20 December 2023

Militant Rule of Law

Recall the words of Odilon Barrot, Prime Minister under President Napoleon in 1849: La légalité nous tue (Legality kills us). Once again, this comes true. Or, at least, it is paralyzing the rule of law and those who would like to stand up against arbitrariness. In 1849 the statement was made to justify exceptional measures against extremists. In December 2023 the EU Commission decided to unfreeze about 10 billion Euro to Hungary, being (perhaps) convinced that Hungary has satisfied the rule of law requirements of the conditionality mechanism, because  this was dictated by the rule of law: “We could keep freezing the funds, but then we would be bending the rule of law”, as an official has stated. The conditionality conditions regarding the administration of justice seem to be cosmetic interventions by design, without significant impact on the distortions accumulated in more than a decade.

The rule of law is “an unqualified human good.” But the rule of law can be easily highjacked and turned into rule by law; it is also a technique of those who grabbed state power lawfully to impose their will in a seemingly legitimate manner. Moreover, it is often self-defeating or unable to provide guidance especially where political and politicized actors would like to abuse the legal loopholes (see the paralysis regarding the Spanish Constitutional Court, the Supreme Court and the Council for the Judiciary ). In the monthly Rule of Law nonsense competition the birthplace of the rule of law deserves honorable mention: the United Kingdom. “Unfortunately, altering the Ulez scheme for the purpose of exporting vehicles to Ukraine is not possible within the current limits of the GLA [Greater London Authority] Act.” (Ulez is a project to help clear London‘s air.) The export, badly needed for Ukraine, could “not go ahead as it did not meet the “legal threshold” that requires the scheme to benefit Londoners from an “economic, social and environmental perspective”.”

To use Raz’s paradigm: rule of law based norms are like a sharp knife. The cutting capacity of the knife that matters. But knives are dangerous: in the hands of knaves they become the assassins’ choice, and in the hands of children a threat to children’s well-being. Here are a few examples of the December harvest of rule of law self-destruction:

  • The Thuringia Project indicates that a mechanical application of the laws in the spirit of legality will help sinister political forces in Germany in their democratic journey to power at least at Land level.
  • In the US doomsday scenarios of a second Trump presidency indicate the vulnerabilities of the legal system in a great democracy. This is largely the result of complicit decades of extension of imperial presidential power.
  • 48 hours before the new (hopefully) anti-populist Polish government took the oath the Polish Constitutional Tribunal, relying on the Constitution, held the 2023 amendment of the Supreme Court Act unconstitutional. Thus the Tribunal blocked the reform requested by the EU on the basis of CJEU judgments which found the Disciplinary Chamber not to satisfy the requirements of a court established by law, given the appointment of the members of the Chamber. Unless a lawful solution is found (including the possibility of dismissing the Tribunal, a no-go from the perspective of a narrow understanding of irremovability) Poland will be forced to continue to pay a hefty fine and live in the limbo of a non-EU-conform state. Theoretically all legislation could be constitutionally paralyzed. Before the end of the same week the Tribunal issued a (hotly contested) interim measure to prevent planned changes in the management of the fully politicized, pro PiS public broadcaster.

Respect of the rule of law apparently blocks measures to restore the rule of law, at least in the eyes of those who follow the adage of the Hungarian Constitutional Court facing a statute of limitation issue in the context of calling to account perpetrators of state crimes under communism: “the rule of law cannot be built in violation of the rule of law”. Another situation where “legality kills us”.

Legal Theory’s Shortcomings

The cobblestones of the road to despotism are made of porous rule of law bricks. A simplistic understanding of the rule of law common to definitely not simple minded lawyers and politicians paralyses action against the future usurpers. For the same reason action against illiberal democracies is declared illegal or impossible (see the futility of the EU conditionality mechanism, aggravated by political compromise). Such attitudes become the tool of illiberal power consolidation (see rule by law in Hungary or in Venezuela under Chavez).  Undoing the illiberal regime once the political opportunity emerges becomes suspect at best.

Legal theory is short of an answer and interest that would counter this self-incapacitating tendency of the rule of law. Perverted legal systems are neglected. It is believed that a) this can’t happen here; or b) once democracy returns there will be proper correction through ordinary legislation and court activity. But evil law is a fact of life and most legal systems are imperfect even if not evil but bad enough. This lack of interest is exemplified by Dworkin, who was of the view that “the puzzle of evil law” is of “almost no practical importance” because judges will disregard it. Legal theories discuss models of countries which are in “reasonably good working order”. Joseph Raz discounts the relevance of imperfect legal orders: “Since the claim [of laws having authority] is made by legal officials wherever a legal system is in force, the possibility that it is normally insincere or based on a conceptual mistake is ruled out.”  (Resistance to evil remains possible, even appropriate but only on moral grounds.)

The real world of legal imperfections, abused by sinister political forces, necessitates a rule of law based theory and action plan that satisfies the demands of legal positivism. One could of course rely on public morals to mobilize against evil legal systems which, according to Radbruch, are void because they contradict supra-statutory law. But judges are not socialized to become moral arbitrators, and even less moral heroes. As to society: a considerable number of citizens of plebiscitary leader democracies do not find the legalized turpitude morally troubling and don’t resent the abuse of the rule of law. It is the legal profession (eminently, but not exclusively, judges) that is called to uphold the rule of law: this is the tradition and culture they are inculcated to observe, and this is what gives them legitimacy, authority and self-confidence – and protection. The legal profession cherishes legality. Most lawyers believe that properly enacted laws and precedents are valid and therefore legally binding. Legality is crucial to temper state arbitrariness, but a self-blinding respect of anything coming from the official gazette comes at a price.

To protect the rule of law based legal system against abusive use of the loopholes, imperfections, contradictions of the law, to avoid legal inertia legal positivist arguments are needed to convince and mobilize the legal mind. The same applies when the blind fortune of democracy provides the opportunity to erase the legally enthroned injustice and domination of illiberal regimes. When it comes to legal enactments that serve legal cheating the rule of law must respond to systemic abuse of the law and that requires and justifies a rule of law based exceptionalism and a systemic remedy.

An Exception to Confirm the Rule

This is why we need a militant rule of law. The term refers to the aggressive use of tried-and-tested rule of law standards and rules tailored to specific circumstances. Militant rule of law allows for exceptions to the rule of law which are already recognized in rule of law standards and a principled reinterpretation of rule of law precepts. When it comes to reliance on the recognized exceptions of the rule of law, it is vital that these exceptions be temporary, subject to proportionality and independent control.

Militancy applies both to preventive and restorative situations. Preventive militant rule of law presupposes a systematic revision of the existing institutional and doctrinal arrangements of the legal order and the abuse-restrictive application of rule of law doctrines in a proactive way.

Militant rule of law is to some extent comparable to militant democracy. However, militant democracy limits certain fundamental rights in order to preserve democracy against forces that aim to obtain control through democratic means, only to then permanently destroy democracy itself. In the case of the rule of law, militancy in most respects remains within the confines of accepted standards. Militant rule of law – unlike militant democracy in certain scenarios – does not contradict the fundamental principles of what it seeks to protect.

For illiberal democracies in the European Union, the name of the game is still “rule of law”. The rulers themselves are “partial prisoners of the law’s rhetoric, the law inhibiting the actions of the rulers.” The authorities continue to purport to observe the rule of law, or at least a version to their liking and making.

In a belated, rather timid and often contradictory way transnational European courts move in the direction of militant rule of law. The ECtHR found a workaround to the sacrosanct principle of judicial irremovability stating that a court with the participation of unlawfully appointed judges does not satisfy the requirements of a tribunal established by law. Removal of judges appointed on the basis of a law that disregards judicial independence satisfies the rule of law. The CJEU found that judicial impartiality is an enforceable norm of the Treaty (though sometimes “non-judges” are treated as judges). Moreover, it has innovatively “found” a principle of non-regression that prohibits EU member states to regress in their laws on the organization of justice.

Of course, where the rule of law is sacrificed to bureaucratic inertia and political deals (as it happens in the case of Hungarian conditionality horse trading) rule of law will be compromised. Moreover, the international courts will legitimize populist despotism in case they continue to uphold national idiosyncrasies (aka “constitutional identity”) which restrict fundamental rights departing from European consensus and accepted solutions of the rule of law. It is vital for militant (or any) defense of the rule of law status quo that international (and constitutional) courts be aware of the ripple effect of their more lenient (aka “deferential”) or delayed judgments.

There are many rules and maxims of the rule of law that can be mobilized in a militant concept, such as legislative intent analysis and the robust application of reasonableness review applied to laws even outside fundamental rights. These would enable the positivist lawyer and judge to stand up against illicit legislative intention resulting in unreasonable decisions (as cheating in the law inevitably leads to non-sense and arbitrary decisions).

Important as trust is, abandoning the presumption of legislative good faith is not contrary to the rule of law. Bad faith is the normal assumption when the systemic abuse of the law is demonstrated. It is a recognized principle of law (see Art. 18 of the European Convention on Human Rights) that restrictions of rights shall not be applied for any purpose other than those for which they have been prescribed. A militant understanding of this principle extends it to all areas of law.

Another militant concept is the anti-formalistic understanding of legal validity. A law that is enacted formally correctly is not necessarily valid even according to many legal positivists adhering to the source theory, as long as the prevailing assumption in the legal community contains expectations regarding the rule of law being part of the rule of law.

Judges have considerable interpretive possibilities within the rule of law, and there is nothing in legal positivism that would preclude a militant use of such possibilities. After all, illiberal democracies mandate at the level of their constitutions respect of the rule of law. (In self-referential constitutional tradition many constitutions declare that the state is a Rechtsstaat. Le Rechtsstaat c’est moi.  Well, if they say so…)

Militant rule of law cannot accept the Befehl ist Befehl tradition in the name of academic value neutrality.  “The man has been trained for the rules of the game but the game has been changed so what now is the man.” We should not wait for the gamechanger.

SUGGESTED CITATION  Sajó, András: Militant Rule of Law, VerfBlog, 2023/12/20, https://verfassungsblog.de/militant-rule-of-law/, DOI: 10.59704/309ff22756f26063.

One Comment

  1. Marc Creus Sat 23 Dec 2023 at 08:31 - Reply

    Very relevant article highlighting some of the difficulties of the partisan use of the “rule of law” and its crossing the line into “rule by law”. I wonder whether the avoidance of the word “lawfare” in this opinion piece is simply by neglect or whether it is purposeful? “Lawfare” or justice as a weapon for political warfare, originally a US concept, is applicable in several of the situations mentioned, as is in the current conflict between Catalonia and Spain, for example.

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