Preamble
The rule of law is the foundation of all other rights. Without the rule of law, nothing else works. Without the rule of law, there is no contract system, there is no protection for intellectual property, there is no protection for personal security and abuse. Hence, the rule of law is not just a “nice to have”, it is an absolute necessity for success. The rule of law is not merely an issue for developing countries; it is under constant threat in all countries of the world and we must be vigilant everywhere. ELSA and LexisNexis wish to honour rule of law commitment among law students and young lawyers across Europe. Therefore, in collaboration, we created the ELSA x LexisNexis Essay Competition on the Rule of Law which sought to raise the awareness of law students and young lawyers across Europe and across the globe on the importance of the rule of law. We encouraged law students and young lawyers to engage actively with the rule of law by asking them to answer the following question: “How can you, as a law student or young lawyer, contribute to advancing the rule of law?” Below, the reader may find the winning essay of that competition. The essay winner was announced at the Annual Reception of ELSA, which was moved online in response to the pandemic. ELSA and LexisNexis are honoured to present the essay and hope you enjoy reading it.
Author: Vissarion Petrikis
The author is a trainee lawyer from Greece. He holds a bachelor’s degree in law from the Aristotle University of Thessaloniki and he is currently serving in the Supporting battalion of the NATO Rapid Deployable Corps Headquarters in Thessaloniki. The author is also a member of the Research Institute for Transparency, Corruption and Financial Crime of the Aristotle’s University of Thessaloniki Law Faculty and his main academic interests include criminal law, financial crime and corruption.
1. Introduction
The rule of law proved to be a very interesting essay subject. A concept so old, yet so contemporary that occupies a big share of modern days’ both academic and political dialogue. A concept that all law students know about and tend to surpass it as something self-explanatory, yet it turns out that most law scholars and legal practitioners have different theories on its definition and its consisting elements. A founding principle of the European Union,[1] which value is well established but, at the same time, serious rule of law deficiencies are detected all across Europe. Still, there is one view shared by every citizen in all European societies: The rule of law is a sine qua non prerequisite for every modern democracy.
2. The rule of law problem
If one would search for the founding reasons of this shared view, the answers would vary. One of them would be that the rule of law forms a robust triangular relationship with the value of democracy and the effective exercise of fundamental rights.[2] There can be no democracy and respect for fundamental rights without the rule of law and when deficiencies appear in one of these three pillars, the other two deteriorate as well. The framework of, among other factors, independent judiciary, equality before the law and effective access to legal remedy that the rule of law produces, fortifies and protects democracy.[3] This same framework is a necessary supplement to the respect of fundamental rights, simply because if violations of fundamental rights were not followed by sanctions provided from written laws and implied effectively by independent courts, they would end up being mere castles in the air.[4]
Another answer would be that, without the rule of law, the European Union cannot function effectively as an area of freedom, security and justice.[5] When rule of law deficiencies are observed in a Member State, the trust in the justice and administrative system of the respected State is questioned and a series of European Union innovations are destined to underperform. For instance, a recent judgment of the European Court of Justice ruled that a national judge does not have to respect a European Arrest Warrant issued by a Member State when there are rule of law deficiencies in the issuing State.[6][7] In addition, it could be added that when there are rule of law deficiencies resulting from corruption, the European internal market will as a result be heavily dysfunctional.[8] Furthermore, there is a risk that the Union’s financial aid will be misused, damaging the Union’s budget and the mutual trust which is necessary for the proper function and further development of the Union.[9]
The above are only some of the reasons why we need to address the current situation concerning the rule of law swiftly and firmly. All over Europe, serious concerns arise regarding powerful political actors threatening the independence of the judiciary, for example by trying to bypass a High Court’s final judgment ruling with retrospective lawmaking. Fundamental rights are often constrained, with the constraints being justified by security concerns or financial emergencies. The necessity and proportionality of these constraints is sometimes questionable. The malfunctions resulting from lack of transparency and corruption, as well as the Union’s efforts to build a robust framework to resolve them have already been noted above. Last but not least, the increasing tendency of hybrid (State-private) or even purely private factors taking over formerly State authority task, presents a new challenge.[10]
3. Defining the rule of law
It is well established by now that the rule of law is an absolute necessity in every modern constitutional democracy, and that the current situation calls for vigilance and action, form governments and Union organs to the last citizen. Nevertheless, in order to effectively protect and promote the rule of law in modern States, it is necessary to deepen our insight into the exact meaning of the rule of law notion. Therefore, a step back to address this matter proves timely.
Given the importance of the issue, it appears fitting that its exact definition governs a sufficient of academic literature and institutional document production. The fact that legal scholars and practitioners around Europe still have not reached a consensual definition regarding the rule of law consisting of elements, shows nothing but the vagueness and the complexity of the task at hand. When discussing the rule of law, legal practitioners do not deal with a procedural formality, but with a fluid ‘umbrella concept’. This exact aspect of the rule of law is what enables it to be an integral part of every different modern constitution and offer its protection in countries with variable political, legal and constitutional traditions and systems.
Lord Bingham, as the main modern representative from the academic point of view, provides for a general definition. In his opinion, the rule of law means that ‘[…] all persons and authorities within the State, whether public or private, should be bound and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’.[11]He then proceeds to break down the core principle and determine that the rule of law consists of the following eight ‘sub-rules’:
1. Accessible, intelligible, clear and predictable laws: When discussing this first principle, Lord Bingham underlines that the rising trend of legislative hyperactivity (which on multiple occasions even leads to contradicting laws) poses a serious threat to the rule of law.
2. Questions of legal rights and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
3. Equality under the law.
4. The laws must afford adequate protection of fundamental human rights.
5. Means must be provided to for resolving, without prohibitive costs or inordinate delays, bona fide civil disputes, which the parties themselves are unable to resolve: The rule of law calls not only for the abstract right to judicial protection, but also for its actual enjoyment from every citizen.
6. Public authority should be exercised reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limit of such powers: Along with sub rule 2, Lord Bingham appears to be concerned about the potential abuse of executive powers. Among its multiple functions, the rule of law appears to set a limit on the governmental authorities’ powers.
7. Adjudicative procedures provided by the State should be fair.
8. Compliance by the State with its obligations in international law: This is the most revolutionary of the eight sub-rules. Given the increased significance of international law (both deriving from treaties and international custom) in the adequate and holistic protection of fundamental human rights and civil liberties, this last sub-rule provides for a new aspect in the understanding of the rule of law.[12]
From an institutional point of view, the European Union’s institutions, assisted by the European Court of Human Rights and the notable work of the Venice Commission, have reached a consensus on the absolute necessary consisting elements of the rule of law, which are the following:
1. Legality.
2. Legal certainty.
3. Prohibition of arbitrariness of the executive powers.
4. Independent and impartial courts.
5. Effective judicial review including respect for fundamental rights.
6. Equality before the law.[13]
This definition does not add anything new or revolutionary to other existing definitions. However, it holds its own value. It is a more practical, accurate and comprehensive definition, adapted to the purpose of informing the citizens of the European Union’s member States about the certain aspects of the rule of law notion that apply directly in their everyday lives and their interaction with their respective States.
Finally, yet importantly, there is another list of ‘rule of law principles’ or, as its creators call it, the ‘LexisNexis rule of law equation’. It is a definition coming from people well infused in the everyday legal practice, who take part in the adjudicative system by defending and upholding rights and civil demands. This is why it should be included and elaborated further on, among the academic and institutional definitions. This equation breaks down the rule of law in four essential principles.
1. Equality under the Law: A core element of the principle of separation of powers, which can be found in every modern constitution.
2. Transparency of the Law: Meaning that the Law must be clear and precise, so that its consequences will be easily detected.
3. Independent judiciary: In order for the Law to be applied consistently and equally to all, adjudicators have to be both independent (external essence of independence), and impartial (internal essence of independence).
4. Accessible legal remedy: All the aforementioned principles would be pointless, if access to courts comes with unreasonable costs or inordinate delays, which prevent the citizens from actually resolving their disputes. In addition, the legal profession must remain independent and be left to operate freely from governmental or otherwise external pressures.[14]
Personally, I do believe that it is important to define the rule of law not just as a constitution article or as a mere legal obligation. It is important to view the rule of law more deeply, as a fluid protective shield that governs and limits every aspect of a citizen’s interaction with the State, ensuring the full enjoyment of fundamental rights and civil liberties. Principles such as legality, equality under the law and access to legal remedy are not mere formalities that should just vaguely be met. Instead, States should invest in actually implementing these principles in every aspect of everyday life, forming a rule of law culture that flows through the head of the government to the last citizen, tackling rule of law deficiencies at their core. For example, in my home country, Greece, the effective access to legal remedy is heavily challenged. Factors such as prohibitive costs, dysfunction of the legal aid scheme and most importantly, excessive delays in the publication of final court judgments that can reach up to ten years are part of the adjudicative procedure. It is clear that this situation drives citizens, especially those financially struggling, reluctant to seek judicial protection, or even not able to enjoy this fundamental right at all. This example makes evident that, even when a right is formally included in a State’s constitution,[15] its proper enjoyment, as the rule of law demands, is still not guaranteed.
4. Contributing to the rule of law
It is true that this brief introduction was not that brief after all, but it is not something to regret. As in every subject as intricate and interesting as this, in order to answer the question ‘How can you, as a law student or a young lawyer, contribute to advancing the Rule of Law?’ one first need to decompose, analyse and provide a good overview of its components. As this duty is fulfilled, I can move on to the matter at hand.
4.1 As a law student
Regarding the first part of the topic question, law students can first of all contribute to advancing the rule of law by using the opportunities that arise within their studies to educate themselves of the academic definition and the practical importance of the rule of law and be eager to research and remain informed on newer developments on the matter. Building a robust rule of law culture is also a matter of personal responsibility. Moreover, by participating in Civil Society Organisations that promote the awareness for human rights and civil liberties, such as the European Law Students Association (ELSA), law students can raise their voice and reach out to a wider audience, contributing in building a common European rule of law culture. Summer schools, workshops and conventions offered by these organisations provide an ideal environment for law students to interact, share their views and exchange knowledge on a variety of rule of law aspects.
I was lucky enough to engage in ELSA activities early in my student years. By participating in conventions, summer schools, study visits and law reviews organised by ELSA Thessaloniki and ELSA Greece, I was able to educate myself on rule of law related subjects. Most importantly, I was given the chance to exchange my views with law students originating from different cultural, legal and academic backgrounds and discuss with them the current rule of law related situation (for example, governmental powers, independence of the judiciary, corruption concerns) all across Europe. These experiences widely enriched my view on the matter and helped me understand the need of developing a common European strategy for battling rule of law deficiencies in every member State.
4.2 As a young lawyer
Moving on to young lawyers, I believe that their role in advancing the rule of law is even more crucial and competent, given their active involvement in their countries judiciary system, their deeper understanding of the matter and their bigger influence power to the public. First of all, young lawyers can greatly contribute with their participation in rule of law related Civil Society Organisations by providing their expertise. Moreover, by actively participating in judicial networks, expert groups and lawyers’ associations, they can promote awareness by informing the general public about recent relevant case law of the European Court of Justice and the European Court of Human Rights, opinions and recommendations from institutional factors like the Council of Europe or the Venice Commission (by means such as relevant newsletters, organising conferences, thus helping in the development of a common rule of law culture). In addition, through these organisations law students will be able to share knowledge with each other and initiate grassroot conversations for recent developments in their States of origin, creating a network that can recognise warning signs early. Moreover, local bar associations can quickly identify rising threats and publicly raise the alarm on them, applying pressure to governments authorities to look up and quickly resolve these issues.
However, the decisive area where young lawyers can contribute to the best of their abilities and become real-life rule of law guardians, lies within their very job description. It is true that the public holds an unflattering opinion on lawyers, and at a certain degree this opinion is well justified. Because sometimes, even lawyers forget that they are not just professionals, but officers and integral parts of the judiciary system. By faithfully serving the legal professions constitutional role and upholding the client’s legal interests with dignity, respect for the general good and by contributing to the well-functioning of the respective State’s adjudicative system, young lawyers can hugely enhance a basic pillar of the rule of law. For example, a common lawyer practice of stalling court procedures in bad faith exists. This practice serves primarily to buy the attorney some time when the possible outcome is not in favour of the client. Abolishing this practice could help resolve huge defect of many European legal systems, one that is seriously affecting the access to effective legal remedy: The inordinate delay of adjudicative procedures. Moreover, especially young lawyers can staff the various legal aid schemes in their respected countries and provide their services in defending the rights of the less well off, practically exercising the core sense of ‘Access to effective legal remedy for all’.[16]
4.3 Personal contribution
Personally, as a young lawyer, I share the view that we need to take swift and vigilant action against corruption, a prominent and growing threat to the rule of law. Corruption and lack of transparency can result in serious rule of law deficiencies, such as clouding the independence of the judiciary, enable third parties to affect the law-making process on their favour, or even diminishing the equal and complete enjoyment of fundamental rights and civil liberties.
This is the reason why I chose to devote my working experience and my academic capacity to the battle against this modern age Hydra, by participating in the Research Institute for Transparency, Corruption and Financial Crime of the Aristotle’s University of Thessaloniki Law Faculty. The Institute’s primary goal is to contribute to the planning of Greece’s institutional reconstruction towards increased transparency and more effectively addressing corruption and financial crime, based on the rule of law. For this purpose, the Institute develops activities that promote these objectives in practice and enhance awareness among State authorities as well as within civil society on the importance of the matter. These activities constitute organisation of information days, workshops and academic conventions which address, where appropriate, either an academic audience or a wider portion of the civil society. By these means, the Institute aims to inform the public and raise awareness for new developments on this crucial matter and promote grassroot dialogue wand exchange of views among the legal community. Moreover, the Institute conducts academic research, which leads not only to the publication of articles in well-known scientific publications. More importantly, it produces institutional interventions that aim to affect the legislative framework and the much needed and the urgency of the situation, while simultaneously promotes the rule of law and respects fundamental rights and civil liberties. A tightrope walker’s exercise for sure, but not an impossible one.
5. Conclusion
The advancement and proper function of the rule of law is essential for exercising fundamental human rights and civil liberties and to fully enjoy the advantages of a constitutional democracy. This is why it is every citizen’s duty to defend the rule of law from is defecting factors, while helping in the further advancing and development of the rule of law. Law students and young lawyers, due to their field of expertise, should be at the forefront of this battle, by educating themselves and the general public. In addition, young lawyers should set out an example by acting out to abolish rule of law deficiencies and advance the rule of law through the way they exercise their profession.
Sources:
[1]Treaty on European Union (Consolidated Version), Treaty of Maastricht, art. 2
[2]Communication from the Commission to the European Parliament and the Council, A new EU Framework to strengthen the Rule of Law [COM(2014) 158 final], p.4
[3]Communication from the Commission to the European Parliament and the Council, A new EU Framework to strengthen the Rule of Law [COM(2014) 158 final], p.4
[4]Communication from the Commission to the European Parliament and the Council, A new EU Framework to strengthen the Rule of Law [COM(2014) 158 final], p.4, Communication from the Commission to the European Parliament and the Council – Further strengthening the Rule of Law within the Union State of play and possible new steps [COM(2019) 163 final], p.1, European Economic and Social Committee, Opinion(SOC/627) chap. 3.4
[5]Communication from the Commission to the European Parliament and the Council – Further strengthening the Rule of Law within the Union State of play and possible new steps [COM(2019) 163 final], p.2
[6]Case C-216/18 PPU, ECHR, 25 July 2018
[7]In particular, the Grand Chamber of the ECJ ruled that, when a national judge establishes that systemic or generalised deficiencies with the rule of law exist in the issuing member State, and these deficiencies are threatening the fundamental right to a fair trial of the accused, the national judge is not bound by the European Arrest Warrant and can refuse the extradition of the plaintiff.
[8]Communication from the Commission to the European Parliament and the Council – Further strengthening the Rule of Law within the Union State of play and possible new steps [COM(2019) 163 final], p.2
[9]It is important to note that the European Union is well aware of the ongoing and graduating threat that corruption based Rule of law deficiencies pose to the Union’s budget. This lead to a Commission proposal for a Regulation on the protection of the Union’s budget in case of generalised deficiencies as regards to the rule of law in the Member States in 2018 and the recent establishment of the European Public Prosecutor’s Office.
[10]European Commission for Democracy through Law (Venice Commission), Report on the Rule of Law[CDL-AD(2011)003rev], p.13
[11]The Rule of Law, 66 Cambridge L.J. 67 (2007), p. 69
[12]The Rule of Law, 66 Cambridge L.J. 67 (2007) p. 69-84
[13]Communication from the Commission to the European Parliament and the Council, A new EU Framework to strengthen the Rule of Law [COM(2014) 158 final], p. 4
[14]The ‘LexisNexis rule of law equation’ can be found at https://www.lexisnexis.com/en-us/rule-of-law/default.page
[15]The access to effective legal remedy is set out in article 20 par.1 of the Greek constitution
[16]As set out above, the ‘Access to effective legal remedy for all’ is one of the four elements of the ‘LexisNexis rule of law equation’, which can be found at https://www.lexisnexis.com/en-us/rule-of-law/default.page
