We Must Protect the Rule of Law
Ukrainian children are fleeing Russian aggression. Przemyśl, Poland, February 27, 2022. Photo: Mirek Pruchnick
For once, the origin of this essay is a debate that resurfaced in France in the wake of some radical statements made by the new right-wing Minister of the Interior. In an interview with the newspaper Le Journal du Dimanche, which has been very sympathetic to the far right since its takeover by ultra-conservative billionaire Vincent Bolloré, he declared, among other things, that “the rule of law (...) is neither intangible nor sacred”. He added: “The source of the rule of law is democracy, it is the sovereign people”. Admittedly, he did not radically call into question the separation of powers and judicial control, but in the name of what he considered a necessary evolution of the law, he discredited a concept deemed unassailable in a democracy.
The interview also included proposals regarded as detrimental to freedoms, such as the double penalty, which we won’t go into here. It also capitalized on the wave of emotion generated by the murder of a 19-year-old female student by a foreigner who was under an obligation to leave French territory. In successive interviews, he again called for greater firmness on immigration and repression, implicitly linking the former to insecurity. In 2015, the same minister had significantly supported a “world coalition with Russia and Iran” to fight terrorism…
In defense of the rule of law, I wrote a long thread on social network X and on Facebook. My words were widely echoed and re-posted, mostly praised and shared, sometimes also heavily criticized, particularly by people known for their extreme right-wing or hard-right views. The minister’s remarks were denounced by the President of the National Assembly, a former Prime Minister, several members of parliament from the President’s camp, the President of the Constitutional Council, and finally the President of the Republic himself—specifically on migration issues.
It was suggested to me that I should write something with a broader scope, because the threats to the rule of law are not only being posed by extremist parties in France—from both the left and the right, incidentally—but concern all countries.
Above all, it seemed to me, in the light of certain reactions, that there was little reflection on the nature of the law, even among an educated public, and that the very substance of the rule of law was the subject of confusion. Everyone agrees that the law can evolve—and indeed, it does change regularly. The Constitution can also be amended—as it often was in France (often actually to better enforce the rule of law). Logically, the decisive question is that of the bedrock of irrevocable principles that no one can mean if we wish to remain a democracy.
Above all, I believe it is necessary to make even clearer the close links between the defense of the rule of law at home and respect for the law at international level. I have often spoken here of the oblivion of the law, particularly its international component, as a reminder of the indifference of many leaders to the violation of fundamental rights.
Until recently, I was struck by the fact that most international leaders, with the notable exceptions of the British and Polish Foreign Ministers, David Lammy and Radoslav Sikorski, made no mention of Russia’s mass crimes in their speeches to the 2024 UN General Assembly. I’m afraid there’s a close link between these forms of willful amnesia, as if leaders who are otherwise committed to the rule of law also feel a programmed defeat of the law. Incidentally, it should also be noted that the failure of leaders to denounce Russian crimes on a regular basis is also a way of dispensing with the duty to intervene. It does, however, have a deleterious effect on public opinion, which is not always aware of the immensity of these crimes.
The fundamental question is that of the perception of law and, in particular, fundamental rights in democratic societies. I believe it is extremely difficult to separate its various components, as if we could avoid understanding its unity at domestic, European and international levels. There are conceptual interactions, but also an interlocking at the level of positive law—the law as it must be applied—between these different fields, in a particularly notable way for the rights underpinning our constitutional order. In most democratic countries, particularly those belonging to the European Union or the Council of Europe, we speak of a “constitutionality block”, which includes not only the fundamental rules of the Constitution, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, but also the main international treaties and conventions (Geneva Conventions, refugee conventions, texts governing international criminal law, etc.). Giving less importance to the latter, let alone scorning them, has a destructive knock-on effect on domestic law.
The law: what popular sovereignty?
One of the most misunderstood aspects of the principle governing the rule of law is the non-absolute nature of popular sovereignty. In fact, there is a tension between several sovereignties that unfold in different spaces and time-scales.
The spaces are certainly multiple: Parliament, made up of one or two chambers, sometimes the assembled people, whose contemporary figure is the referendum, whose scope may or may not be limited by fundamental texts, the constitutional court, the central state and sub-state bodies (particularly in federal systems), the supra-state level, which may be the place where norms are enacted, but also where they are controlled—or even “punished”. Between these different levels, there may or may not be a hierarchy, which also refers to the hierarchy of norms, which also exists in domestic law (but here too, with notable differences between states, depending on whether or not the government recognizes its own power distinct from that of parliament). To this must be added the judicial arena, where judges are often called upon to interpret obscure legislation, or to compare the law with other legislative and sometimes constitutional texts in the event of contradiction. In this way, judges attempt to re-establish a kind of coherence in the legal system. This notion of “space” seems to be generally known and accepted, except by a few “fanatics” of popular sovereignty who intend to give absolute preeminence to the people, making them not only the sole source, but also a permanent presence in the decision-making process. We will examine the risks of this absolutist conception.
The notion of time seems to be rather ignored when dealing with popular sovereignty. They consider it only in its immediate dimension: the people elect an assembly (or sometimes a president directly) on the basis of a political program that would be the expression of this will—which certainly corresponds to an understandable logic, but is nevertheless biased. They like to claim that this assembly has all the rights, since it is the product of the will of the people. Anyone can vote for a party without knowing its program in detail, and without having given their consent to everything in it. The people generally approve an orientation, rarely a precise program. Some might argue that the same is not true of referendums, but this depends not only on the question asked and its importance in the eyes of the voters, but also on the motivations behind the vote, which may be unrelated to the subject in question. This raises the question of the solidity, or even purity, of the expression of the popular will, which reveals a form of congenital imperfection. This is certainly not a reason to reject it entirely, but it is a reason to moderate and limit it.
It is, above all, a reason to seek out what might result from a greater permanence of popular will, which must be weighed against the fluctuations of this opinion and its ill-founded nature. In short, we must proceed with a kind of historical genealogy of the will. This is expressed through a long history, which, in the case of fundamental rights, can be synthesized through constitutional consecrations. These rights become part of the Constitution as soon as public opinion considers them indisputable. This historical movement, particularly in Europe, transcends national specificities. Thus, at the level of both the Council of Europe and the European Union, principles expressing shared conceptions of the rule of law have been enshrined in founding documents. In this way, the rule of law acquires a form of historical and traditional legitimacy, to use Max Weber’s expression, granted not to a person (the emperor or the king), but to the founding rules of law. This heritage is built up over time, and acquires a higher value than the momentary expression of popular sovereignty, or what is often described as such.
Of course, this foundation of fundamental rights can evolve over time—no one would have dreamed fifty years ago of enshrining the right to abortion as a fundamental right, and thereby enshrining it in the rule of law, as was recently the case in France, a world premiere. This right, like same-sex marriage, is still the subject of political debate in many countries. As societies evolve, these rights may or may not become part of this foundation, whose rules cannot be transgressed.
The rule of law is guaranteed by three mechanisms.
The first is the limitation of each power by another, and by the judicial authority—an authority in the sense defined by Hannah Arendt, and so named in the French Constitution—but which does not have the same power of appreciation as Parliament, as the Constitutional Council in France regularly reminds us. This limitation also applies to the expression of popular sovereignty.
Secondly, the law is embedded in a long history, as if the generations that preceded us had some kind of right to look back on the present, commanding us to be faithful to them. The third is the inclusion, to a greater or lesser extent, of each national law in a set of rules laid down at international level, since no nation is entirely sovereign in legal terms.
This is another, even stronger form of submission to history, the history of the world rather than that of the nation. It is no coincidence that challenges to the rule of law most often involve a challenge to international, and particularly European, norms.
Constitutional sovereignty across borders
Sovereigntists are among the most fervent critics of the rule of law. Quick to denounce the “dictatorship of Brussels” and proclaim that they “want to take back control”—to use the Brexiteers’ slogan—they denounce in particular the alleged “diktats” of European justice. The latter is regularly challenged by sovereigntists, but also beyond, and the European Court probably even more so, precisely because it recalls certain obligations in terms of respect for the rule of law. It’s no coincidence that my critics were strongly opposed to the 1992 Maastricht Treaty, and argued in favor of a no vote in the French referendum of May 29 2005 on the draft European Constitutional Treaty.
Indeed, these sovereigntists, whether on the left or the right, cannot be reproached for a certain consistency: they are the ones who are generally most inclined to attack national judges and put forward “the people”—the far-left version—or national sovereignty, in other words that of the “national people” as opposed to a “European people”—the far-right version. The invocation of the “people”—the right to insurrection and the power of the street as opposed to national representation, in the far-left version—or that of the “nation” come together to torpedo the rule of law, the idea of balance and the principle of at least partial sovereignty of European and international law. Unsurprisingly, sovereigntists on both left and right show no visible indignation at major violations of international law by the world’s criminal leaders, except when it comes to instrumentalizing a cause (as in the case of Palestine on the far left). They are so fond of the sovereignty of the people that they are prepared to sacrifice the sovereignty demonstrated by the Ukrainian people in their struggle.
We readily admit that this indifference to international law is not confined to sovereigntists and extremist political parties. It even comes from those who can defend the rule of law at home. We can hypothesize that, in one case, this attitude reflects a desire to escape all legal constraints in the name of an immediate will of the people, as sacralized as it is instrumentalized by extreme parties, and that, in the other case, the liberty taken towards international law reflects above all an intellectual incomprehension. It signals a failure to perceive a legal continuum between the internal and the external. Perhaps it also expresses an acceptance of being politically bound by the rule of law at home, and a desire to regain some room for maneuver in the conduct of international politics. We won’t come back to this: it led to a strategic blindness whose consequences were terrible in the face of Russia’s, and then China’s, determination to destroy all legal norms. These leaders failed to see the scope of such a fundamentally ideological and destructive offensive against democracies from within.
Some time ago, Jürgen Habermas—with whom I have fundamental political (notably on Russia) as well as philosophical differences—proposed the notion of “constitutional patriotism” (Verfassungspatriotismus), admittedly in a context linked to debates on the nature of the Federal Republic of Germany. It also reflected the philosopher’s desire to base democracy on a preference for fundamental rights over national tradition, if not belonging. Subsequently, the idea was to reconcile or even link this belonging to a form of “pride” in living under the rule of law, a pride that would have been impossible in a nation that did not recognize it as a cardinal value.
For my part, I would rather speak of “constitutional sovereignty”, a sovereignty whose components include all the sources of fundamental rights—national, European and international—the institutions that protect them, the procedures that guarantee them, and the classic rules of democracy, which include popular sovereignty. It’s not a question of “dissolving the people”, as sovereigntists claim in their emphatic excess, but rather of enabling them to preserve their freedom.
The fight for the rule of law is, in fact, a long struggle for the protection of the individual, and thus of a free people whose collective freedom cannot be thought of in isolation from this primarily personal, if not intimate, freedom. The entire history of fundamental rights at both European and international level (human rights in the classical sense of the term, which go beyond the rights of the citizen and the national, independence of the judiciary, legislation on crimes for which there is no statute of limitations, freedom and integrity of the media, the right to education and health, etc.) has been marked by a dynamic of extension, reinforcing the protection that every individual must enjoy. The aim is precisely to establish a form of continuity between the legal order of the state and the international arena, even if the latter is not state-based. It could thus be said that the rule of law transcends precisely this state framework. Dictatorships and their proxies within democracies are working against this global project, which is admittedly largely unfinished, if not yet embryonic.
A worldwide doctrinal battle
The war against the law is the point of convergence for a variety of seemingly disparate movements. The alleged restoration of the sovereignty of the people, national independence, the defense of “traditional values” or the fight against elites deemed unrepresentative are but the masks of this struggle against the law, which for them is the primary issue. Of course, these different movements cannot directly present it as such.
The rule of law has never been an obstacle to the evolution of the law, including the strengthening of penal provisions against people who commit criminal acts. It does not prevent penalties from being increased, or even, in some cases, from being made permanent. While it certainly excludes capital punishment, considered incompatible with the principles of humanity that have become an integral part of the rule of law, it does oblige us to ensure that penalties are proportionate, that they are not discriminatory, that there is a fair and proper trial, that there are rights of appeal, and other rules that also require the law to make provision, in form and substance, for safeguards against possible abuses. The rule of law has never prevented the most severe punishment of the worst criminals. Nor does it prevent changes in the way criminal law is applied when shortcomings are identified.
There’s no need to incriminate the rule of law, when the problem, where applicable, may only stem from an amendable imperfection in positive law and a flaw in the application of the law. It’s a fact, for example, that many police forces around the world seem powerless to deal with the rise and sophistication of serious drug-related crime. They are also—and this is often a problem of both legal provisions and the political will to apply existing laws—faced with certain phenomena of corruption—I have spoken at length about corruption linked to foreign influences. This is not the result of an inadequate rule of law.
Criticism of the rule of law as such is in fact driven by a much deeper ideological struggle, and the pretexts invoked are no more than the froth of an underlying movement. At the forefront of the fight to challenge the rule of law are the criminal states, led by Russia, but also the People’s Republic of China, Iran, North Korea and Syria. Other dictatorships in the Middle East, Africa, Asia and Latin America are also taking up the fight, albeit sometimes less vocally. They have no desire for a world whose institutions regularly remind them of their obligations, particularly in terms of respect for human rights, an integral part of the rule of law. But this movement is also spreading throughout Europe, and is being driven by governments that are often tempted by a Russian-style approach (Hungary, Slovakia, Serbia), although not exclusively so, encountering ideological contradictions (Poland when it was governed by the PiS). It’s also true with Trump in the US and Netanyahu in Israel.
This is also the case for political parties, mainly on the far right, but also sometimes on the far left, which want to break free from European rules and international conventions as much as from internal constitutional constraints, and which more often than not have Putin’s Russia as their model.
These movements thrive all the more easily because the classic political parties, both social-democrats and conservatives, have largely abandoned the field of law as the cornerstone of their narrative. Admittedly, the historical, social, cultural and political context of each country is different, and the genesis of these movements is different, particularly in the countries of the former Soviet bloc and those of Western and Southern Europe. Antidotes vary in strength and effectiveness, at least in theory, though in reality their effects are diminishing almost everywhere. But the absence of a structured discourse on what the rule of law means and encompasses is frequently widespread. A kind of explicit constitutional contract is lacking. In many countries, the European Union is known for its policies (structural funds, economic policy, common agricultural policy), but less for its regulations and, above all, for the way in which the common set of principles is applied in law. While many recognize a link between the European Union and fundamental freedoms or, as is often said, a way of life that is not that of Russia or China, this sometimes remains relatively abstract.
What’s more, international law is seldom put forward by these leaders, or only in diplomatic declarations that reach a limited audience. The majority of European public opinion now understands, after years of silence between 2014 and 2022, that Russia is the aggressor country and that Ukraine is the aggressed one and must be defended. But there is no evidence that this public opinion is aware that the founding principles of international law are being transgressed by Moscow, in particular through the mass crimes it has been committing for the past twenty-five years. The link between these violations of international law and breaches of the rule of law as established by European treaties and national constitutions is even less clear to the public. Yet when this continuum and the unity of fundamental principles are no longer grasped at all levels, the understanding of the rule of law is eroded—and even more so of the multifaceted assaults to which it is subjected.
It is urgent that the narratives of political leaders match the threats.