaw is a system where there are laws, but where 1 or more of the Rule of Law criteria are missing.

You can have laws, but the judiciary doesn’t act independently. You can have laws but they are not accessible and people can’t defend themselves properly. These are examples where the Rule of Law is not strong even though there are laws.

So, it is perfectly possible to have a system where you have laws and those laws are intended to govern. That is Rule by Law. But without the four elements I have described above, you cannot have the Rule of Law.

Economics of the Rule of Law

There are three reasons why the Rule of Law is crucial. Crucial to our understanding of the subject of law, and crucial to the advancement of people everywhere.

The first reasonis one that we have been addressing; it is a logically sound and fair basis upon which a society and system of government should be based. In other words, “it’s the right thing to do.”

The second reasonis a foundational reason; the Rule of Law is the foundation of all other rights. Corporate Social Responsibility programs, Anti-Human Trafficking policies, Environment Policies, anti-corruption policies etc. etc. without the Rule of Law are just words on a piece of paper - without any real effect or power. You can’t achieve anything in all those areas without having the foundation of the Rule of Law in place. Or, at the very least, progress is delayed or obstructed. 

No Rule of Law - no contract system. No Rule of Law - no land law process. No Rule of Law - no protection against personal injury. No Rule of Law - no environmental protection, and so on. The United Nations created 17 Sustainable Development Goals. “SDG 16” relates to the Rule of Law. But all the others are founded on SDG 16.

The third reasonis one I will turn to now; the economic argument or the economic effect of the Rule of Law. 

There is a logical economic argument here. Where instability of a legal system reaches high or endemic levels, investment cannot take place because that investment is incapable of being protected. Low investment results in low economic growth. Another way of saying it is that if you can’t get your contract enforced, why would you contract? If you can’t protect your investment, why would you invest? The answer is that, over the medium term, you don’t invest and you don’t contract.

What we at LexisNexis have done is to take the Rule of Law measure as put together by the World Justice Project. This is a very extensive measure of a country’s respective Rule of Law strength based upon over 100 criteria. We then plotted a county’s Rule of Law measure against various other socio-economic criteria.

We can immediately see a striking correlation between per capita GDP and the Rule of Law. At the lower end of the graph, unsurprisingly, countries having poor Rule of Law have low per capita GDP. But it doesn’t stop there, homicide rates, infant mortality rates, corruption levels are all correlated. This the correlation is beyond doubt. To that I also add an excellent study undertaken by the law firm Hogan Lovells which concluded investment decisions taken at the highest levels are based, inter alia, on Rule of Law considerations. The Rule of Law benefits your pocket!

So, in summary, there is economic evidence that strong Rule of Law pays back a long and high dividend from an economic perspective. 

Legal Profession / CSR / Social Entrepreneurship

Now, finally let me turn to the importance of the subject to the legal profession and the imperative nature of Rule of Law to the legal profession. 

Around the world at the moment there is a concentration taking place between three areas which were not traditionally seen as aligned. They are economic, social and professional.

You do not have to go too far back in history to see that the legal profession did not view its role as having anything to do with corporate social responsibility. Instead of encouraging companies to play a part in social affairs, the legal professional’s traditional response was “I am your legal advisor not your conscience.” 

In addition, in many parts of the world where civil code predominates, the view of the legal profession has traditionally been even more strict, although there are some wonderful pioneering people trying to change that view. The traditional view has been that if the issue is not covered strictly by black-letter-law then it has nothing to do with the lawyer. 

However, in recent times, companies have become more socially aware. This may have been spurred by the rise of environmental issues and the impact that companies have on the environment. In any event, many companies commenced what are now called “corporate social responsibility” programs. 

Lawyers became involved with corporate social responsibility programs only peripherally at first. Their advice might be confined to questions like “does this CSR program expose my company to any additional liabilities?” And so on.

But there is a fundamental change happening in the legal profession around the world. Some places it is happening faster than others, but it is happening and will continue to happen.

The question therefore increasingly becomes “where can the external lawyer add value?” 

The legal adviser as legal expert is becoming mere a table stakes. It is not enough, or it will soon not be enough, to sell yourself on the basis that you are a good legal advisor. The answer starts to become simple; the lawyer has to find additional ways of being useful and adding value. The position that “I am not the keeper of the conscience” is coming under increasing threat from these trends. The lawyer now has to contribute across areas such as moral, social, and reputational. Failure to comply with International standards – so called “soft law” – can lead to catastrophic reputational harm, and thence to actual damage. It may not matter that you are “technically” compliant. How will behaviours affect reputation?

Then there is the increasing connection between what use to be thought of as CSR and the regulatory burdens placed on business – 

For example, in the UK of the Companies Act 2006, S172 states that the duties of directors is to promote the success of the companyby considering (amongst other things):

§  the impact on the community and the environment; and

§  the desire to maintain a reputation for high standards of business conduct

There is now a UK social company entity called the “Community Interest Company (CIC). Do not think of this as a “non-profit” company in the traditional sense. A CIC is encouraged to make profits (the UK Regulatory report says this). However, the assets & profit of the company must be directed to advance the stated social objectives of the company.

In India, the Companies Act 2013 (Regulations made under it) requires that every qualifying company (a financial threshold) must spend at least 2% of its average net profit for the immediately preceding 3 financial years on CSR activities. Can you see what has just happened there, suddenly corporate social responsibility activities have become legal obligations. The line is blurring all the time.

There is something similar in tax legislation in Mauritius! 

Increasingly corporate social responsibility and business, corporate social responsibility and legal matters are, regardless of previous opinions and legal professional views, areas where the legal professional has an important role to play. There is no bigger CSR imperative for business that the Rule of Law. There should be no bigger CSR imperative for lawyers than the Rule of Law. 

The point is that the legal community must talk to business in the language of business, not just in the language of law! And the language of business is also happens to be the language of the Rule of Law. As a result all those in the legal community have an important, dare I say, crucial role to play in advancing the Rule of Law for both socio-economic reasons and reasons of professional success.

You will notice a strain of thought throughout my presentation. I see nothing wrong in appealing to both altruism AND self-interest to advance the rule of law!

Summary and Conclusion

I will sum up all of my points in as simple a manner as I can. 

·     The Rule of Law has a long and global history as a concept dating back far into early history. It is not the preserve of one part of the world.

·     The Rule of Law is therefore a transferrable concept around the world, even though we may use different and often confusing expressions;

·     A difference between “Rule of Law” and “Rule byLaw”. 

·     Compelling reasons why the Rule of Law is probably one of the most important of legal concepts but also its importance in a real practical sense. When you think of the Rule of Law, at least before today, you may have thought it is a highly academic topic with little relevance to real world issues. I hope you have seen from the economic evidence that it is far more than that. It is a fundamental platform upon which all other legal notions and prosperity depend. 

It is the “right thing to do”, in a moral way, but it is also an imperative for economic development and growth. Remember that without the Rule of Law, everything you try to do will be held back. All chances of success and prosperity are damaged. 

In a report written by Gary Haugen and Victor Boutros in 2010 called “And Justice For All” they estimated that some 4 billion people around the world still live outside of the protection of the Rule of Law. That is an lot of economic potential being held back. By advancing the Rule of Law as a subject, we can do tremendous good. 

When you see news reports of the Government at home taking some arbitrary action, or trying to exclude the courts from decisions, or people from access to justice, remember that it isn’t just a problem for those involved. It easily becomes an economic problem for us all.

When you see governments taking action contrary to the Rule of Law simply for short term convenience, you are seeing the slippery slope to Tyranny. 

Though there are many challenges to the Rule of Law all around the world, the march of progress requires that we never lose sight of the Rule of Law and what it brings. Short term gain is always tempting. But short term gain can set us back for generations. The history of humanity is the climb out of the darkness of terror and ignorance, into the light of prosperity founded on the Rule of Law. 

Take the politics out of the discussion and shine a light on the benefits. That, perhaps, is the greatest contribution you can make to advancing the cause of humanity around the world.

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[1]1215AD, Runnymede, England

[2]Section 1, 14thAmendment; ‘nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws’.

[3]“a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency." (Report of the Secretary-General: The Rule of Law and transitional justice in conflict and post-conflict societies” (2004))

[4]William of Occum – Philosopher from the 1500s