This blog is post 3 in the SLSA blog series ‘Empirical Approaches to the Rule of Law’, which takes a socio-legal and citizen-focussed approach to the rule of law, exploring its social foundations, innovative methods, and perspectives from Hungary, Poland, Germany, the Netherlands and Serbia. The series is guest edited by Dr Erin Jackson, postdoctoral researcher at the University of Groningen on the comparative research project CITIZENS-LAW, which aims to strengthen the rule of law in the EU through mixed method research on societal conceptions of law.

Jaroslaw Kantorowicz, Associate Professor, Leiden University

The meaning of the rule of law

Although the term “rule of law” traces back to the late 19th century and is widely accepted today, there remains no consensus on its precise meaning [1]. The term lacks a universally accepted definition [2], and as some describe it, the rule of law is an “essentially contested” and multidimensional concept [3]. In legal studies, the major debate centers on whether the rule of law should be viewed as a thin concept—focusing solely on the characteristics of the legal system such as its stability and the transparency of laws—or as a thick concept that also includes rights and liberties [4]. A related discourse explores the virtues of the rule of law, which range from offering predictability to mitigating arbitrary power.[5] In the social sciences, in turn, economists [6] regard the rule of law in terms of the security of property rights, while political scientists [7] relate it to checks on government authority [8].

The absence of a clear, unified theoretical conceptualization of the rule of law poses an important question: How can one assess whether those in power are violating the rule of law if there is no consensus on its definition, and if the rule of law holds different meanings for different actors?

Citizens’ enforcement of the rule of law

It is commonly believed that elites and judges are well-equipped to determine violations of the rule of law and are positioned to restore it when necessary. However, in the fields of constitutional and public law, which regulate state and government behavior and actions, formal political and judicial enforcement mechanisms may be either absent or weak. In such cases, it ultimately falls to the public to hold governments accountable for abuses of power and violations of the rule of law.

The enforcement role of citizens is prominently featured in the model developed by Barry Weingast [9]. In his micro-foundational theoretical framework, citizens are defined as guardians of democratic institutions and the rule of law, holding elites accountable for any violations. However, two (coordination) conditions are necessary for this enforcement action on the part of citizens to occur. First, citizens must coordinate their understanding of the rule of law so that they acknowledge that the rule of law in a particular instance is violated. Second, they must be willing to undertake costly actions (e.g., protests, voting) against violations. Fulfilling these two conditions leads to greater state adherence to the rule of law as those in power have incentives to comply with it.

To date, our understanding of how citizens define and value the rule of law, and how their conceptualization differs from that of legal experts, remains limited. Similarly, knowledge is scant regarding whether the public is willing to defend the rule of law and what mechanisms can motivate such defense. In what follows, I will try to shed some light on the first necessary condition; the one related to the (coordinated) public understanding of the rule of law.

How does the public define the rule of law?

Our recent article, co-authored with Jerg Gutmann and Stefan Voigt, provides insights into how the public defines the rule of law concept using data from a conjoint experiment in Germany and Poland [10]. Germany and Poland are similar in many ways (e.g., legal systems/legal families), yet they differ crucially in terms of adherence to the rule of law standards. The purpose of our experiment was to identify key rule of law attributes according to respondents and examine if respondents confuse the rule of law principle with features of democracy, namely elections. 

Overall, results in both countries were similar. In Germany, the most important attributes of the rule of law were “fair trials” and “no corruption among judges”. In Poland, “fair trials” and “judicial independence” ranked highest. Despite government challenges, Polish respondents placed a high value on judicial independence. Their views were likely shaped by public debates and criticism from European institutions regarding the Polish government’s actions that undermined the judiciary. In both countries, attributes related to the stability and predictability of laws were less strongly associated with the rule of law, suggesting that these highly procedural and formal elements [11] were the least important constituent parts of the rule of law.

One notable difference between these two countries was regarding elections. In Poland, respondents associated the attribute of elections ensuring politicians act according to the citizens’ will—a core democratic principle—with the rule of law less than in Germany. This suggests that Polish respondents distinguish somewhat more clearly between the rule of law and democracy concepts. Generally, this indicates that campaigns designed to help people distinguish between these two concepts could be beneficial.

While, prima facie, the differences between Germany and Poland seem minor, suggesting a potential unified understanding of the rule of law, questions remain. Are the variations in how people define the rule of law also insignificant among subgroups within the same country, such as among individuals with differing political attitudes? Likewise, what if we allowed respondents to define the rule of law freely, without a pre-determined list of attributes, like in the conjoint experiment? Recent advances in survey design suggest that open-ended questions can more effectively reveal respondents’ first-order preferences and attitudes [12]. While closed questions offer the benefit of standardization and ease of analysis, they may overstate preferences for pre-defined options, limiting respondents’ true opinions.

Exploring definitions of rule of law through open-ended questions

In a recent quota-representative pilot survey in the Netherlands, I asked respondents to provide their definitions of the rule of law by posing the question: “Describe what the rule of law means to you. Use at least 50 characters”. To identify if political attitudes correlate with how respondents define the rule of law, I grouped participants by self-identified positions on the political spectrum, that is, left, center, and right.

The results, presented in a word cloud format in Figure 1, show noticeable differences in how respondents approach the concept. Those with left-leaning attitudes emphasized that “everyone” should follow the “laws” and “rules”, highlighted “independent judiciary” but also, to some extent, confounded the rule of law with “democracy”. Respondents in the center focused on “equality” before the law and emphasized “rights”, “fairness”, and “justice” dimensions of the rule of law. On the right, respondents associated the rule of law with issues such as “enforcement”, “punishment”, and having a “good” society and legal system. These variations highlight key differences in how people perceive and define the rule of law, signaling the need for further research. This includes comparative studies across various countries and different demographic groups within those countries.

Figure 1. Wordcloud displaying the most frequent words among respondents with varied political leanings

Note: The text underwent standard text preprocessing steps, including stemming. Occasionally, stemming results in the conversion of “y” to “i”, as seen in the term “judiciari”.

The findings may also suggest that there is potential for developing education and communication policies to promote a more unified understanding of the rule of law. Improved coherence in understanding the concept could help citizens better coordinate in identifying violations of the rule of law by governments. Although identifying violations is crucial for citizens to defend the rule of law, it alone is insufficient as citizens must also be willing to engage in costly actions to enforce it. This latter aspect is a central focus of our ongoing research.

References

[1] For various academic debates on the meaning and values of the rule of law, see, for instance, Meierhenrich, J., & Loughlin, M. (2021). The Cambridge Companion to the Rule of Law. Cambridge University Press, Cambridge, UK.

[2] The European Union, which for long time promotes the ideals of the rule of law in its treaties (see Article 2 of TEU), only recently has put forward an official definition of this term. Article 2(a) of the EU Regulation 2020/2092 states that: “‘the rule of law’ refers to the Union value enshrined in Article 2 TEU. It includes the principles of legality implying a transparent, accountable, democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers; effective judicial protection, including access to justice, by independent and impartial courts, also as regards fundamental rights; separation of powers; and non-discrimination and equality before the law”.

[3] Waldron, J. (2002). Is the rule of law an essentially contested concept (in Florida)? Law and Philosophy, 21(2), 137-164.

[4] Craig, P. (2017). Formal and substantive conceptions of the rule of law: an analytical framework. In Bellamy, R. (ed.). The rule of law and the separation of powers (pp. 95-115). Routledge.

[5] Raz, J. (2019). The Law’s Own Virtue. Oxford Journal of Legal Studies, 39(1), 1-15.

[6] See, for instance, Acemoglu, D., Johnson, S., & Robinson, J. A. (2001). The colonial origins of comparative development: An empirical investigation. American Economic Review, 91(5), 1369-1401.

[7] See, for instance, Graham, M. H., & Svolik, M. W. (2020). Democracy in America? Partisanship, polarization, and the robustness of support for democracy in the United States. American Political Science Review, 114(2), 392-409.

[8] For a synthetic overview of the academic discourse on the rule of law, see Kantorowicz, J., & González-Bustamante, B. (2024). Exploring the Rule of Law in Academic Discourse: A Comprehensive Bibliometric Analysis. https://doi.org/10.31219/osf.io/sgf8y

[9] Weingast, B.R. (1997). The Political Foundations of Democracy and the Rule of Law. American Political Science Review, 91(2), 245-263.

[10] Gutmann, J., Kantorowicz, J., & Voigt, S. (2024). How do citizens define and value the rule of law? A conjoint experiment in Germany and Poland. Journal of European Public Policy, 1-27, online first.

[11] Both “stable” and “predictable” laws are procedural (thin) features of the rule of law. They are closely related to the rule of law aspects derived by Fuller, L. L. (1965). The Morality of Law. Yale University Press.

[12] Ferrario, B., & Stantcheva, S. (2022). Eliciting People’s First-Order Concerns: Text Analysis of Open-Ended Survey Questions. AEA Papers and Proceedings, 112, 163–69.