Populism and the Rule of Law

By Ian McDougall | President, LexisNexis Rule of Law Foundation

In this article I’m going to talk about two concepts: the Rule of Law and populism. Then I want to look at the effect of one on the other. I should point out that these views all my personal views but I hope still valuable despite that.

I have described the elements of the Rule of Law elsewhere but to recap there are four elements that comprise the Rule of Law:

• Everyone is equal under the law. The law applies to everyone in the same way no matter who you are.
• The law should be properly published and accessible. Without knowing what the law is, you can’t enforce it. Without knowing what the law is, you can’t demand its protection.
• The law must be Administered by an impartial judiciary. That means judges who have no interest in which side wins as long as it is according to the evidence and the law.
• The Rule of Law must provide for reasonable access to reasonable remedy. That seems to me simple logic. Not having a remedy for your grievance means the law can simply be ignored.

I will explain why democracy isn’t in the definition. Bearing in mind that Sir Winston Churchill famously said, “Many forms of Government have been tried and will be tried … No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except for all those other forms that have been tried.”

It is not logically possible to have an element of a definition which actually harms the thing you are trying to define. Meaning, the instances where democracy has been extremely harmful to the Rule of Law. (I am not arguing that democracy is a bad thing. That would be a very different point. I’m just making a rather technical point of definition.)

As I have also written extensively elsewhere about the connection between the Rule of Law and economic prosperity is now beyond doubt. I point to the graphs on the LexisNexis Rule of Law website and the graphs on the World Justice Project websites showing the close correlation between the Rule of Law and a wide variety of socio-economic measures.

So, with that backing, let me emphasize again, the high level of correlation you can see between the Rule of Law and socio-economic measures that lead to a strong and prosperous society. This close relationship is way beyond statistically significant.

Now let me turn to the highly contentious subject of the moment, populism. As always, let’s try to define what we are talking about. This is because I believe it is through the definitions that we can determine what effect one has on the other. Populism is a term that is often intended as a derogatory term. It is used in reference to a diverse variety of movements and beliefs. Those who use it often use it to disparage or insult whatever the opponent is doing or trying to do.

Because of its intended derogatory inference, the term "populism" is often conflated with other derogatory concepts like demagoguery, extremism, and as something to be "feared." It also tends to be associated with views or movements that challenge traditional values, rules and institutions and orthodoxy. 

It seems to me that the world is intended to encompass the following set of beliefs or political approaches:

1. The reduction of complex problems into very simple solutions.
2. Those simple solutions usually involve identifying an “enemy of the people” that must be conquered with the result that all problems will be solved.
3. From that point on, anyone with whom the leadership disagrees is identified as supporting that “enemy” and are thus branded either an “enemy of the people,” a “traitor” or “enemy of the state.” Thus, the first liberty to disappear or be suppressed is usually the freedom to speak or criticize.
4. Detailed proposals are absolutely not required and are positively avoided. The more detail provided, the more scrutiny the idea comes under and the more quickly it can be attacked. Therefore, the response to scrutiny is the same as the response to criticism: It must be silenced.
5. Current orthodoxy is challenged because it is a cause of all current problems (as supported by the “enemy”).
6. If current orthodoxy has failed, only a powerful leader, who can burst through the orthodoxy and is not constrained (ultimately by anything) can deliver the promised success.

Populism must therefore oppose the safeguarding of minority rights or constraints on the leadership. Most populist leaders either start, or end, with the notion that pluralism (ie. opinions other than their own) or constitutional limits, should constrain them. Very often the first and most serious of the principles which are abandoned are the elements of the Rule of Law. As a result, the slippery slope towards, first, as John Stuart Mill described, the "tyranny of the majority" and then ultimately the tyranny of a ruler.

Because many populists present themselves as the true representatives of the people, they often interpret their electoral support as a mandate authorizing them to ignore or disrespect institutions enshrined in the rule of law or democratic constitutions.

So what conclusions can we draw from all of this? Firstly, that Populism as I have defined it is necessarily opposed to the Rule of Law. This is because the Rule of Law, when operating effectively, is above governments, rulers, demagogues, visionaries, national saviors, or anyone else. This ultimately contradicts the appeal of the populist with their simple solutions that override current norms and rules. In a situation where the populist — and their supporters — sees themselves as the sole savior of their society, being restricted by rules such as the principles of the Rule of Law cannot be permitted.

So what do we see repeated time and again?

Populism necessarily threatens the independence of the Judiciary because it ignores basic principles of equality. By necessity it must therefore deny access to remedy and ultimately, and inevitably, bring ruin to their nation and to their people. As night follows day. Why? Because of the unbreakable link between the Rule of Law and the huge range of socio-economic measures I referred to earlier.

I believe there is only one solution: Everyone who is able must constantly strive to explain what the Rule of Law is and, equally crucial, why it is important to every individual, even the excluded and forgotten in society. Our only remedy is through the Rule of Law and the Rule of Law is what will ultimately guarantee everyone’s prosperity.

Ian McDougall is the general counsel of LexisNexis Legal & Professional and President of the LexisNexis Rule of Law Foundation. To learn more about the Foundation, its partners and its projects, click here.