The conventional wisdom on the value of the rule of law actually masks uncertainty about its purpose and beneficiaries
The rule of law is often presented as preferable to the rule of men or the rule of force. Indeed, in the last couple of decades it has become a central part of the ‘common sense’ of global politics – an unquestioned statement of truth about the world in which we live. To understand its appeal we need to recognise not only that it can mean different things to different people, but also grasp how it links up with how we expect and hope that the modern capitalist market system works.
As I set out in my recent book, The Rule of Law: The Common Sense of Global Politics, although there is a continuing debate about what the rule of law might actually mean, it is easy to identify some key relatively consensual elements:
- rule by law, with state actions 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.
For all this, these elements are not settled. Even though it is a standard that states are often held to, there is little real agreement about what the rule of law actually means. The various elements are often differently stressed, or some even downplayed. In substance, the many commentators and analysts offering us their views are arrayed along a continuum that ranges from characterisations of the rule of law as essentially procedural (only requiring law-like mechanisms to be in place), to those seeking to make it fully coterminous with liberal democracy and human rights.
Despite this large variance in understanding, the fact that the rule of law has become a common sense is at least partly down to the professionalisation and legalisation of global politics. Increasingly, the global political realm has become patterned by law-like instruments and institutions, often gathered together under the rubric of global governance and requiring an acceptance of the rule of law for their legitimacy.
In the last century or so, the range of international organisations has unquestionably grown, partly as a result of the globalisation of markets and partly as a consequence of coordinated political action on the part of the major states. In the absence of an overarching political authority, the legitimacy of these organisations has come to rest on a combination, on the one hand, of the acceptance of legal methods as a way of managing decisions and actions and, on the other, of the professionalism of their administrators who generally adhere to legal constraints.
But this is not the only reason for the rule of law becoming a common sense of global politics; it’s also linked to the globalisation of a particular liberal idea of capitalism. In their book Animal Spirits, George Akerlof and Robert Shiller set out an account of contemporary economics that seeks to re-establish a central place for human psychology in the appeal of this liberal model of economic development (they take their inspiration from the work of John Maynard Keynes, from whom they draw the phrase ‘animal spirits’). In fact, each of the five elements that they regard as supportive of the growth and development of capitalist market economies has analogues in the rule of law.
For example, they discuss the need for confidence about the future to ensure a healthy and developing market society. Here the rule of law’s focus on predictability and formality is crucial. Knowing that their economic relations are shaped not by personal fiat but by neutral legal mechanisms encourages people to enter into market arrangements with those they do not know personally, confident that these relations are governed by a system that is predictable.
Moreover, this non-personal rule (and its link in many accounts to democracy) allows people to believe that the agreement that they are entering into will not only be fairly adjudicated but also that the structures in which markets operate are largely fairly governed. Alongside its appeal to fairness, the rule of law to a large extent also constrains corruption and bad faith, protecting market actors from unjust actions and deceit about the character of the market relation they have entered into (from the question of the fairness of employment contracts, to the authenticity of the claims made about products that have been purchased). Again, this helps us trust the market to operate in a way that is predictable, removing the arbitrary need for bribes or special considerations.
Akerlof and Shiller put a lot of weight on the stories that we tell ourselves about the capitalist market economy. The rule of law needs to be seen as a powerful part of that story, underpinning the willingness to enter into market relations with unknown others; there is a neutral authority that (we might say) holds the economic ropes. Lastly, they suggest that money illusion helps an acceptance of market values (we discount inflation in the short term and focus on nominal prices). This parallels what I have called ‘legal illusion’: for, despite us knowing that laws are being changed and passed by parliament on a regular basis, we tend to think of the legal system as a stable structure, which underpins these other elements but most obviously offers a sense of predictability.
As such, there are a number of reasons that can be adduced to explain the expansion of the appeal of the rule of law in recent years. It didn’t just happen. Specific agents (such as lawyers) have worked to expand its appeal and, accordingly, the global system is increasingly governed by legal structures. Crucially, the expansion of the global capitalist market economy has reinforced the appeal of the rule of law’s central elements. Despite now being a major element of the common sense of global politics, the rule of law itself has a political economy that we cannot ignore.
About the author
Christopher May is the author of the first independent book on The World Intellectual Property Organization (Routledge, 2007).