The rule of law a fundamental choice of the individual and of the nations
To speak before such a distinguished audience about the Rule of Law can be both very easy and very difficult. Easy, for the principles summed up by the concept of the Rule of Law are not only accepted, but revered, even worshiped everywhere in our time. Freedom under the rule of law is repeatedly proclaimed as the core definition of Western democracies by all the leaders of the democratic world. The World Bank and International Monetary Fund condition their financial assistance on the implementation of the rule of law in recipient countries, as the only means to provide a secure environment for investments, property, contracts, and market economy.
I do not know of any philosopher or statesman who dares to openly challenge the Rule of Law as such. I never heard any encomium of the lawlessness or of the arbitrary as a principle. Leaders of a variety of systems, some of which have rejected democracy and individual rights, and many of which oppose liberalism and are explicitly anti-Western, claim their support for the rule of law and even identify it as essential. Robert Mugabe, the contested President of Zimbabwe, stated that “Only a government that subjects itself to the rule of law has any moral right to demand of its citizens obedience to the rule of law. Forgetting what Hobbes in his Leviathan stated – that “he that is bound to himself only, is not bound.”, many abuses of the law have been conducted by states and government officials who claim to embrace and abide by the rule of law.
Hypocrisy is, as we all know only too well, the highest homage of vice to virtue. Even the most despotic rulers of our times pretend to obey the laws. This unanimity in support of the rule of law is a feat unparalleled in history. It would not be very difficult to show that the notion of ‘the rule of law’ may become meaningless due to ideological abuse and general over-use. That is why, as I said before, speaking about the rule of law in front of a sophisticated and well-informed audience may be extremely difficult. Claimed as an universal principle of legitimating power, the concept of the rule of law can be either a truthful recognition of the moral essence of the State, or a cover for cynical political leaders who do lip-service in favor of the rule of law while violating it. But, on the other hand, the mere fact of its frequent repetition is compelling evidence that adherence to the rule of law is an accepted measure worldwide of government legitimacy. No other single political ideal has ever achieved such a universal endorsement.
The rule of law thus stands in the peculiar state of being the preeminent legitimating political ideal in the world of today, without any agreement upon precisely what it means.
To complicate things further, the scholarly debate about the concept of Rule of law, its past and present, as well as, most important, its future, engages political scientists, philosophers, historians and lawyers, trying to understand better both the definition and the limitations of a notion which may seem universal and undisputable to the layman, but proves itself highly problematic to the theorists. A striking disjunction exists between the theoretical discourse on the rule of law and the political and public discourse on the rule of law. Some believe that the rule of law includes protection of individual rights. Some think that democracy is part of the rule of law, some not. Some believe that the rule of law includes protection of individual rights, and some do not. One can think that the rule of law is purely formal in nature, or, on the contrary, that the rule of law is substantial, encompassing the social, economic, educational, and cultural conditions under which people’s legitimate aspirations and dignity may be realized.
I understand why there are, in theory, so many contradictions and nuances in defining the rule of law in relation to our complex world, in which innumerable traditions, cultures, and historical experiences blend and confront each other. The concept was born more than two thousand years ago, when Pindar forged first the image of a King Law, Nomos Basileus, and when Herodotus quoted him to oppose the rule of one single man, the Persian monarch, to the rule of Greek law. Such a concept cannot cross two millennia and more, a diversity of political regimes, and a sea of troubled history, without gathering a lot of internal contradictions. As a practitioner, both of the law and of governance - but even more as a citizen - I will try to contribute to a practical definition of the rule of law starting from the opposite viewpoint: from its absence. As with air or water, it is easier to perceive what the rule of law means when we lack it. I strongly believe that many of the contradictions of such a basic concept disappear if only we reflect a while about how the rule of law can itself disappear from a given society, and what are the consequences of its absence.
I presume Mrs. Mary Robinson, the former president of the Republic of Ireland, and I were invited to the World Justice Forum not to present theoretical considerations, but to impart the experience of certain witnesses, sometime actors, in a time of dramatic transformations in our countries and in the world.
After the collapse of the communism, one of the most surprising revelations I had in my country, was, as we advanced in transition towards a consolidated democracy and a functional economy, Romania was either loosing or winning. And that depending on the way the law and the regulations were or were not observed during periods of time farther and farther back in the past, from the communism up to the Medieval Age.
Romania used to be a state governed by laws, at least from the nineteen century, when a liberal constitution was adopted in 1866: the separation of powers was insured, the king, the government officials and the citizens were bound by, and acted consistent with the law. Law was prospective, being set forth in advance, was public, general, clear, stable and certain, and was applied equally to everyone according to its terms. The basic freedoms of the citizen were granted, as was their right to acquire and detain property, and their participation in the political life. In terms appropriated to that time, Romania was a standard democracy, governed by law. This constitutional order was deeply endangered at the dawn of the Second World War by the authoritarian regimes and fascist dictatorships which were instituted in 1938 and 1940, dissolving the Parliament and eliminating the separation of the Legislative and Executive. The restoration of a constitutional regime in 1944 was short-lived, and, when in 1947 the legitimate constitutional monarchy was abolished, the rule of law was abolished too for almost half a century. Instead, the terror of law was instated.
The questions of legality and of the rule of law during communist dictatorship could be, and were actually misleading when examined from afar, for the country continued to have a constitution, laws, and even a legislative which formally guaranteed the separation of powers. In theory, during the Cold War and even after its end, any Westerner knew that the Communist countries were ruled by totalitarian regimes, and that the rule of law was dramatically absent in these regimes. But the precise mechanisms of this absence, the ways and means by which the political and legal system of these countries were distorted to mimic a State ruled by law while insuring instead its very lawlessness were of no interest, because nobody envisioned a future in which Eastern Europe could become again a part of the civilized and democratic world. The restoration of the rule of law behind the Iron Curtain was not a project, not even a hope, which meant that the precise ways of undoing what the Communism did were never an objective, either in theory or in practice.
In 1998, when in Albania in only three days all the institutions of the state collapsed in a general and criminal chaos, Ismail Kadare wrote the greatest evil of the communist dictatorship was their explicit subordination to the Communist Party.
If we examine now what happened in Romania during the Communist regime, we can conclude that there were three levels of distortion and destruction of the legality. From top to bottom, we must observe first the radical politization of the judiciary, both of the courts as institutions and of the magistrates as persons: let me remind you that the magistrates must swear their allegiance to the Party, enter its ranks, and that many of them were recruited also by the secret political police. The blatant subordination of the legislative as an institution went aside with the subordination of the lawgivers as individuals to the political power. Second – and deeper - we must observe the perverted formulation and use of laws, and, at the core of this process, the fact that the very roots of the law were destroyed. For what is the abolition of the right of legitimate property and of any form of habeas corpus if not a dismantlement – not of the law, but of the reason and essence of any legal system?
If we omit to take into account this profound and destructive perversion of the basic level of any form of legality, we cannot understand either what happened during the almost fifty years of the Communist dictatorship, or the too long and painful healing process which is now in progress in all the former Communist countries. Yes, all our countries adopted new, democratic constitutions, which finally guarantee the basic rights of the citizen. But not only individuals, even institutions and government officials are not eager to comply to their rules. In Romania, for instance, the first constitution after 1989 proclaimed in theory the private property as the basic principle of society, but at the time of its adoption, back in 1991, the right to a legitimate private ownership was not guaranteed, it was only protected by the constitution. It took almost ten years to persuade the leaders of the political parties which inherited the Communist legacy that the property must be guaranteed. It was even more difficult for them to understand that no guarantee was real if the democratic state did not give back what the Communist state robbed from the legitimate owners back in time. Only after years of debate, in a historical meeting at the Presidency in 1999, I succeeded to persuade all the political leaders of Romania to adopt a declaration which assumed the principles of private property and of the reparations due to those who were deprived of their rightful property. In practice, even now, after 19 years of rule of law, almost ten years after the declaration I mentioned, the process of restitution of the properties is far from being complete.
As for the rights of the citizen, almost fifty years of abuse have left deep scars in the social tissue. Think that in Communist times no one could be assured of his or her freedom, even when he or she obeyed the law. How many people were arrested for a letter of protest or for a joke told to a friend? How many women were submitted to a degrading oppression, not for the encroaching of the law, but just to prevent an intention to eventually trespass it? How many people were arrested illegally, tortured and beaten, even killed while in prison – and I do not refer only to a distant, Stalinist past, but to the years of the so-called liberal and pro-Western Ceausescu regime.
Old habits die hard. In the first years after the Revolution, Romania was plagued with dramatic transgressions of the law by the very institutions committed to enforce the law – the police, the magistrates, the army, and even the head of state, its president. In the well known violent and recurrent invasions of the miners they acted in collusion with the law-enforcement institutions to violate the most elementary freedoms of citizen. The reluctance of the justice to recognize and punish the deeds which, during the Communist regime and after, violated the law, prove the fear of responsibility for precedents, and a complicity in subverting the rule of law by the very institutions that must guarantee it.
At the middle, so to say, the elaboration of new laws, either internally conceived, or adopted in the process of the European integration from the acquis communautaire, become very active in the last ten years. Too active, one can say, and plethoric, mostly because the fifty years of Communist lawgiving installed deep down a crooked and perverted principle: that only what is permitted in an explicit way by the law is free and guaranteed. Instead of practicing a restrained and clear formulation of the law, leaving free what is not forbidden, the post 1989 legislative trend was instead to legalize any desirable detail, in fear that, if not explicitly allowed, it will not be possible to obtain. I remember that, when a law of education was adopted in 1995, an article which stated that usually the marks in all educational institutions should be ten out of ten was on the verge of being added to the law.
On the contrary, too often, the adoption of some essential constitutional laws, such as the law of the accountability of the dignitaries, or even for the referendum, were postponed, again and again; not to speak of some very profitable lacunae, as in the case of money-laundering, bankruptcy, or even the protection of the monuments and artistic objects.
On the other hand, many vague, inappropriate and confusing formulae persist, either by negligence or by mischief, creating too many ways for the interpretation of the same law and generating havoc in the jurisprudence. Too often, the laws tell what it may, not what it must to be done. This vagueness may be, at least on the surface, the result of inexperience of the lawgivers, but it is, deeper, a legacy of the Communist past, when the law was confusing and vague by purpose, to allow the “lawful” condemnation of anybody as an enemy of the people, a saboteur of the socialist economy, or as a subversive agent of the West.
Last, but not least, the pervasive politization of the judicial in the Communist regime must be understood in its complexity. By the 1948 constitution, the unique Communist Party was explicitly proclaimed the leading force of the state, which implied the explicit subordination of both the lawgivers, who adopted the laws, and of the magistrates, which applied it, to the Party rules and Party representatives. In fact, any law which was not, by its essence, an emanation of the Communist regime - for instance the common law – was bended to the will and interests of the Communist regime, and even to its privileged members. Both in the common and in the penal lawsuits, the interest of the state was automatically superior to the individual interest, nobody stand any chance in justice if his or her opponent was a public institution. On the other hand, any prosecution was in fact dependent of the political and social status of the parties in conflict, a fact that was obvious, for instance, in divorces and similar civil causes. Any political dissidence could be prosecuted as a banal penal crime, for instance by accusing a protester to detain foreign currency, or to be a homosexual, or to use drugs, even when it was untrue and when the evidence was fabricated and planted by the political police. A network of complicity between the Securitate, the prosecutors and other magistrates, the coroners and other legal experts, perverted the entire system. The very reluctance to judge today in lawsuits which can and will prove these complicities of the past, as in the case of not a few political assassinations which came to the courts only after 1989 is vitiating even today the entire judiciary.
It is true that the immovability of the magistrates is a precondition of an independent justice. But once applied, it resulted also in the absence of any lustration in the judiciary system, which is a conspicuous vulnerability of the magistrates to political blackmail. Corruption is only one facet of these evils. A judge was asked once by a friend if at the Supreme Court they received often telephone calls from the politicians, he answered briefly “we don’t need them to ask, we do what we have to do by ourselves”.
My purpose is not to claim that the rule of law is not the basic principle in the present Romania, Quite the contrary, I will say that, in spite of all its heritage from the past, in spite of all this drama and pain, Romania struggles to fully implement the rule of law. But, in my view, any society which aspires to institute or reinstate the rule of law must know that this is far from being an automatic process, a sudden and painless epiphany of the law. It is a long and hard struggle, both with the past and with the present. It is a hard struggle to create institutions, and a harder one, to make them function and work properly. It is a constant struggle, not only for the politicians or the judiciary, but for the society as a whole. It is a struggle not for a day or a year, but for a lifetime. A struggle which needs insight, and which needs courage.
You certainly remember, ladies and gentlemen, Plato’s dialogue Crito, in which he depicts Socrates unjustly condemned to death, but who refuses to escape his fate by exile. Even if few of us, philosophers or not, will be confronted, as once Socrates was, with such a dramatic situation, it is worth thinking to such a fundamental choice: to save his or her life in spite of the law, or to save his or her conscience, even if not his life, with and within the law. It is up to each of us to make the right choice.