In less than a year, the world will celebrate the eight hundredth anniversary of what is commonly regarded as the foundation of the rule of law. On June 15, 1215, the senior nobility of England compelled King John to accept a charter affirming that the powers of the king were limited by law. Notwithstanding some antecedents, no such unqualified, audacious taming of royal autocracy had ever before been attempted. The most enduring provision of Magna Carta, subsequently numbered Article 39, affirmed that “No free man shall be taken or imprisoned or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send against him except by the lawful judgment of his peers or by the law of the land”.
By this article especially, the nobles affirmed what we now know as the rule of law. Even more fundamentally, they recognized that Englishmen were by nature free, their liberties guaranteed by law to which the king was to be bound equally with his subjects, the principle we know today that the law equally protects and restrains citizens regardless of inequalities of wealth, status, or political power and influence. Implicitly it enshrined the principle that no citizen could be deprived of life, liberty, or property except by a jury of his peers. These nobles would not have known or approved of what they did in the name of democracy. But by their action in holding the king accountable to themselves for upholding what we know as the rule of law, the nobility that day on the shores of the Thames River nonetheless inexorably sowed the seed of democracy.
They laid the foundation for a fundamental right which citizens everywhere would claim as theirs over the many centuries that followed.
This anniversary of the birth of the rule of law as the linchpin of democracy is an occasion for acknowledging the tortuous paths that has led from what those nobles did at Runnymede to reign in an errant king to the elevation of the rule of law as a universal standard of justice for all, and of just rule. The year also deserves an especially searching appraisal of the status of rule of law-based democracy around the world, and sober assessment of what it may take further to advance the rule of law in practice around the world, not least in Africa.
One significant point to note in tracing the emergence of the rule of law to its elevation to a global norm is that its birth preceded by a few centuries the emergence of the modern nation state as we know it. One could, therefore, make a case that its emergence was an essential foundation for the emergence of the modern state, even if, as the authoritative scholar Charles Tilly asserted, the emergence of the European state was a clear if unanticipated consequence of war making and preparation for war. That suggests that perhaps European monarchs were only able to pursue their wars on the foundation, at least in part, of some broader pre-existing consensus at least among the nobility on something approaching what we know today as the rule of law.
A second important point about the evolution of the rule of law is the obvious one that it didn’t come into being overnight, even in Europe. Tracing the growth trajectories of the rule of law as it is found at high levels in perhaps twenty percent of countries worldwide would be a salutary anniversary project. Suffice here to note the rocky, two steps forward-one step backward, sometimes revolutionary upheavals high performing countries experienced to get to where they are today on the rule of law.
Equally important, the procedures and institutions in place in these countries to establish the rule of law vary immensely, so that no one set of arrangements fits all circumstances. The foundation of the rule of law is an aspect of what some have called a constitutional culture to uphold both fair and impartial processes and strive for just outcomes, variations in institutions and procedures notwithstanding. Finally, detached observers, even in the high performing countries, would readily acknowledge not only residual imperfections but that the goal itself has been elusive, as realization grows of new requirements to meet that goal.
As the 800th anniversary of the seed that Magna Carta planted approaches, to what extent has the norm of observing the rule of law been recognized and honored around the world? There are many possible ways to seek answers to this question. As a brief and superficial start, one might consider the estimates that the respected Freedom House compiles each year. Observance of the rule of law is one of seven categories of criteria that Freedom House uses to come up with an index of one to one hundred for each country as score for its achievements in enabling citizens to live in freedom and with democracy.
For 2013, Freedom House scores for all countries averaged 52%. All countries worldwide, collectively, were only a little over half way to the promised land of full observance of the rule of law. Statistically speaking, 53% of all 195 countries were above average, only one of which, Cape Verde, was in Africa, Mauritius just missing this cut.
The Freedom House score for all sub-Saharan African countries was 37%, a significant drag on the worldwide averages of which African countries make up roughly one quarter. For sub-Saharan African countries as a group, nine countries were above average in addition to Cape Verde and Mauritius, in order: Ghana, Benin, Botswana, Sao Tome, Seychelles, Namibia, Lesotho, South Africa, and Senegal. Kenya’s score was identical to the sub-Saharan average.
Among the seven Freedom House criteria, scores were the lowest for observance of the rule of law both for all countries worldwide and for sub-Saharan Africa. Freedom of expression gained the highest overall marks, both worldwide and for sub-Saharan Africa.
For the future, the current Freedom House data suggest that both worldwide and in sub-Saharan Africa energetic commitment to building a rule of law culture is arguably the highest priority not only to advance democracy but also as a foundation for strengthening weak states as well. No one questions that without free and fair elections, a county has no democracy. However, there may well be another less well established but no less important companion axiom. Belief in the efficacy of democracy among all socioeconomic groups and cultural communities may hinge critically on their perceiving direct, working connections between their acceptance of, and participation in the introduction of quality electoral democracy and their experiencing greater confidence in the security of persons and property at the hands of government.
Freedom House has been the most outspoken about its finding of democratic retreats and loss of democratic momentum worldwide since about 2005. Its data suggest that worldwide pattern is accounted for by scores for sub-Saharan African countries as a group. Moreover, Afrobarometer has found sustained commitment to democracy but mixed assessments of democratic performance in its in depth surveys of citizen perceptions.
May the coming year be one of renewed, strengthened commitment to the rule of law. ^
— Prof Harbeson is a lecturer at the Johns Hopkins University School of Advanced International Studies and professor of political science emeritus at the City University of New York.