Prof Christopher May
The rule of law is often presented as preferable to the rule of men or the rule of force, and in the last couple of decades has become a central part of the common sense of global politics; an unquestioned statement about the world in which we live. To understand its appeal we need to recognise that it can mean different things to different people, but also that its central normative elements underpin the dominant view of the operation of the global market economy.
As I set out in my recent book The Rule of Law: The Common Sense of Global Politics there is a continuing debate about the rule of law might actually mean, but it is easy to identify some key relatively consensual elements:
- rule by law; state actions are subject to the law;
- law should be formalised (clear, certain/fixed; accessible and predictable in application);
- democracy (consent can determine or at least influence legal actions)
- law is subordinate to justice;
- individual rights and liberties are to be protected;
- human rights are respected, as are group rights;
- there is an independent judiciary;
- administrative and other independent bodies are responsible for reviewing legal process.
These elements are not settled, so even though it is a standard that states are often held to, there is little agreement about what the rule of law actually means; each of these elements can be differently stressed by different commentators or politicians with some of the latter elements often down played or ignored. Thus, despite its frequent rhetorical deployment, there is really no consensus on what the rule of law might mean, with views arrayed along a continuum that ranges from characterisations of the rule of law that are essentially procedural (only requiring legal like mechanisms to be in place) to those that seek to make the rule of law coterminous with liberal democracy and human rights (often referred to as thicker definitions).
Despite this large variance in understanding the rule of law, it has become a common sense in global politics, something that all states and ideologies seek to appeal to or at least appear to embrace. As the global political realm has become increasingly patterned by law like instruments and institutions often gathered together under the rubric of global governance, all requiring some acceptance of the rule of law for their legitimacy, so the rule of law has been normalised. In the last century or more the range of international organisations has grown, partly linked to the globalisation of markets (which need some sort of predictability and regularity to flourish), and partly because of the coordinated political action of the major states and the United Nations (seeking non-violent ways to manage the balance of political power). However, without an overarching sovereign political authority, the legitimacy of these organisations has come to rest on legal methods as an acceptable way of managing decisions and actions, while demonstrating fairness and holding in check the domination of the most powerful states.
This appeal to the value of legal instruments is evident in what some have referred to as the neo-Liberalisation of the global economy. If the global economy is becoming increasingly patterned by a form of market relationships that are patterned on, and (re)produce the structures of liberal capitalism, then an appreciation of the rule of law as a common-sense also helps us understand how some of these political economic mechanisms are depoliticised and rendered technical. In thicker definitions of the rule of law, many of the underlying normative elements of capitalism, from the expectation of contracts being honoured to the acceptance and value of property rights, from the rejection of corruption to the need for predictability about the character of (market) interactions, all contribute to the confidence we can have in the market as a device that will deliver what we expect. The rule of law removes these expectations from the political understanding of the capitalist market economy and presents them as general normative values of the good society, a society where the rule of law can be said to exist.
Interestingly criticisms of capitalism and posited alternative social organisational settlements often seek to retain an appeal to the rule of law due to this role as technical social standard. Countries such as China and Iran who many in the West would regard as having a range of governance issues that would suggest the rule of law is at the very least compromised, seek to maintain that their rule of law is a valid as the dominant depiction. As we move away from the procedural to the more substantive (or thicker) elements of the rule of law it is clear that social, cultural and political differences remove much of the shared appreciation of what the rule of law is and may become. This is to say claims around the rule of law involve both a claim for universality, and are the terrain for the discussion of difference.
The global system is increasingly governed by legal structures, and the expansion of the global capitalist market economy has reinforced the appeal of the rule of law’s procedural elements without necessarily pushing its more substantive/thicker aspects. Thus despite now being a major element of the common-sense of global politics, the rule of law itself is a varied and flexible concept that has its own political economy. The key question(s) that remains are: how much normative or substantive content can the rule of law norm contain while remaining a universal political norm?; and how thin can the rule of law become before we no longer regard it as being the rule of law (becoming merely rule by law)? The rhetoric of the rule of law does much to obscure these issues but equally has allowed the term to become a common currency of global political conversation.
Christopher May, Professor of Political Economy, Lancaster University, UK.
You can find out more about Christopher’s research at http://www.lancaster.ac.uk/fass/ppr/profiles/christopher-may