“Late last year the Hungarian Minister of Justice, Judit Varga, wrote an opinion column questioning the burgeoning empire of the Rule of Law and the use of that empire by the European Commission and Parliament to keep some of the member states in line. Ms Varga even argued that the underlying dispute was not really even about the Rule of Law. Needless to say this opinion piece generated more than a little hostile criticism across Europe. In what follows I want to argue that Varga gets the better of this argument, by far, than do her critics.”
Late last year the Hungarian Minister of Justice, Judit Varga, wrote an opinion column questioning the burgeoning empire of the Rule of Law and the use of that empire by the European Commission and Parliament to keep some of the member states in line. Ms Varga even argued that the underlying dispute was not really even about the Rule of Law. Needless to say this opinion piece generated more than a little hostile criticism across Europe. In what follows I want to argue that Varga gets the better of this argument, by far, than do her critics.
To start, though, we need to go back and consider this notion of “the Rule of Law”. In broad terms, and allowing for a bit of generalising, there are two competing senses in which this notion or concept or understanding of the Rule of Law is used. One is what you can think of as morally thin or procedural sense. This is the more old-fashioned sense of the Rule of Law. Here the virtues we associate with this proceduralist or morally Spartan version of the Rule of Law include what flows from demanding that the law be created in terms of clear, general rules, applicable to all, known in advance, able to be complied with, and so easily able to be used and relied on to shape one’s expectations. That sort of thing. Notice that the Rule of Law in this first sense, by asking that jurisdictions seek to employ legal rules that are prospective, consistent, clear, general, able to be complied with and the like, does not ensure that this, that or the other legal system will deliver heaven on earth. Nothing can do that. Instead it goes a considerable distance towards delivering the values of certainty, predictability and non-arbitrariness. These are in a sense procedural virtues – namely what follows from a set of procedural demands about how man-made laws ought overwhelmingly to be produced. But they are not assurances that each citizen or voter will think that all the laws that were enacted in this way ultimately end up delivering morally good substantive results. On this thin understanding of the Rule of Law, then, there will remain plenty of room for reasonable disagreement about the rights and wrongs of democratically enacted laws, say a Thatcher poll tax or an Obama Affordable Health Care provision or an Australian-style immigration law regime or a Canadian package of language laws – the list goes on and on and on. Put bluntly, the procedural understanding does not try to cram all possible good things into, or under the rubric of, this notion of the Rule of Law.
However, in the last four or five decades, at least in the developed Anglosphere common law world, there has grown up a competing concept or notion of the Rule of Law. This is a much fatter or thicker or morally impregnated and value-laden conception or understanding of the Rule of Law. On this second view, in addition to mandates as to how laws should be made, you also build in demands about what laws should ultimately look like once brought into being. They might need to pass, say, some threshold of rights-respectingness for this to be deemed a Rule of Law jurisdiction; or to be judged to further, say, human flourishing, equality, a chosen panoply of political goods (usually then translated into the language of human rights), whatever the assessor’s preferred moral currency might happen to be. On this more morally laden understanding, therefore, whether jurisdiction X gets awarded the label of “a rule of law regime” will in part depend upon whether you – the one doing the assessing – think its laws to be morally good ones. It is not enough that they were made according to the old-fashioned prospective, consistent, clear, general, able to be complied with procedural virtues. The end results have to meet some purity test, have to overcome some moral threshold. Or rather you, the judge awarding the title “Rule of Law Compliant’’, you have to feel these laws so made have enough moral goodness in them. Otherwise you, the person assessing the substance of some law or legal regime, can withhold the label “Rule of Law Compliant”.
In general terms that should give readers a basic sense of the divide between the thin, procedural conception of the Rule of Law and its newer offshoot the fat, thick, morally pregnant conception. Of course which understanding or notion of the Rule of Law (thin or thick) is preferable, or better, or right cannot be answered by opening up a dictionary and looking up a meaning. The morally Spartan and the morally pregnant understandings are competing accounts of a debatable or contestable concept, this notion of “the Rule of Law”. There are strengths and weaknesses attaching to both of them and different people will weigh and choose differently. But be clear it is a choice you have to make on normative grounds. To tip my hand I personally believe that the thinner, proceduralist account is the better one. So let me quickly run through just three reasons why that is, why I prefer the proceduralist over the substantive understanding, and then I can return to the grievances Ms Varga was articulating. At that point I think we will be in a position to see why, at least on the more old-fashioned understanding of the Rule of Law, the Hungarian Minister ofJustice was correct and had the better of the argument than her critics.
1) REASONABLE DISAGREEMENT
Point one. The fat conception of the Rule of Law makes virtually no allowance for or mention at all of the fact that people disagree about best moral outcomes. Put differently, all of us voters disagree about how to promote human rights, human flourishing, equality what have you. Stuff all such substantive moral evaluations under the aegis of a morally overweight conception of the Rule of Law and you finesse all sorts of those disagreements. The morally pregnant understanding, concomitantly, virtually never concedes that all these sorts of disagreements are over morally contested social policy line-drawing disputes. They are disagreements between smart, well-informed, reasonable and nice people – people with whom you would be happy to have a drink regardless of whether they agree or disagree with you. It follows that if you alter your understanding of the Rule of Law to make it far more substantive and morally laden – to stuff in every morally good thing you can think of – then you will carry those moral disagreements with you. Now, though, the disagreement will not be directly about the specific moral issues concerned but instead it will be in terms of whether the Rule of Law does, or does not, apply. Or whether it should be invoked. Or whether it can be used in this or that instance to gainsay and second-guess some country’s elected legislature. And somebody other than the voters – maybe judges, maybe some supranational elite – will have more power to make those calls. Accordingly, I think that the costs of that sort of move from a thin to a thick understanding would outweigh any and all benefits even if the move were made openly and in broad daylight. But often it is not.
This first point in favour of thin understandings of the Rule of Law boils down to the claim that it is better to leave moral disagreements in society, or between jurisdictions, focused on some specific actual law or policy (an immigration regime, say, or an argument about how much final say unelected judges ought to have or whatever), not to transmogrify them into broad, lofty abstractions about whether some morally obese understanding of “the Rule of Law” has or has not been complied with. Put more bluntly, fat understandings can sometimes allow the language of “Rule of Law Compliance” to become a political tool, platitudinously and unconstrainedly discharged with too great regularity.
This takes us to the second point: the place of democracy under any substantive, fat and clearly-intended-to-be-potent conception of the Rule of Law. This place for democracy and democratic decision-making, where all of us are counted equally and we vote for representatives who will decide key social issues such as immigration, can seem rather invisible under a morally laden, substantive Rule of Law conception. That, in a sentence, is a second rather big weakness. It leaves us with an insipid, desiccated understanding of democracy.
Here is the danger. You see proponents of the fat understanding can sometimes appear to be wholly unconcerned and insouciant about the possibility that top judges, or supranational bureaucrats, might dress up their own social policy preferences in this fat, morally pregnant Rule of Law finery. And they might then invoke it to try to trump an elected legislature and have their way. After all, it is surely not inconceivable that a coterie of unelected officials might sometimes hold views different from those of the majority of a country’s population. Or think of it this way. Under a thick understanding it can on occasion seem as though the Rule of Law is being made the cornerstone of democracy, rather than the other way around. Let me put my grievance here this way. I have always rather thought that the gist of democracy was counting each citizen equally, be he or she plumber, teacher or high official of a supranational bureaucracy, and then letting the numbers count – without any overarching supervisory role for unelected judges or others on contentious, key issues of substance. That inevitably means that all of us will now and then be on the losing side of issues we care deeply about, even ones that can be translated into the language of rights or principles or – dare one say it – the Rule of Law. In a democracy, then, our remedies ought to be to work hard for a political party whose policies we like; it ought not to be to appeal to an almost undefinable, ineffable, morally obese conception of the Rule of Law to give us what the majority of our fellow citizens would not. I suppose then what I dislike most about these morally laden accounts of the Rule of Law is the implicit way that they leave us with an emasculated, enervated, Hong Kong-like version of democratic decision-making.
3) ATTENDANT COSTS OF THE FAT UNDERSTANDING
My third and final point is this: Opting for a fat, morally laden, substantive conception of the Rule of Law has costs as well as benefits. In addition to the costs in terms of democratic decision-making and the masking of reasonable disagreement in society, there are particular costs related to the benefits that a procedural understanding of the Rule of Law would have delivered, but now will not. Think of the virtues we associate with this proceduralist version of the Rule of Law. These are the demands that law be in terms of general rules, known in advance, able to be used to shape expectations, clear, consistent, prospective. Opt for a thicker conception and much (or at least some) of the “known in advance” benefits to the citizen will go because no one will know if law X or law Y is in keeping with that morally laden Rule of Law notion until some latter day officials or judges, after the enactment of these laws, comes to town to tell us. Worse, if you admit that judge-made law is inherently retrospective, then more of the forward-looking benefits will go when it is judges dealing in the currency of a morally pregnant Rule of Law.
Now that might be a price worth paying if you thought a morally laden conception could do what a thin conception admittedly cannot do, which is to rid the world of all evil. Alas, I do not think I go out too far on a limb in saying that fat conceptions cannot do this either. Handing some sort of overseeing power to a handful of top judges or unelected officials and telling them to exercise it on the basis of promiscuous assurances of the existence – or lack thereof – of substantive Rule of Law values guarantees no such thing. Put more bluntly, the main benefit that thick, substantive understandings of the Rule of Law seem to promise is one they can never deliver. Meantime, and despite what proponents of the thick conception sometimes suggest, there are tangible, down-to-earth benefits to the thin, proceduralist conception in terms of knowing what the laws are in advance, of their being laid down prospectively by the legislature and not shaped after-the- fact by non-democratic bodies or judicial decisions, of being able to decide how or whether you are going to shape your conduct and expectations to those general, clear, prospectively enacted laws. Heck, say this sotto voce, but there is even a sort of virtue and benefit in the scrupulous procedural observance of morally deficient laws if the alternative is, as it probably would be, their being applied arbitrarily, ruthlessly and on no easily predictable basis – which are the very sins the old- fashioned understanding of the Rule of Law aimed to enervate.
BACK TO JUDIT VARGAS GRIEVANCES AND HER CRITICS
We can now return to the grievances of Ms Varga, the Hungarian Justice Minister, that criticisms by the EU of Hungary are not really about the Rule of Law – indeed that this notion of the Rule of Law is being used as a political weapon to object to substantive policies enacted into law by the elected government of Hungary.
Well, it would seem pretty clear that there have been no breaches of the Rule of Law by Hungary in what I have called its thin or proceduralist or old- fashioned understanding or sense. Laws are enacted in Hungary that are general, prospective, able to be complied with and open to be used by all and sundry to shape their expectations. Hence we are not talking about EU criticisms here related to supposedly arbitrary diktats that were dispensed, metaphorically, under palm trees according to the daily whims of the ruler. The law-making procedures are just fine.
No. Readers can now see that it is very much in a morally laden, morally pregnant, even a morally obese substantive sense that the Rule of Law notion is being used to criticise Hungary. In other words, a panoply of moral and political disagreements have been packaged up, bound together and labelled as “Rule of Law Concerns”. Or better still, because this is admittedly a potent rhetorical tool, the claim is made that Hungary is “Not Rule of Law Compliant”. That sort of usage of the language of a substantive Rule of Law notion could, of course, be transliterated into a proceduralist Rule of Law notion where it would become “Sure, Hungary is Rule of Law Compliant but we do not happen to like some of the laws your elected government has produced”.
The extent to which such likings or not likings of laws passed by EU member states is something that ought to be open for comment by EU Periodic Peer Review Mechanisms, or what have you, is clearly beyond the purview of this short comment. Here I simply note that on the older, thinner, proceduralist understanding these complaints have nothing to do with the Rule of Law. And on any more substantive, morally fat understanding what is in fact actually in play is a reasonable disagreement about the moral and political value of certain Hungarian laws.