“If the ideal of the rule of law is a stable element of public opinion, legislation and jurisprudence will strive for it closer and closer” (Father A. Hayek)

Recently, the rule of law has become an obsessive topic. In the online media, you can hear the question, sometimes rhetorical, whether Romania is still a legal state. The European Commission recently recognized that Hungary and Poland are violating the rule of law, and that compliance with this principle can be conditioned by European funds. In addition, the accession of Bulgaria and Romania to the Schengen area is associated, at least at the discursive level, with progress on the rule of law.

The daily editorial assumption about the rule of law is that we already know what the term means. According to the general opinion, the rule of law is a concept with an intuitive meaning. In addition, we may identify any deviations from this policy. On the other hand, some authors considered reference do Rule of Law an ambiguous idea, a “significantly controversial” concept or a term abused by ideological storms that has lost its meaning. In addition, there are also authors who wrote that “the rule of law is a figment of the imagination of lawyers”, incomplete in any attempt to define it (1).

Two opposing temptations can be avoided in order to create a basis for a debate about the values ​​of the rule of law and Rule of Law. The first turns the rule of law into a suitcase concept, exclusively technical, incomprehensible to public opinion. Second, it reduces the rule of law to discursive anti-corruption campaigns. Both are reductionists. Although no final consensus has been reached on its basic definitions, the conceptual core and some peripheral notes can still be identified.

The rule of law is a political-legal term derived from German theory Rechsstaat-, arose at the end of the 18th century. It appeared together with the Prussian reforms of the first civil and criminal codes. Although Immanuel Kant is sometimes called the first theorist of the concept Rechsstaatthe rationalist philosopher actually uses the term not in German but its Latin equivalent, Legal Status, with the formal meaning “state governed by laws” or “rule of law”. Later, Kant’s followers adopted this concept in the German language and introduced it into public law. Robert von Mol (1799-1875) was the one who first introduced the term in legal thought Rechsstaat. Initially, this concept was in opposition to the idea of ​​a “police state”. In parallel with the discussions in Germany, the concept of “rule of law”, which is usually translated as “rule of law”, began to be popularized in Great Britain. A book by the Whig lawyer and constitutionalist A. V. Dicey, Law of the Constitution (1885), acts as a decisive moment for inclusion Rule of Law in British Political Dictionary.

After the Second World War, the German term Rechsstaat followed by an impressive global career, as one observer notes. In French, this phrase has slowed down Edad du Droitin Italian Stato di dirittoin spanish Legal statusin Swedish Rattstatincluding in the Japanese language there is an equivalent in the linguistic form Hochicock (2). In Romanian, most likely the term State law it was taken from French legal thought. Naturalized under Frederick II, the meaning “state governed by law” means virtue kind of legal system. The Prussian King Frederick the Great remained in history not only with legal reforms in Prussia, but also with the formula of “the first government official of the state”, in contrast to the absolutist reflexes of the monarchies of that time. On the other hand, normative reflections on what prerequisites the law should meet have their roots in Greek and Roman antiquity.

The paradox is easy to see. Rule of Law (Rechsstaat), or the rule of law (Rule of Law), no one disputes. On the other hand, the often unbridled passions with which the rule of law is problematic have not been accompanied by a more analytical and balanced perspective. For example, it is believed that the rule of law presupposes, first of all, legality, compliance with existing laws. The legal system also exists in totalitarian states, and we would not say that the laws of repressive regimes should be fully respected. The absence of new cases of major corruption, they say, means that the rule of law is dormant. Often, the rule of law is reduced to one meaning, which overshadows other meanings of the concept. In the following lines, a broader presentation of the architecture of the rule of law, a multi-level concept, may be useful.

The rule of law was enshrined as a constitutional principle for the first time in history in the Basic Law of Bavaria (1946), then in the Federal Constitution of Germany (1949). After the wave of democratization in the 1970s, and especially after the collapse of communist regimes in 1989, the rule of law was recognized as a constitutional principle in a surprising number of new democracies. At the supranational level, the rule of law is also recognized as one of the main pillars of consolidated Euro-Atlantic democracies.

This process of semantic convergence contributed to the emergence of methodologies for assessing the rule of law in the form checklists or in the form of a set of quantitative indicators. For example, in the annual report on the rule of law in Romania, the European Commission emphasizes three themes – the justice system, the legal anti-corruption framework and media pluralism and press freedom. The Venice Commission developed another example of the implementation of the rule of law. The used methodology distinguishes six spheres: 1) legality; 2) legal certainty; 3) prevention of abuse and misuse of power; 4) equality before the law and non-discrimination; 5) access to justice; 6) specific challenges to the rule of law (corruption and conflict of interest, collection of personal data and surveillance). Finally, the World Justice Project has developed a global quantitative rule of law index. It covers eight dimensions: 1) limitations of executive power; 2) absence of corruption; 3) openness of the government; 4) fundamental rights; 5) order and security; 6) compliance with the legislative framework; 7) civil proceedings; 8) criminal justice. The latest report of the World Justice Project, published in October 2022, confirms the slow regression of indicators regarding Rule of Law in the case of Romania, for three consecutive years.

There is certainly a temptation to see the extended question of the rule of law as a technical issue. Part of this risk cannot be avoided. Some of the current debates may seem fruitless. On the other hand, there is no doubt that the values ​​of the rule of law are inextricably linked to modernization and economic development and, of course, to democratic consolidation.

A classic study by economist Robert J. Barro is often cited as the first thesis, which shows that global hierarchies of indicators Rule of Law are taken into account in the country’s risk assessment when deciding on foreign investments (3). In other words, the better the community’s performance on the dimensions of the rule of law, the more attractive it is to large investors. The second thesis that a consolidated democracy implies a functional and reliable rule of law does not require additional arguments. A democracy without the rule of law can only be an “illegal state” or a “lawless state”.

Since the text of the 1991 Constitution, Romania has joined the club of post-communist democracies that define themselves as “rule of law”. The 2003 revision of the Basic Law added two paragraphs to Article (1), reaffirming the principle of separation and balance of power and the principle of the supremacy of the constitution and laws. Two political values ​​fall, of course, under the auspices of the principle of the rule of law.

The rediscovery of the rule of law after 1989 was, one might say in retrospect, rather formal. The legacy of “socialist legality” opposed to bourgeois law, which, according to Marxist dogma, only reflects the interests of the ruling class, could not be destroyed instantly. And that is why the integration of Romania into the European family in 2007 was determined, the course in the EU is correlated with the Cooperation and Verification Mechanism. According to the latest MCV report, a number of measures still need to be taken to achieve Romania’s baseline targets. Similarly, the European Commission’s latest report on the rule of law lists specific outstanding targets for the rule of law. Among them are “ensuring an effective public consultation procedure” for the legislative process and “editorial independence of public broadcasters”. And last but not least: in December, the Venice Commission will decide on the adoption of three laws on justice, namely the bill on the judiciary, the Statute of prosecutors and judges, and the organization of the High Council of Magistrates. Read the whole article and comment on Contributors.ro