Understanding the Rule of Law: Part 1 of a Special Replay Series About Democracy and the Rule of Law

This is Don Federico, host of Higher Callings.

I began this podcast in the summer of 2021 with the goal of shining a light on the good work of lawyers and others who through their careers and their volunteer service have devoted themselves to the common good. Since it began, Higher Callings has published 34 episodes featuring 28 inspiring guests and we are currently working on more.

Because we're now entering election season, we've decided to republish excerpts from some of the past episodes that listeners may find relevant to their voting decisions. Several of our interviews have focused on democracy and the Rule of Law, both at home and abroad, with guests who are particularly experienced with and qualified to discuss those topics. So, over the next few weeks, we plan to roll out relevant clips from those and other episodes.

What follows is the first clip from one of our most recent episodes, recorded in April of this year. It features Betsy Anderson, the Executive Director of a nonprofit organization called the World Justice Project, and Karen Green, a retired Massachusetts judge and lawyer and current member of the Project's Leadership Council.

In this clip, Betsy, Karen, and I discuss what the Rule of Law is and why it is an important pillar of a free society. In a subsequent episode, we'll hear more about the work of the World Justice Project, including its findings with respect to trends in the Rule of Law worldwide and in the United States. And of course, if you'd like to hear the full episode describing in more detail the important and fascinating work that WJP does, you can find it on the Higher Callings' website or on your favorite podcast platform.

Don: I know a lot of the work that WJP does involves the Rule of Law. That's a term that gets bandied about a lot and I think it means some things to some people and different things to other people. But I'm wondering, Betsy, I know your organization has a definition of it. I just wonder, before we get too much into this conversation, I think it would be helpful if we explain to listeners what we mean when we say the Rule of Law.

Betsy: Sure. Well, it's actually a really important place to start because as you mentioned, we hear this phrase all the time in popular media, but it's often misused. In fact, I have an ever- growing file of news articles in which two people on different sides of different issues have claimed that their position is the Rule of Law position. And that's really confusing, I think, to the general public.

So what we mean when we talk about the Rule of Law at the World Justice Project, and I should say this is not just us, this is an approach that has been embraced by the UN and is widely accepted around the world. We take a pretty broad and comprehensive approach to the Rule of Law. It's not just the laws and institutions on the books, but how are they working in practice.

And our definition is that the Rule of Law is a durable system of laws, institutions, norms, and community commitment -- that's an important piece, that the whole community has to be a part of it -- that delivers on four universal principles. Accountability: that means both of private and public actors. Just laws: that the laws are clear, publicized, and stable, and applied evenly, and that they ensure basic human rights. Third principle is open government: that the processes by which the laws are adopted, administered, adjudicated, and enforced are accessible, fair, and efficient. And finally, that there is accessible and impartial justice: that justice is delivered timely by competent, ethical, and independent representatives and neutrals, like Karen, who are accessible, have adequate resources, and reflect the makeup of the communities that they serve.

Don: That's quite a definition. And I guess if anybody wants to go back and look at it, that can be found at the WJP website too.

Betsy: Absolutely, in five different languages.

Don: Okay. And that's worldjusticeproject.org, right?

Betsy: Correct.

Don: Okay.

Well, I asked that question in part because it was just a few months ago, I think, when I heard somebody use the phrase Rule of Law as kind of an equivalent of what we used to hear and maybe still do as law and order. You know, before there was a TV show by that name. I know we're all probably old enough to remember when Richard Nixon was President. He was the law and order President. Even before that, when we look at what happened in Chicago at the Democratic National Convention in 1968, the sending in of the police, I guess it was. I don't think it was the National Guard, right? In Chicago.

But the troops that went in, that was all because law and order had to prevail. And that was a phrase that I've always understood to mean law enforcement. Law enforcement kind of dominating and stifling dissent, which is very different from the Rule of Law as you just described it and as we know it.

Betsy: Absolutely. We often talk about the distinction as the difference between Rule of Law and rule by law And what you're describing in law and order is really more rule by law But that distinction, it's quite fine and often lost on people.

Don: It's pretty subtle, but it's important. And I guess, just the phrase Rule of Law itself should be self-explanatory The law rules. It's not a person who rules.

Betsy: Right. That's often, one of the shorthand expressions is no one above the law, or a government of laws and not men, or people.

So, coming back to the law and order, that means the law applies also to the law enforcement. So they are bound. Certainly law enforcement is part of Rule of Law. But that's only half of the equation. That power is also constrained by law.

Don: Yep. Karen, were you going to say something?

Karen: I was just going to say that WJP's definition is not rule by law regardless of whether those laws are fairly, equitably, transparently, consistently, and justly enforced.

Don: Okay.

You know, it strikes me, we're going to move beyond this in a minute, but before we do, I just want to say, it strikes me what an extraordinary time we're in in this country right now for the Rule of Law.

We just heard a Supreme Court argument about separation of powers and the power of a President, which is a very important Rule of Law issue. We now see a former President on trial in a state court in New York for alleged criminal conduct. So, we're seeing really extreme examples of the Rule of Law playing out in our country right now in ways that maybe we would never have predicted. And I think it's a test. I think our Rule of Law in this country to some extent is being tested.

And I don't mean that in a partisan way. Whichever side of the political debate you support, I think you'd have to admit that if you're focused on the Rule of Law, these are really extraordinary times.

Betsy: There's no question. Yeah. This is in many ways the issue of our time.

Don: And I guess, the one last question before we move on is why does it matter? Why is this so important? Why do you have a whole organization that is committed to the promotion and assessment of the Rule of Law throughout the world?

Betsy: Well, we at WJP, and our data bears this out, really think that the rule of law is foundational. That this is kind of critical to so much that we are trying to achieve in our societies more broadly. That the Rule of Law creates kind of a level playing field in which communities can prosper, in which there is opportunity and justice and peace. And we see that.

I'll tell you in a bit, about our Rule of Law Index. It's an annual measure of the Rule of Law that we do globally. And we can see in that data very clear correlations between Rule of Law and GDP. Rule of Law and health outcomes.

Don: And these are positive correlations.

Betsy: Absolutely, absolutely. The more Rule of Law, the longer life expectancy or the lower infant mortality, for example. The more Rule of Law, higher levels of education in societies. So, these are correlations. The causal relationships are rather complex, but we believe quite fervently that the Rule of Law contributes significantly to these outcomes.

Don: And it's certainly always been an important foundation for the United States, from its founding.