1/ Let's talk about rule of law versus rule by law.
Rule of law is the legal system that applies in democratic states, and is foundational to democracy. It holds that the law is the supreme authority to which everyone, including government officials, is subject.
Rule of law is the legal system that applies in democratic states, and is foundational to democracy. It holds that the law is the supreme authority to which everyone, including government officials, is subject.
2/ This is traditionally illustrated by the image of 'blind Justice', usually depicted as a blindfolded woman standing with a sword and set of scales. The blindfold denotes impartiality; the sword, authority; the scales, balance and fairness; the pose, steadfastness.
3/ In autocracies – notably Russia and China today, and so-called 'Herrenvolk democracies' like apartheid South Africa and the pre-Civil Rights southern United States – a different system has operated: rule by law, rather than rule of law.
4/ Rule by law can be summarised by a single principle: the law protects the dominant group but does not bind them, while it binds the rest of the groups in society but does not protect them.
5/ China's rule of law system stands out for its unusually high level of formalism. The Chinese Communist Party is the highest authority in China and is not bound in any way by the law. Instead, it uses the law as its chief instrument for governing the population.
6/ In China, this is known as fazhi (法治) or yifa zhiguo (依法治国), which literally means “law-based governance” or ruling the country in accordance with the law. (China officially translates 法治 as "rule of law" but the actual system is completely different.)
7/ So what are the key markers of a rule by law system, in contrast to one based on rule of law?
8/🔹 Law as an instrument of control: Laws are primarily crafted and enforced to serve the interests of the ruling class or government, rather than to uphold justice or protect individual rights. The law becomes a tool for maintaining power and suppressing opposition.
9/🔹 Selective or arbitrary enforcement: Those in favour with the authorities receive lenient treatment or be exempt from certain laws, while others, especially political opponents or marginalised groups, face harsh enforcement.
10/ This can be accompanied by a lack of transparency and consistency in how laws are applied, leading to unpredictability and legal uncertainty. In China, this has made it particularly difficult for Western companies to operate without fear of arbitrary arrests and restrictions.
11/🔹 Lack of judicial independence: Judges are appointed based on political loyalty to make decisions that favour the government's agenda over legal or moral principles. This is very much the case in both Russia and China, where judges aren't in any way independent actors.
12/🔹 Legislation for control: Laws target political dissidents, control public activities, or limit freedoms like speech, assembly, or press under the pretext of national security or maintaining/restoring public order. China has taken this approach in repressing Hong Kong.
13/ 🔹 Absence of accountability: Those in power are not held accountable for breaking the law or might take action to legitimise their actions retroactively, such as self-pardoning or having themselves declared legally immune. This often leads to corruption and abuse of power.
14/ 🔹 Opacity in legal processes: The law-making process, enforcement, and judicial proceedings lack transparency, making it difficult for citizens to understand or engage with the legal system. Russia and China both make it very difficult to scrutinise legal proceedings.
15/ 🔹 Lack of legal protection for rights: Whereas rule of law systems protect human rights by law, rule by law systems enable individual rights to be overridden or ignored if it suits the interests of those in power.
16/ One of the key issues in the next four years is how far the US is likely to go in moving from the rule of law to rule by law. There are already warning signs, like the pardoning of January 6 rioters, the invention of presidential immunity, and judicial politicisation.
17/ There will certainly be many changes to the law coming up in the US. It'd be worth bookmarking the list above and comparing it with new laws and decrees as they emerge, to help you assess whether they correspond with rule of law or rule by law. /end
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