The Rule of Law Index and the Disturbing Trend it Reveals: Part 2 of Our Democracy and Rule of Law Replay Series

This is Don Frederico, host of Higher Callings. In Part 1 of our special replay episodes on Democracy and the Rule of Law, we heard Betsy Andersen and Karen Green of the World Justice Project tell us what the rule of law is and why it is so important to a free society. After all, who among us wouldn’t want to live in a country governed by laws made by the people, rather than by a king who is above the law?  

Each year since 2008, the World Justice Project has created a tool called the Rule of Law Index. The tool ranks 142 countries based on surveys conducted in each country regarding the strength of the rule of law within each country’s border. Governments that support a free and open society use the surveys to identify areas where they are doing well and areas where they can better promote the rule of law.  

In this Part 2 of this special podcast series, Betsy and Karen describe some of the fascinating, and in some cases disturbing, results of the surveys, what they show about trends in the rule of law worldwide and in the United States, and what lawyers and others can do in their communities to support the rule of law. As with Part 1 of the series, the full episode is available wherever you get this podcast. 

Now here’s part 2 of our series, featuring Betsy Andersen and Karen Green.  

Don: We've been talking about the Index, but we haven't actually described it for people.

And I guess I'm thinking of it right now as, if somebody is familiar with the college rankings that U. S. News puts out, it just measures different things about colleges, different factors, and then it comes up with a ranking, and everybody who has college age children or has been to college recently should be familiar with those.

And this is something very similar. There's a lot more that goes into this than I suspect goes into U. S. News college rankings, though I don't really know what they do. And you end up with a list of countries and they're ranked from one to 142. First, they have a point score and their point score then translates into a ranking of number one through 142, one being the strongest in the Rule of Law Index and 142 being the weakest in the Rule of Law Index, right?

Betsy: That's right.

Karen: But you can slice and dice the data for any particular country as well.

Don: In other words, you can dig right into all the different factors that they consider.

Betsy: And that's quite interesting because many countries may be in one place in their overall ranking, that's the average of the eight, but in any one of those factors, they could have some real weakness.

Don: And I actually saw that, and we're going to talk about that in a minute, with the United States ranking. But before we get to that, I guess the value of that is they can see where they're weak and where they need the most work, and they can dedicate resources to that if they choose to do so.

Betsy: Yeah, and the ranking gets a lot of attention. And when we first started the Index, we didn't have the rankings in the first edition or two. And there was a lot of debate internally about whether we should do that, or would it become really distracting? In the end, we decided to do it. It is attention getting. Countries care about where they are, particularly vis a vis their neighbors.

But when we get into dialogue with governments, we really try to move attention beyond the rankings and talk more about the scores on specific issues. And most importantly, which direction? What's the trend? Are they moving up or down in their score? And that's what we care about most.

Don: Yeah, that comes out in the reports you produce. All of this again is on the World Justice Project website. I'll put a link to the website in the show notes for this episode of the podcast. But there is a lot of focus in the summaries of the rankings and the scoring on directions, and how many countries are doing better compared to previous years, and how many countries have gone down in their points in the rule of law from previous years.

And I have to say, I'm concerned about what I see. There are more countries that seem to be falling in the rule of law than countries that are doing better in the rule of law. Do you want to talk about that?

Betsy: Yeah, unfortunately that's a persistent trend that we have seen since 2016. That's what we really mark as the beginning of what we characterize as a rule of law recession. Every year since 2016, we've seen more countries declining than improving.

Don: Is that the year you started the Index or did you start it before that?

Betsy: No, we started back in 2008. But it's been really since that period.

Don: And am I right, it's been a consistent downward trend for those years?

Betsy: Yes and no. Among all those countries, it's not the same countries declining every year. It's a majority every year that is declining. But many countries go up and down. But overall the vast majority have declined over that period. And each year, a majority has declined.

Moreover, what we find is that the declines, the countries that are declining in the Index, the declines are steeper than those that are improving. Overall, that, too, is quite concerning. And we see many countries declining year over year. It's only a handful that are improving year over year.

Don: So I have to say, I've looked at the Index and a few things jumped out at me. The first thing that jumped out at me was your top seven countries. They're all in Northern Europe. It's Denmark, Norway, Finland, Sweden, Germany, Luxembourg, and the Netherlands. Do you have any hypothesis or theory about why those countries that are located in that particular region are doing so well?

Betsy: There's strong commitment to these values in those countries. It's reflected in their constitutional order and in the institutions that implement those constitutional structures. They are wealthy countries, so they are able to invest in their justice systems in ways that I think generate positive outcomes. They are generally more homogenous countries. And so they don't have some of the tensions and issues of discrimination that are reflected in negative scores in the Index as well.

Don: I was a little disappointed to see where the United States is in the ranking. The United States as of 2023 was at number 26. The U.K. is at 15. But some of the countries, in addition to the ones I just rattled off, that are ahead of the U.S. in the rankings include countries like Estonia, Japan, Lithuania, Czechia, Latvia, Spain, and Uruguay. For a country that prides itself so much on our Declaration of Independence, our Constitution, our system of government, our separation of powers, I was just surprised that we're not in the top 10 at least. Maybe I shouldn't be surprised. But the United States ranking also has been falling as I understand it, right?

Betsy: It has, yes, since 2016. Again, those trends have been playing out here in the U. S. as well.

Don: Karen?

Karen: I was just going to say there was a slight uptick improvement after 2020, but then it declined again in 2023.

Don: Yeah. And then I want to talk a little more about the findings, and then I want to hear from you, Betsy, about. what can be done. I guess in our own country, maybe what can be done in other countries as well.

But I looked at some slides you had presented to the American Bar Association, and they summarized some of the data, in particular with respect to the United States. And this is what really shocked me. On the category of accessibility and affordability of civil justice, the United States ranked 115. On discrimination, 106. On impartiality of the criminal justice system, 109. On the absence of discrimination in civil justice, 124. So we must have done pretty well on some other categories to end up at 26, but those scores are just horrible.

And I wonder, as I think about the meaning of those categories, the one common thread I can discern is race. That there's a lot of potentially race and our racial strife in this country, racial tension is contributing to all of those scores. But maybe that's not right. And I thought I'd just ask you what you read into those numbers.

Betsy: Yeah. I think race is certainly a part of it, but there's more than that. And maybe I can drill down on accessibility and affordability of civil justice as an example, where the U. S. is 115th, as you mentioned.

And certainly that is a challenge for people of color in this country, but not just for people of color. Our research, and we've done separate studies beyond the Index of access to justice. We did legal needs surveys in 101 countries, including the United States, and found pretty astonishing data about the prevalence of legal problems that people have. The data suggests that over 60 percent of Americans have had a legal problem in the last two years prior to when this study was conducted. And the vast majority did not turn to lawyers and courts to solve those problems.

The most common reason they didn't is that they didn't even understand their problem as legal. So we have a basic issue around education of people about their legal rights and the avenues for redress. And then there were significant problems about affordability of assistance and whether people could afford legal counsel or other assistance needed to solve their problems, and other barriers of that nature that prevent people from accessing justice. So yes, race is a factor, but it is not the only factor.

Don: Okay, yeah.

I guess I'm wondering what do other countries do that we aren't doing? The countries that are doing better in these categories, what are they getting right that we're getting wrong?

Betsy: There are a range of strategies and approaches, and we often emphasize that the solution has to be tailored to each context. It's not a cookie-cutter approach where you can say, "Oh, Estonia's got it figured out. Let's try that here in the United States." Because it's a very different context.

But where we see progress are jurisdictions that are embracing principles of openness in their justice system. They are embracing deregulation, elimination of red tape and complicated legal requirements, simplifying forms, making it easier for people to understand and navigate the system.

And jurisdictions that are embracing technology. And Estonia is a great example of this. They've probably got one of the best systems in the world in terms of, it's a small country so they can afford to do it and do it efficiently, but they've really embraced technology in their justice system in ways that are contributing to efficiency and effectiveness and justice outcomes.

Don: What can governments, bar associations, lawyers in the United States be doing? Do you have any concrete recommendations other than just pouring more money into the system to support legal services for people that can't afford their own lawyers?

Betsy: Yeah. Specifically on affordability and accessibility of the justice system, there is a lot of innovation underway in the United States and other places.

Most states have an Access to Justice Commission and there's great work being done there to study what are some of the obstacles that people face and design reforms and laws and processes to make it easier for people to solve their problems. Bar associations and lawyers can get involved with and support those efforts.

More broadly, beyond the affordability and accessibility of the justice system, thinking about other rule of law challenges in the United States, I think it's critically important that we educate our citizens about the justice system and about the rule of law.

Don: Civics education is just so pathetic in our country. We've gone downhill quite a bit, as far as I can tell.

Betsy: We really have. And I know Karen cares a lot about this, so maybe she wants to jump in with some ideas.

Karen: I was just going to say that there are organizations and bar associations throughout the country who are trying very hard. to come up with creative ideas, including the use of AI, which is being used in interesting ways to simplify forms, make things easier for people who wish to access the justice system. But we do have a long way to go.

Don: Yeah. And civics education is much broader than that too. It's not just about the justice system. It's about government as a whole. And I think I read somewhere in one of the reports that WJP puts out, that is an area that needs focus more broadly than just in terms of providing affordable legal services.

Karen: I think also that there's a need to educate younger folks about history, and what we can learn from history. I heard several people recently speak about how, particularly currently, knowing one's history can help one understand how to get over some of the problems we're now confronting.

Don: Absolutely. Go ahead, Betsy.

Betsy: Yeah, I was just going to say, really coming back to our earlier discussion about the definition of rule of law, I think that lawyers and bar leaders in particular have a role to play in standing up for the true rule of law ideals and refuting those who misuse the concept, abuse the concept. And I encourage folks to do that in their everyday conversations, op-eds, letters to the editor, any opportunity that they can.