These are difficult times. Populist and authoritarian leaders are dismantling rule-of-law norms domestically, and they are working to do so internationally. Although political actors increasingly deploy rule-of-law discourse, they frequently abuse it to legitimate authoritarian rule, often in the name of law and order. How to measure these shifts is a challenge given the variety of institutional means to advance or undermine the rule of law, yet both qualitative and quantitative analyses indicate overall declines in rule-of-law protections transnationally, which are essential for individuals to lead lives not subject to domination.

We conceive of the rule of law as an ideal – or meta-principle – under which individuals are not to be subject to the arbitrary exercise of power. We examine the interaction of domestic and international factors in eroding the rule of law, including the rise of populist, authoritarian leaders in traditionally democratic countries, the intensification of repression in existing authoritarian regimes, and the relative decline of Europe and the United States in relation to an authoritarian China and other emerging powers. These shifts weaken the diffusion and settling of rule-of-law norms within states, which, in turn, affects normative development and institutional practice internationally. They also are generating robust responses that we evaluate.

Challenges to the rule of law raise a series of conceptual and empirical questions that are transnational in their scope and implications. This introductory chapter is in five parts. Part I explains our conceptualization of the rule of law, necessary for the orientation of empirical study and policy responses. Following Martin Krygier, we formulate a teleological conception of the rule of law in terms of goals and practices, which, in turn, calls for an assessment of institutional mechanisms to advance these goals given varying social conditions and contexts. Part II sets forth the ways in which international law and institutions are important for rule-of-law ends, as well as their pathologies, since power also is exercised beyond the state in an interconnected world. Part III examines empirical indicators of the decline of the rule of law at the national and international levels. It notes factors that explain such decline, and why such factors appear to be transnationally and recursively linked. Part IV discusses what might be done given these shifts in rule-of-law protections. It responds to the Biden administration’s rallying of a coalition of democracies to combat authoritarian trends at home and internationally, and it assesses tensions between political and economic liberalism. We then conclude in Part V, noting the implications of viewing the rule of law in transnational context for conceptual theory, empirical study, and policy response.

I Conceptualizing the Rule of Law: What’s the Point?

We develop concepts because they are useful for understanding the world and intervening within it. The starting point for developing the concept of the rule of law is to assess what is at stake for individuals and the communities of which they form part – that is, what is the problem that the rule of law aims to address. We start with Krygier’s conception of the rule of law in terms of social goals and practices, after which we turn to different normative and institutional means to advance these goals. It is both the ends and the means that can – and must – be assessed empirically to inform any effective response.

We posit that the rule of law is a normative ideal that should be viewed teleologically in terms of its ends. The goal of the rule of law is to oppose the arbitrary exercise of power by setting boundaries on, and channeling, power’s exercise through known legal rules and institutions that apply to all.Footnote ³ The rule of law aims to limit, through legal rules and institutionalized practices, the exercise of power by some persons over others. Arbitrary power can be terrorizing. People internalize its threat.Footnote ⁴ Through self-suppression and self-protective collaboration, individual freedom and civil society wither. The goal is thus to create restraints on government, as well as private power, together with channels for cooperative and coordinative activities,Footnote ⁵ which provide security and predictability so that people can plan and organize their pursuits and do so without fear. Power can be used for good or ill. For us, as for theorists ranging from Judith Shklar in the last century to Montesquieu earlier, “the fear of violence and the threat of arbitrary government provide an essential context in which the rule of law takes its meaning.”Footnote ⁶ As a goal, the rule of law is best viewed as a principle and not simply as a set of rules, because rules can be manipulated to subvert goals.Footnote ⁷ As an ideal, the rule of law will never be fully attained given human failings, but that does not make the principle any less important. In this chapter, we focus predominantly on public power, while noting that effective state power also is required to temper the arbitrary exercise of private power, particularly as states delegate and outsource traditional public tasks to private actors.Footnote ⁸

Ultimately, for the rule of law to become effective, it must be institutionalized as part of a culture of conduct. It must become a practice.Footnote ⁹ It is for this reason that we apply a broader conception of law that includes institutionalized practice.Footnote ¹⁰ From a socio-legal perspective, the rule of law provides restraints on arbitrary state and private behavior through norms that enable people to reasonably know what is required of them, what is prohibited, what they may do, and what can be done to them, combined with the institutionalization of these norms so that they “count as a source of restraint and a normative resource.”Footnote ¹¹ These restraints facilitate the advancement of multiple social goals.Footnote ¹² Where institutionalized, the rule of law becomes a habit or routine.Footnote ¹³

A teleological perspective reasons both forward in terms of an ideal, and backward in light of experience. It is the history of the arbitrary exercise of power, the real experience of abuse, that inspires conceptualization, empirical study, and social intervention. Our study of the rule of law is a legal-realist one, grounded in practice and experience and not in deductive reasoning.Footnote ¹⁴ Pragmatically, we know the value of the rule of law through historical and contemporary experiences of the arbitrary exercise of power. But our study is also based on a goal and purpose, or – to use the terminology of the pragmatist John Dewey – an “end in view.”Footnote ¹⁵

Before developing our argument regarding the rule of law from a transnational perspective, some caveats are in order. First, the rule of law is obviously not enough by itself and needs to be understood in relation to other social and institutional goals and practices. People and societies pursue multiple “goods,” including the satisfaction of basic human needs to enhance individual autonomy to make choices. As Michael Oakeshott writes, the rule of law “bakes no bread, it is unable to distribute loaves or fishes.”Footnote ¹⁶ Yet, the rule-of-law conception used in this chapter has powerful ties to theories of liberty based on furthering people’s real-life capacities. It contributes to a vision (in Amartya Sen’s terms) of “expanding the real freedoms that people enjoy,” thereby expanding their capacity to make choices in furtherance of what they value.Footnote ¹⁷ People are thus better situated to resist domination, from a republican perspective, and protect their autonomy from the arbitrary exercise of power.Footnote ¹⁸ The rule of law, in this sense, can be viewed as a complement to other (nonlegal) means of tempering power, and thus as supportive of this broader ideal.

Second, from a critical perspective, the pursuit of the rule of law is also linked to the substance of law. When only the powerful determine law’s substance, adherence to rules is less a matter of choice and more a reflection of power relations. Democratic participation in the determination of law’s substance is thus a necessary complement to rule-of-law ideals.Footnote ¹⁹ Contestation over the content of rules is a critical dimension of a robust, inclusive society protected by the rule of law.Footnote ²⁰ The relation of the rule of law to democracy is complex.Footnote ²¹ Rule-of-law norms can be, and have been, advanced outside of democratic governance to different degrees in certain areas,Footnote ²² and democratic governments can exercise arbitrary power and claim democratic legitimation to do so. Illiberal democracies have proliferated, as illiberal governments borrow from each other’s playbooks to exercise power arbitrarily.Footnote ²³ Their aim is to use rule-of-law language for their own illiberal ends.

The principles of democracy and the rule of law respond to different but interrelated questions and social problems. The issue of democratic governance poses the question of who exercises power. Rule-of-law concerns examine the question of how power is exercised.Footnote ²⁴ Democracy and the rule of law nonetheless are related – even though, at times, in tension – since the rule of law provides a check and counterbalance to the unbridled exercise of power through majority rule. To start, the rule of law is a necessary condition for democracy. It is needed to assure that officials impartially conduct elections and count votes. In addition, the rule of law protects individual autonomy from domination so that citizens may freely participate in public processes that, in turn, affect them. As Jürgen Habermas writes, “on the one hand, citizens can make adequate use of their public autonomy only if, on the basis of their equally protected private autonomy, they are sufficiently independent,” and “on the other hand, they can arrive at a consensual regulation of their private autonomy only if they make adequate use of the political autonomy as enfranchised citizens.”Footnote ²⁵ Both constitutional democracy and the rule of law provide institutional checks as moderating mechanisms that disincentivize the exercise of arbitrary power.Footnote ²⁶ Because they serve as complements, they often rise and decline in parallel, as Part III shows.

Third, there is a long tradition of socio-legal and critical scholarship assessing the role of capital, class, race, and other attributes where law helps to constitute unequal social relations. As Robert Gordon writes, “legal relations … don’t simply condition how the people relate to each other but to an important extent define the constitutive terms of the relationship, relations such as lord and peasant, master and slave, employer and employee.”Footnote ²⁷ For many scholars who criticize the liberal tradition, the rule of law is viewed more in terms of establishing “order” through the legitimating mechanism of law and legal institutions than “justice” in any substantive sense.Footnote ²⁸ They are rightly wary of how law can mask, normalize, legitimate, and maintain unjust social relations. Within democracies such as the United States, minorities have been systematically subject to greater rule-of-law violations, whether formally under slavery and Jim Crow laws in the eighteenth, nineteenth, and twentieth centuries, or in institutional practices today in criminal, immigration, public health, and other areas of law.Footnote ²⁹ Similarly, at the international level, critical scholars assess much of international law as a remnant of colonialism and imperialism.Footnote ³⁰ Historical studies depict how colonizers exercised power under law to establish order and legitimate rule,Footnote ³¹ although clearly in violation of this book’s conception of the rule of law.Footnote ³² Those in power in postcolonial states likewise can deploy colonial forms of state control in the name of the rule of law to dominate their populations.Footnote ³³

These critiques support conceptualizing the rule of law in terms of its goals – its point – and differentiating the ends from any particular formal and substantive means to attain it. It is thus important to distinguish the “rule of law” from “rule by law” and not collapse them into a single formal concept of “legality.” Governments around the world embrace rule-of-law rhetoric while instantiating a “rule of some groups over others by and through the law.”Footnote ³⁴ “Rule by law” implies that those holding the power to make and enforce legal norms do so to regulate and control the population, while those who govern are not themselves subject to the rules that they impose. The rule of law requires that both the governed and those who govern are subject to the same rules so that all are protected from the arbitrary exercise of power. It is distinguished from rule by law both in terms of purpose and consequence. Conceptualizing the rule of law in this way, and differentiating it from rule by law, clarifies how law – whether local, national, or international – can be used for good or ill, can curtail and temper, or support and legitimate, the arbitrary exercise of power.

The rule of law and rule by law are ideal-type constructs. In reality, “arbitrariness comes in degrees,” and practices vary along a continuum.Footnote ³⁵ State practices vary across issue areas and as regards different populations. Singapore operates as a “dual state,” Jothie Rajah writes, “in that it matches the ‘law’ of the liberal ‘West’ in the commercial arena while repressing civil and political individual rights.”Footnote ³⁶ In this regard, Singapore, given its economic success, can serve as a model for other authoritarian regimes that wish to attract domestic and transnational investment. Relatedly, Tamir Moustafa and others theorize how authoritarian regimes often provide for pockets of judicial independence for different functional reasons, including for controlling administrative agents.Footnote ³⁷ The rule of law also can be applied variably to different populations. Michael McCann and Filiz Kahraman document how the US legal system has long operated as a “dual state” for Blacks and other minorities,Footnote ³⁸ while Eric Foner describes the United States in the Jim Crow South as “a quasi-fascist polity … embedded within a purported democracy.”Footnote ³⁹ Ji Li similarly assesses variation in rule-of-law protections in China as a function of the issue and parties in a dispute.Footnote ⁴⁰

A central reason to define the rule of law in terms of goals and practices is the risk of creating formulaic checklists based on specified, formal characteristics. Authoritarians have become proficient in adopting formal institutions deemed important for the rule of law, but which – in practice – serve to subvert it, and replace it with the rule of a particular party, faction, or person that rules by law. Many scholars, moreover, tend to derive these checklists parochially from their own legal traditions – particularly European legal traditions – and not others. Countries can produce quite different sets of rules for regulating social life in furtherance of rule-of-law principles. As Laurence Rosen writes regarding Islamic conceptions of the rule of law: “One need not, therefore, be an unrepentant relativist or a claimant of universal values to nevertheless respect the organizing principles by which others place limits on power and treat one another with that degree of consideration to which they would expect any valid system of law to treat them as well.”Footnote ⁴¹ Similarly, Makau Mutua stresses that Western concepts should not be simply transplanted to Africa, but rather varying cultural traditions and contexts must be recognized.Footnote ⁴² There are, in other words, a variety of means to advance rule-of-law goals, adapted to local traditions and conditions.

In practice, one must advance beyond goals to address means. It is at this stage, we maintain, that the concept of the rule of law becomes more contested.Footnote ⁴³ One way to understand perennial debates over whether to adopt a “thin” or a “thick” concept of the rule of law is that scholars turn to different means for the protection of the goal of the rule of law. Proponents contend that these thin and thick conceptions provide particular “promise” for attaining rule-of-law ends.Footnote ⁴⁴ Specifying different means is necessary, but they must be empirically evaluated with the end always in view, and they must be adapted to fit different social conditions and contexts that will vary over time and place.

Many focus on, and argue for, a “thin” concept of the rule of law that views it only in procedural terms. Many legal theorists adopt formal conceptions, such as the law’s generality, equality of application, and certainty. Lon Fuller notably advanced eight elements that constitute conditions for the rule of law (or, in his terms, “excellence toward which a system of rules may strive”). Law should be “general, publicized, prospective, clear, non-contradictory, compliable, consistently applied, and reasonably stable.”Footnote ⁴⁵ Joseph Raz specified similar principles and divided them into two groups, the first focused on formal standards that provide certainty and predictability to guide action, and the second focused on legal machinery to make the first effective.Footnote ⁴⁶ These proponents highlight the coordinative and channeling functions of legal norms in providing a framework through which individuals and organizations might orient action, interact, and plan.Footnote ⁴⁷ They stress, in the words of Raz, that the rule of law’s value lies in “curtailing arbitrary power, and in securing a well ordered society, subject to accountable, principled government.”Footnote ⁴⁸ The checklists, however, should not define what the rule of law is. They rather incorporate important means to achieve rule-of-law goals because, as we argue below, they address key sources of arbitrariness.

It is when the conception of the rule of law includes substantive norms and goals, such as a democratic form of government, participation, deliberation, and individual rights, that it becomes more contested. Leading philosophers and social theorists advance thicker conceptions of the rule of law that vary in their inclusion of substantive issues, such as participatory rights and human rights.Footnote ⁴⁹ As Gianluigi Palombella puts it, the rule of law cannot “coincide with the mere existence of a legal order.”Footnote ⁵⁰ Theorists such as Ronald Dworkin, Jeremy Waldron, Jürgen Habermas, and Philip Selznick all incorporate a discursive quality of reason-giving and argumentative justification in their conception of the rule of law.Footnote ⁵¹ Proponents likewise advance these attributes as important checks on arbitrariness. Indeed, the lack of reason-giving constitutes an important source of arbitrariness, as we explain below.

Going further, Palombella insists that the rule of law requires democracy “paired with fundamental rights.”Footnote ⁵² Terry Nardin similarly argues that the rule of law should not be confused with the mere existence of laws: “The expression ‘rule of law’ does no intellectual work if any effective system of enacted rules must be counted as law, no matter what its moral qualities.”Footnote ⁵³ These moral qualities, he insists, must include rights: “The expression ‘rule of law’ … should be used only to designate a kind of legal order in which law both constrains decision-making and protects the moral rights of those who come within its jurisdiction.”Footnote ⁵⁴ United Nations reports on the rule of law similarly incorporate substantive conceptions, including consistency with “international human rights norms and standards.”Footnote ⁵⁵

More controversially, some World Bank reports have offered definitions of the rule of law that support market-oriented development policies grounded in property rights and contract enforcement.Footnote ⁵⁶ Secure property and contract rights can be important means to advance the rule of law in that they provide for certainty and predictability and thus protection from power’s arbitrary exercise. However, democratically governed societies will differ in how they define property and contract rights. It is important not to tether the concept of the rule of law to a particular form of political or economic ordering, such as a neoliberal model.Footnote ⁵⁷

Whether one takes a thinner or thicker view of the means to advance the rule of law, the common goal among these conceptions is to oppose arbitrariness. Although we do not incorporate human rights within the definition of the rule of law, there are clear overlaps – such as regards due process rights – and the two are intertwined and complementary in protecting individuals from power’s unbridled exercise.Footnote ⁵⁸ Critically, the rule of law is a necessary condition and prerequisite for the protection of human rights, just as it is for democracy. If one can persecute individuals with impunity to stay in power, then formal rights lack bite.

From a socio-legal perspective, the ultimate challenge is implementation in practice (the law-in-action), which will be mediated by social institutions and legal culture. Because law is frequently ambiguous, involving the interplay of standards, rules, and exceptions, the application of the rule of law will always be contested. No legal process is “discretion-free” because law’s meaning is mediated through the operation of institutions and interactions involving people.Footnote ⁵⁹ The rule of law thus should not be confused with the rule of courts or any other institutional means. It is an end that must be pursued through some form of institutionalization, of which courts can be an important exemplar. But any institutional means can be co-opted, abused, and subverted in practice. It is thus essential to keep the end always in view, and never confuse the existence of a particular institutional apparatus with the rule of law.

To develop appropriate means to protect rule-of-law goals, it is best to start with the source (or sources) of the problem – the different sources of arbitrariness.Footnote ⁶⁰ Theorists define arbitrary power in slightly different ways, but the term generally refers to power that is subject to no constraints and, in particular, is not made to take account of the interests of those subject to it.Footnote ⁶¹ In this vein, Philipp Pettit writes that an arbitrary act is one that “is chosen or not chosen at the agent’s pleasure. And in particular … it is chosen or rejected without reference to the interests, or the opinions, of those affected.”Footnote ⁶² For a dictionary-oriented, legal definition, the tribunal in the case of Siemens v. Argentina cites Black’s Law Dictionary and defines arbitrariness as follows: “In its ordinary meaning, ‘arbitrary’ means ‘derived from mere opinion,’ ‘capricious,’ ‘unrestrained,’ ‘despotic.’ Black’s Law Dictionary defines this term as ‘fixed or done capriciously or at pleasure; without adequate determining principle,’ ‘depending on the will alone,’ ‘without cause based upon the law.’”Footnote ⁶³

Building from Krygier, we note five sources of arbitrariness to which different rule-of-law prescriptions respond.Footnote ⁶⁴ A first, primordial concern is where the wielder of power is not subject, in practice, to the law, its controls and limits.Footnote ⁶⁵ Authoritarian governments, in particular, violate this first and most critical dimension. They may pack institutions with their friends, or institutional decision-makers will decide in their favor out of fear. Democratic governments can as well, as illustrated by the 2024 US Supreme Court decision in Trump v. United States, where the Court granted “absolute” and “presumptive immunity” to the President, respectively for “core constitutional powers” and “official acts.”Footnote ⁶⁶ When the law does not apply to those who rule, autocrats can attack opponents with impunity. When this dimension is lacking, the rule of law cannot guarantee fair elections and democratic government. The separation of powers and systems of institutional checks and balances are important means to hold rulers to account in support of rule-of-law goals and practices, but they too may be insufficient.Footnote ⁶⁷

A second source of arbitrariness is where individuals are unable to know and predict how power will be wielded over them. It is because of these risks that many theorists define the rule of law in terms of known, nondiscriminatory, relatively stable, prospective, consistently applied rules. These attributes are important for all areas of law, but they are particularly important for criminal law and the application of sanctions. Individuals then can plan their lives with reasonable certainty and predictability regarding the law, and thus be less subject to coercion. It is this source of arbitrariness that inspired theorists such as Hayek, Fuller, and Raz, as well as the broader Rechtsstaat tradition.Footnote ⁶⁸ These attributes contribute to greater social trust, facilitating cooperation.

A third source of arbitrariness is where individuals have no place to be heard, inform, question, or respond to how power is exercised over them. Due process assured by impartial institutions is critical for the protection of the rule of law. Raz highlights the importance of institutional machinery, and Waldron the need for contestation, to ensure the rule of law. If citizens have no place to contest decision-making and no institutional mechanism to access justice, the exercise of public power becomes less subject to controls, and decision-makers face fewer incentives to act in a nonarbitrary manner.Footnote ⁶⁹

A fourth source of arbitrariness, articulated by Habermas and Selznick among others, is where authorities do not engage in public reason-giving in issuing their decisions, which reasons then can be contested, including before judicial, political, and administrative processes. One may, and indeed will, often disagree with the reasons given, but the very practice of public reasoning can provide important constraints on power’s arbitrary exercise. Under the rule of law, in Justice Brandeis’s words, “deliberative forces prevail over the arbitrary.”Footnote ⁷⁰

A fifth source of arbitrariness is the proportionality of any measure in terms of the reasonable relationship of means and ends.Footnote ⁷¹ Decision-makers may create clear rules and provide access to courts but apply sanctions that are clearly disproportionate to the offense. Any restrictive measure should be grounded and justified as regards its proportionate relation to a public goal.

These five sources of arbitrariness all call for institutional checks. Different “thin” and “thick” conceptions of the rule of law respond to these concerns. These conceptions have given rise to numerous rule-of-law “checklists,”Footnote ⁷² which are important, but only provided that the focus remains on the goal and actual practices. In this chapter, we thus conceptualize legal and institutional attributes advanced by theorists as important means to respond to the above sources of arbitrariness, as opposed to the definition of the rule of law itself.

Because sources of arbitrariness differ, rule-of-law protections can decline or improve along different dimensions in different substantive areas, as documented in the literature on dual states. For example, many authoritarian regimes create rule-of-law protections in commercial and administrative law to attract investment and spur economic growth. In contrast, they do not subject themselves to the law when that would threaten their hold on power. A key test for the rule of law thus lies in the civic and political domains to constrain governments from engaging in repression to maintain power.

In the end, any meaningful understanding of the rule of law must be based on cultures of practice embedded in rule-governed institutions. To quote Nicholas Barber, “the rule of law amounts to a normative demand, a requirement that a certain set of mechanisms for the coercion and regulation of law is desirable.”Footnote ⁷³ Implementing this goal will give rise to variation, in reflection of different traditions, circumstances, and ideologies.Footnote ⁷⁴ In this vein, Fuller rightly maintained that pursuit of the rule of law is ultimately a “practical art” of developing institutions.Footnote ⁷⁵ We thus must turn from the question of goals to the question of means. We must address the question of how to – or, as Nicola Lacey writes, “how to develop legal arrangements capable of constraining abuses of power and of addressing such abuses.”Footnote ⁷⁶ The means entail different forms of checks on power’s uncontrolled exercise.

II The International Rule of Law from a Transnational Perspective

Many are skeptical about transporting the rule-of-law concept to international law. To start, many note the relatively “primitive” nature of international law in international relations, especially given the lack of institutions to enforce compliance.Footnote ⁷⁷ Simon Chesterman, for example, cites the early rule-of-law theorist Dicey, who suggests international law is “miscalled” law and rather involves “rules of public ethics.”Footnote ⁷⁸ International relations realists continue in this vein, arguing that international law is epiphenomenal and reflects the interests of powerful states. From this vantage, international law still can be useful for purposes of interstate coordination and cooperation, but powerful states will ignore it when it does not advance their interests.Footnote ⁷⁹

The political scientist Ian Hurd maintains that one can still conceptualize the international rule of law from an international relations perspective, but one must do so distinctly in terms of the role of “law talk.” For Hurd, international law involves a practice of argumentation in which actors use international law strategically to justify state behavior, which he calls “lawfare.”Footnote ⁸⁰ Powerful states “have the greatest influence over the design of international rules and the greatest capacity to both deploy and evade them.”Footnote ⁸¹ They seek to justify their conduct by offering self-serving interpretations of international law, and those interpretations shape “future readings of the law.”Footnote ⁸² For these reasons, third world approaches to international law (TWAIL) point to the biases in international law structures and practices that advantage powerful states and powerful constituencies within them.Footnote ⁸³ They nonetheless stress the need and potential for international law.Footnote ⁸⁴

We see no reason to create a distinct conception of the “international rule of law.” Rather, we maintain that the concept of the rule of law ultimately addresses the relation of authorities to individuals,Footnote ⁸⁵ but that international law’s horizontal dimension of governing interstate relations is critical directly and indirectly for protecting individuals from power’s arbitrary exercise. We thus retain our conception of the rule of law in terms of goals – to protect individuals from arbitrary power through legal rules and institutionalized practices, while providing channels for cooperative and coordinative activities. We nonetheless contend that international law is critical for advancing the rule of law in multiple direct and indirect ways that affect individuals and societies. At a minimum, the recognition of state boundaries and prohibition of the use of force except in self-defense helps ensure international peace and reduce the violence of war, thus protecting individuals and communities from power’s arbitrary exercise in war. Going further, states can be viewed as agents or trustees in advancing rule-of-law goals, and not simply as subjects and beneficiaries of international law. International law creates norms, institutions, and mechanisms that aim to protect individuals from arbitrary power, whether directly or indirectly. At the same time, international institutions, multinational companies, and foreign states can wield power arbitrarily in ways that affect individuals. International law is thus critical for tempering their unbridled exercise of power as well.

Our assessment of the role of international law and institutions in advancing rule-of-law goals and practices is a transnational one. It incorporates international law and institutions within dynamic processes that implicate rule-of-law concerns within and across states, affecting individuals and societies. From a transnational perspective, we contend that international norms and institutions are important for protecting individuals from the arbitrary exercise of power. However, they also can advance the rule of the powerful by and through law. They thus also must be subject to critical scrutiny and transnational checks.

We build a socio-legal theory of the relation of international law and institutions to the rule of law conceptually and apply it empirically. As we will see in Part III, in an interconnected world trends regarding rule-of-law protections are transnational in scope. They involve shifting norms, institutions, and practices at the local, national, and international levels. These developments are often enmeshed; they interact and recursively implicate international law and institutions, and, in turn, are implicated by them. Following World War II, and, more saliently, following the collapse of the Soviet Union and the end of the Cold War in the early 1990s, international law shifted from “classical Charter-based international law with its emphasis on state-oriented principles and underdeveloped human rights obligations towards a more value-based order which is actually capable of protecting and serving individuals,” including from the arbitrary exercise of power.Footnote ⁸⁶ Rule-of-law norms and institutions became more salient around the globe, both in discourse and in actual practices.Footnote ⁸⁷ The empirical question arises as to whether these trends are now in reverse, such that there are cycles in which rule-of-law norms advance and retreat at both the national and international levels.

To assess these trends, one should place international and national law and institutions within a single analytic frame in dynamic relationship with each other. Halliday and Shaffer conceptualize these processes in terms of “transnational legal ordering” that can give rise to the settlement and unsettlement of legal norms as part of “transnational legal orders” (TLOs) in different substantive domains.Footnote ⁸⁸ TLOs are normative orders that implicate law and legal practice across and within multiple national boundaries. They consist of working equilibria of relatively settled legal norms and practices that can vary in their substantive and geographic reach. Halliday and Shaffer define them as “a collection of formalized legal norms and associated organizations and actors that authoritatively order the understanding and practice of law across national jurisdictions.”

Transnational legal ordering arises out of the transnational framing and understanding of a social problem, which catalyzes actors to seek a resolution through law. Such problems affect all areas of social life and range from global warming to a lack of capital for economic development to the exercise of arbitrary state power. TLO theory thus concords with viewing the rule of law as a solution concept – as a response to a problem, the problem of the arbitrary exercise of power.

Transnational legal ordering entails dynamic processes that lead to the settlement and unsettlement of legal norms. Various facilitating circumstances and precipitating events catalyze lawmaking and changing practices at different levels of social organization, which, in turn, interact in a recursive manner over time. Different factors drive these processes at the transnational, national, and local levels. These factors include diagnostic struggles over the nature of the problem, actor mismatch between the codifiers and implementers of legal norms, indeterminacies in the law, and ideological tensions and contradictions within the norms.Footnote ⁸⁹ Where certain mechanisms are ineffective, actors may develop new tools. Where new tools are operationalized, actors may seek new ways to harness or thwart them. Through these processes, transnational legal orders can become more or less settled and institutionalized, varying in their geographic and substantive scope, including but not limited to regions. These legal orders also can vary in their alignment with an underlying problem, whether addressing it directly or only tangentially, or addressing all or only a part of it.Footnote ⁹⁰ For example, the legal order could address a broad definition of the problem (climate change) or narrower ones (such as the regulation of air transport, cargo ships, or energy infrastructure). Legal orders also may overlap and be in competition, as illustrated by advocates contesting the primacy of intellectual property and public health legal orders regarding access to medicines, or of anti-terrorism and national security law in light of due process requirements. Over time, transnational legal orders may rise, transform, and fall as legal norms settle and unsettle transnationally.

Our use of TLO theory in this book departs slightly from the way we have deployed it in the past. In the past, Halliday, Shaffer, and their collaborators viewed legal concepts in terms of how actors at different levels of social organization – ranging from the international to the national and local – framed problems and gave legal concepts meaning through recursive processes. In this way, they examined how legal norms develop, settle, unsettle, and change transnationally, such that their substantive meaning may alter, obscure, or become taken for granted. For example, Shaffer earlier conceptualized “transnational law” from a socio-legal perspective in terms of the “transnational construction and flow of legal norms,” “in which transnational actors, be they transnational institutions or transnational networks of public or private actors, play a role in constructing and diffusing legal norms, even if the legal norm is taken in large part from a national legal model.”Footnote ⁹¹

Had we taken this approach, we would study how the meaning of the “rule of law” changes over time transnationally, settling and unsettling in practice in ways that transcend national boundaries. Such an approach would have applied a “phenomenological” conception of the rule of law, as developed elsewhere by Jens MeierhenrichFootnote ⁹² and applied by Jothie Rajah, who examined different transnational rule-of-law scripts developed by the World Bank, United Nations, and World Justice Project.Footnote ⁹³ In this introductory chapter, in contrast, we define the rule of law as a principle and practice (constraints on the arbitrary exercise of power by setting boundaries on, and channeling, power’s exercise), and we then assess the extent to which the principle and practice are under serious challenge today. This principle (or meta-principle) implicates law’s practice across substantive domains. We still assess changes in legal practice transnationally, but here we do so in light of a principle that we define in terms of goals and practices in response to different sources of arbitrariness. Both approaches (phenomenological and normative) are important for empirical investigation, critique, and policy responsiveness to different social and political contexts.

In this Part II, we assess the direct and indirect relation of international law and institutions to rule-of law goals and practices as we have defined them. We contend that, in an interconnected world, the rule of law should be viewed as a normative social order that involves the horizontal, vertical, and transversal interaction of domestic and international law, which, in turn, reciprocally affect each other.Footnote ⁹⁴ Any equilibrium at the international, national, or local level will be subject to influence by norms that are conveyed, settle, and unsettle transnationally.

International law and institutions implicate rule-of-law protections for individuals in the following three ways. First, from a minimalist perspective, international law and institutions can help to secure international peace, which ultimately affects individuals and societies. Second, international law and institutions can indirectly affect domestic rule-of-law practices in relation to individuals. National law often incorporates international law; national courts and other bodies may reference it; and national actors may otherwise harness it, including to protect rule-of-law concerns. Third, international law and institutions can directly grant rights to individuals and impose duties on national governments, international institutions, and private actors.

In each case, we note how international law can either support rule-of-law practices or undermine them. As law generally, it can validate practices of freedom or of domination, which is why it is important to differentiate the concept of rule of law from that of rule by law. Because international law is part of larger, transnational, norm-making processes, one should assess interactions between international, national, and local norms, institutions, and practices that implicate the rule of law. Figure 1.1 captures these processes of interaction as regards anti-terrorism and due process norms at different levels of social organization, which we further address below.

Figure 1.1

The transnational web of rule-of-law interactions.

III Empirical Trends in Transnational Context

International and national law and practice interact to shape norms across substantive fields. These interactions are recursive in that developments in one site can have intended and unintended effects in others, which in turn can spur new normative development and institutional change. For example, national legal norms, especially those of powerful states, often shape international ones, but the norms may be revised and recalibrated in the process. In turn, international legal norms and institutions provide normative resources for actors at the national and local levels, new strategies of justification and argument, and new alternatives for social action. These processes also can catalyze national and local resistance that spurs new institutional strategies and normative change.

In this Part III, we first lay out our argument that the world risks a deepening negative cycle of overall decline in rule-of-law protections at the national and international levels (Section 1). After addressing the challenge of measuring rule-of-law practices (Section 2), we then examine existing evidence of national (Section 3) and international (Section 4) trends. We conclude by appraising possible explanatory factors for the parallel decline of multiple rule-of-law indicators (Section 5).

3 National Rule-of-Law trends

The past decade has witnessed a worrisome decline in the rule of law at the domestic level across a range of countries, on a variety of measures. In this section, we look at several of those indicators.Footnote ²¹⁷ Each of them relies on a different set of observable features of governments – features that plausibly capture key behavioral implications of our conception of the rule of law (legal rules that set limits on the arbitrary exercise of power by some persons over others) in light of different sources of arbitrariness.Footnote ²¹⁸ Each set shows overall declines in the rule of law within both democracies and authoritarian regimes. These declines generally do not reflect sudden transitions, such as following a military coup, but rather are gradual declines in the degree of rule-of-law protections within countries at different starting points.

According to World Justice Project (WJP) data (Figure 1.2),Footnote ²¹⁹ over the past eight years forty-three states show a significant decrease in the rule of law, whereas only three show a significant improvement.Footnote ²²⁰ Table 1.2 lists the states with the largest declines. Most of the states with a drop in the rule of law started from a relatively low point, though two (Poland and the Republic of Korea) began with scores above 0.70 (on a scale of 0–1).Footnote ²²¹ For those distrustful of quantitative indicators, the list of states – which includes Brazil, Egypt, Hungary, Poland, the Philippines, Turkey, and Venezuela – resonates, in our view, with common understandings. Overall, the WJP reports that in every year since 2015 the rule of law diminished in about 60 percent of countries, with a peak of 74 percent of countries showing a decline in 2020.Footnote ²²²

Figure 1.2

Changes in the rule of law, 2015–23, World Justice Project.

Table 1.2World Justice Project: largest declines in rule of law, 2015/16 to 2023

Country	WJP 2015/2016	WJP 2023	Change
Belarus	0.53	0.45	−0.08
Egypt	0.43	0.35	−0.08
Poland	0.72	0.64	−0.08
Hungary	0.58	0.51	−0.07
Mexico	0.48	0.42	−0.07
Nicaragua	0.42	0.35	−0.07
Brazil	0.55	0.49	−0.06
El Salvador	0.51	0.45	−0.06
Georgia	0.66	0.60	−0.06
Grenada	0.66	0.60	−0.06
Myanmar	0.41	0.35	−0.06
Philippines	0.52	0.46	−0.06
Bosnia and Herzegovina	0.56	0.51	−0.05
Ghana	0.60	0.55	−0.05
Iran	0.44	0.39	−0.05
Republic of Korea	0.79	0.74	−0.05
Trinidad and Tobago	0.57	0.52	−0.05
Turkey	0.46	0.41	−0.05
Venezuela	0.31	0.26	−0.05

Note: World Justice Project, WJP Rule of Law Index (2023). World Justice Project scores range from 0 to 1. The table shows the nineteen largest declines. An additional eleven countries had a decline of 0.04. For most countries, the first year included in the data is 2015; for two countries in the table (Grenada, Trinidad and Tobago) it is 2016.

When we disaggregate the WJP data in terms of those indicators most directly tied to the five sources of arbitrariness that we identified in Part I, we find similar declines, as captured in Table 1.3. Using WJP data, we constructed indicators for three of the five sources of arbitrariness.Footnote ²²³ We then compared countries’ performance on these measures in 2015 and 2023. Strikingly, for all three sources of arbitrariness, far more countries underwent an increase in arbitrariness than experienced a decline, as shown in Table 1.3. It is also telling that 58 countries showed greater arbitrariness on all three counts in 2023. Out of 113 countries for which we have data, 88 showed an increase in two or more of the sources of arbitrariness.

Table 1.3Changes in the sources of arbitrariness, 2015–2023

Sources	Number of countries
	Less arbitrariness	More arbitrariness
1. Wielder of power is not subject to controls, limits, or accountability mechanisms.	35	78
2. Individuals unable to know how power may be wielded over them.	24	89
3. Individuals have no place to question or respond to how power is exercised over them.	33	80

N = 113 countries. Eleven countries lacked data for 2015; for those countries we used 2016 data.

Figure 1.3 charts the number of countries showing an increase and the number undergoing a decline in the Freedom House rule-of-law indicator. Strikingly, in no year since 2005 has the number of countries showing an increase in the rule of law exceeded the number suffering a decline. Since 2017, the number of countries expanding the rule of law has dropped dramatically, while the number with a declining rule of law has remained high. Rule of law scores from the Varieties of Democracy project depict a similar trend. Rule of law scores began a steady rise after the 1990 collapse of the Soviet Union. From 1990 until 2012, states showing increases outnumbered states undergoing declines in all but two years. By contrast, from 2013 through 2021, declines were more numerous than increases in all but two years.Footnote ²²⁴

Figure 1.3

Freedom House rule of law index.

In some instances, autocratic governments expanded their powers (as in Niger and Belarus). In others, elected governments eroded the rule of law by bringing formerly independent regulatory bodies under executive control and replacing judges on supreme courts (as in Hungary and Poland). Table 1.4 lists the twenty countries with the largest declines in the rule of law under two measures (V-Dem and Freedom House). Turkey has undergone an especially striking retreat. Notably, Freedom House lists the same democracies that display declines in the V-Dem rule-of-law indicator, but it also includes the United States.

Table 1.4Decline in the rule of law, 2011–2020

V-Dem		Freedom House
Country	Decrease (on a scale of 0–1)	Country	Decrease (on a scale of 0–16)
Turkey	−0.43	Turkey	−5
Zambia	−0.30	Nicaragua	−4
Thailand	−0.20	Rwanda	−4
Comoros	−0.14	Tanzania	−4
El Salvador	−0.14	Ukraine	−4
Ivory Coast	−0.14	Venezuela	−4
Poland	−0.14	Azerbaijan	−3
Brazil	−0.13	Bosnia and Herzegovina	−3
Philippines	−0.13	Burundi	−3
Belarus	−0.11	Central African Republic	−3
Bosnia and Herzegovina	−0.11	Gabon	−3
Hungary	−0.11	Hungary	−3
Mauritius	−0.11	Lesotho	−3
Niger	−0.11	Philippines	−3
Mauritania	−0.10	Tajikistan	−3
Nicaragua	−0.10	United States of America	−3
Serbia	−0.10	Indonesia	−2
Moldova	−0.09	Moldova	−2
Slovenia	−0.08	Poland	−2
Togo	−0.08	Yemen	−2

Note: The V-Dem rule-of-law variable (v2x_rule) has a range of 0 to 1. The Freedom House rule-of-law indicator ranges from 0 to 16.

Democracy and the rule of law are tightly interlinked. On the one hand, the rule of law is an essential prerequisite of democracy, since people cannot freely participate if they fear being subject to the arbitrary exercise of power, and election results can be manipulated without a trustworthy, independent, and institutionalized election system. On the other hand, strong democratic institutions can serve as an important bulwark of the rule of law, tempering the exercise of power (although not necessarily, as Hungary and Poland demonstrate). Measures of democracy show striking declines over the past decade. Figure 1.4 shows the net change in the level of democracy in the world according to two V-Dem indicators. The first measures the extent to which countries meet the criteria of polyarchy. It captures the “electoral principle of democracy,” which, through free and fair electoral competition, makes “rulers responsive to citizens.”Footnote ²²⁵ The second, liberal democracy, “emphasizes the importance of protecting individual and minority rights against the tyranny of the state and the tyranny of the majority,” in addition to free elections.Footnote ²²⁶ The graphs indicate the balance between the number of states showing an increase in a given indicator (greater democracy) and the number of states exhibiting a decrease (diminished democracy). For each of the last ten years, declines have been more numerous, sometimes dramatically so.

Figure 1.4

Decline in democracy indicators.

Table 1.5 lists the countries showing the greatest declines in both measures. Many of the same democracies that suffered drops in measures of the rule of law (Brazil, Hungary, Philippines, Poland, Turkey, United States) also show declines in measures of democracy. India appears in both lists as well. In parallel, the Economist Intelligence Unit downgraded Japan, South Korea, and the United States from “Full Democracies” to “Flawed Democracies” between 2014 and 2019. For the first time in three decades, it found that over half of the world’s countries, governing over half of world population, are neither “Full” nor “Flawed Democracies.”Footnote ²²⁷ Similarly, in its Freedom in the World 2021 report, Freedom House warned that 2020 “marked the 15th consecutive year of decline in global freedom. The countries experiencing deterioration outnumbered those with improvements by the largest margin recorded since the negative trend began in 2006.”Footnote ²²⁸ In other words, three complementary mechanisms for tempering the arbitrary exercise of power (rule of law, democracy, and civil and political rights) declined in parallel.

Table 1.5Decline in democracy, 2011–2020

V-Dem polyarchy		V-Dem liberal democracy
Country	Decrease	Country	Decrease
Bolivia	−0.36	Poland	−0.34
Hungary	−0.32	Hungary	−0.29
Serbia	−0.27	Brazil	−0.28
Poland	−0.26	Turkey	−0.28
Thailand	−0.26	Serbia	−0.25
Turkey	−0.26	India	−0.23
India	−0.25	Mauritius	−0.23
Yemen	−0.22	Benin	−0.22
Nicaragua	−0.21	Thailand	−0.21
Venezuela	−0.21	Bolivia	−0.18
Brazil	−0.20	Comoros	−0.17
Comoros	−0.20	Philippines	−0.16
Mauritius	−0.20	Zambia	−0.16
Benin	−0.19	Botswana	−0.15
Zambia	−0.19	Nicaragua	−0.15
Bangladesh	−0.17	Moldova	−0.14
Mali	−0.14	Slovenia	−0.14
Botswana	−0.13	United States of America	−0.12
Burundi	−0.13	Czech Republic	−0.11
Philippines	−0.12	Mali	−0.11

Note: The V-Dem polyarchy variable captures the extent to which “the ideal of electoral democracy” is “in its fullest sense achieved.” The V-Dem liberal democracy variable captures the extent to which the “liberal principle of democracy” – including protection of individual and minority rights – is achieved. Both variables range from 0 to 1 (V-Dem Codebook 2021, 43–44).

Sandholtz examines three key indicators of decline that implicate the rule of law: judicial independence, independent media, and civil society.Footnote ²²⁹ Civil society organizations are key compliance constituencies needed to keep governments and other powerful actors accountable, and independent media and independent courts provide important support for their efforts. These institutional actors help protect the rule of law by casting light on and countering power’s arbitrary exercise, and all three are under attack. Judicial independence has declined globally through the purging and intimidation of judges and the packing of courts with government loyalists, as illustrated by authoritarian strategies in Hungary and Poland.Footnote ²³⁰ The Hungarian government even passed legislation voiding the entire jurisprudence of the country’s constitutional court in order to thwart institutional checks on its power.Footnote ²³¹ Freedom House documents, in parallel, continuous attacks on and deterioration of media independence around the world over a decade, “with new forms of repression taking hold in open societies and authoritarian states alike.”Footnote ²³² Governments in traditional democracies have increasingly cracked down on independent media, with many launching tax and other civil and criminal investigations in retaliation for adverse coverage. Reporters Without Borders dropped Japan to 71st in “world press freedom rankings,” while India, under President Modi, fell to 150th.Footnote ²³³ UNESCO’s 2022 report finds that “[o]ver the past five years, approximately eighty-five percent of the world’s population experienced a decline in press freedom in their country.”Footnote ²³⁴ Governments, in addition, increasingly repress civil society organizations, including by cutting off financial support from foreign sources.Footnote ²³⁵ Following the lead of China and Russia, dozens of countries have adopted new restrictions on foreign funding of nongovernmental organizations, and many have prohibited such funding.Footnote ²³⁶ UN High Commissioner for Human Rights Michelle Bachelet rebuked Israel, for example, when it not only cracked down on civil society groups but, in December 2021, designated without substantiation as “terrorist organizations” six Palestinian civil society groups that had long defended human rights and delivered humanitarian aid.Footnote ²³⁷ These trends bode ill for the rule of law.

IV What Might Be Done?

At the national level, institutions can have resilience. Although we assessed challenges to the rule of law in Part III, these challenges are occurring within the context of transnational rule-of-law institutional developments over the last three decades that provide normative resources to those resisting authoritarian trends. Pou Giménez, for example, notes the importance of constitutional developments in Mexico and elsewhere in Latin America over the last three decades that gave rise to new institutions providing fora for professional and activist networks to resist executive encroachments on rule-of-law protections.Footnote ³⁰⁵ In the United States, there was considerable resistance to the Trump administration’s decrees, including from civil servants within the executive branch.Footnote ³⁰⁶ The American Civil Liberties Union alone filed over four hundred lawsuits against the administration, ranging from its ban on Muslims entering the United States to its separation of migrant children from their parents and placing them in cages.Footnote ³⁰⁷ International institutions also have resilience, and many of them support rule-of law norms and practices.Footnote ³⁰⁸ For example, the most active regional human rights courts – the ECtHR and the IACtHR – so far have withstood efforts by states to curtail their formal authority. Moreover, when international institutions have become complicit in rule-of-law violations, they have spurred regional, state, and civil society responses, as reflected in the Kadi line of cases and efforts to reform Security Council procedures.Footnote ³⁰⁹ Nonetheless, the erosion of rule-of-law and democratic norms within states, combined with the economic and political rise of powerful authoritarian states, pose considerable challenges. What might be done to return to a virtuous transnational cycle that advances rule-of-law goals?

First, because national and international norms regarding the rule of law recursively interact, responses to the current negative cycle must occur at multiple levels, including domestically, regionally, and globally. Developments elsewhere matter for rule-of-law developments at home, as illustrated by the vicious and virtuous cycles of rule-of-law developments that this introductory chapter and the volume as a whole document. As Kwame Anthony Appiah writes, “[while] populist demagogues around the world exploit the churn of economic discontent, the danger is that the politics of engagement could give way to the politics of withdrawal.” Forgetting that “we are all citizens of the world – a small, warming, intensely vulnerable world – would be a reckless relaxation of vigilance.”Footnote ³¹⁰ “Elsewhere,” Appiah stresses, “has never been more important.”Footnote ³¹¹

The Biden administration actively reengaged the United States at the international level. It rejoined the UN Human Rights Council, UNESCO, the Paris Agreement on climate change, and the Migration Compact, among other organizations and treaties. In 2021, it hosted a “Summit for Democracy” to address the authoritarian challenge.Footnote ³¹² In parallel, it launched a new Joint Transatlantic Agenda with the European Union that aimed to reinvigorate transatlantic cooperation and to counter China and Russia.Footnote ³¹³ Russia’s invasion of the Ukraine spurred transatlantic cooperation to levels not seen since the end of the Cold War. This new transatlantic agenda linked with the administration’s efforts to develop a new transpacific governance framework with allies in Asia through an “Indo-Pacific Economic Framework.”Footnote ³¹⁴ Both involve predominantly soft law, in contrast to the Obama administration’s earlier proposals for a Transatlantic Trade and Investment Partnership and a Trans-Pacific Partnership, which were to create a broad array of new binding rules backed by third-party dispute settlement. These initiatives are admirable in rallying governments to defend and promote democratic, rule-of-law values through bolstering old alliances and developing and engaging new ones.

Nonetheless, the administration’s rhetoric and strategic initiatives pose risks. They could deepen nationalist reactions domestically in China and elsewhere and, in the process, empower authoritarian leaders who, viewing such alliances as threats, expand their powers in defense of “national security.” They also risk dividing the world into opposing blocs, catalyzing new authoritarian alliances, such as between Russia and China. They thus could threaten the underlying Hobbesian task of securing order, trust, and peace through providing the conditions for cooperation.Footnote ³¹⁵

Balancing the creation and invigoration of organized clubs of like-minded, democratic states as part of broader security alliances, on the one hand, with commitments to multilateral institutions and bilateral mechanisms to defuse conflicts and respond to global challenges, on the other hand, will be a key challenge for the future.Footnote ³¹⁶ The United States needs to engage with China in and through international institutions and bilateral processes to address global and transnational risks, reduce conflict, and resolve disputes peacefully. Shaffer elsewhere proposed a framework for governing US–China relations in this vein across the three dimensions of economic relations, national security, and concerns over human rights, which will be necessary to manage and defuse conflict and create conditions for cooperation, especially when crises arise.Footnote ³¹⁷ It provides a contrasting template to that pursued by the Trump and Biden administrations vis-à-vis China, although the Biden administration recognized the need to manage the US economic relationship with China in more tailored ways.Footnote ³¹⁸

Second, much analysis of international law and institutions has focused on their relation to state practices because states are most frequently the direct subjects of international law. However, given the ability of transnational capital to exercise arbitrary power, and given that state and private power interact (including through the regulation, or lack of regulation, of private power), it is mistaken to assess international law and international rule-of-law concerns as only regarding states. Globalization processes arguably need to be reined in to equalize the bargaining power of transnational capital and labor, which raises the issue of arbitrary power exercised by corporations over workers. Before the industrial revolution, in the age of Adam Smith and his advocacy of free trade to enhance the wealth of nations, political theorists had better grounds to view market capitalism and trade liberalization as means to dismantle hierarchies and advance egalitarian prospects.Footnote ³¹⁹ In contrast, the contemporary age of mega-oligopolists, billionaire capitalists, and precarious working conditions for mass labor call for new forms of regulation.Footnote ³²⁰ Otherwise, there will be fertile ground for populist, exclusionary forces that challenge fundamental rule-of-law norms. The Biden administration’s proclamation of a “worker-centered trade policy,” its reframing of trade relations in terms of “resilience, sustainability, and inclusion,” and its aim to coordinate tax policies to preserve the ability of states to tax high-wealth individuals and corporations and thus fund domestic policies to redress gaping inequalities need to be worked out.Footnote ³²¹ Yet, they reflect real concerns about the impact of market processes on society.

Democracies need to address tensions within liberalism, both at home and in international agreements, and, in particular, between political and economic liberalism.Footnote ³²² In earlier theorizing, Hayek and others promoted international norms of economic liberalization to constrain national democratic choices regarding economic regulation.Footnote ³²³ In contrast, more recently, following Karl Polanyi’s classic account,Footnote ³²⁴ the economist Dani Rodrik has stressed the trade-offs among economic globalization, national sovereignty, and democracy in terms of a “trilemma” – one could have any two of them but not all three, he contended.Footnote ³²⁵ Rodrik stressed that “we need to place the requirements of liberal democracy ahead of those of international trade and investment,” as trade and investment policy can undermine domestic social bargains and increase inequality.Footnote ³²⁶ We agree with Rodrik in this regard. There is evidence that increased economic integration under a neoliberal economic model helped spur the rising inequality and job precarity that sparked populist and nationalist reactions.Footnote ³²⁷ Studies show a correlation of higher inequality with acceptance of authoritarianism, as struggles over economic distribution become more salient.Footnote ³²⁸

To respond to these challenges within liberalism, global governance institutions and norms should be recalibrated to facilitate greater protection for domestic economic policy space. The application of international economic law norms should be revisited to provide greater room for countries to ensure social inclusion, and thus preserve economic liberalism from the risks of overreach. Domestic social welfare policies can be combined with policies that combat harmful tax avoidance and deter social dumping through trade.Footnote ³²⁹ In this way, governments would enhance their ability to fund domestic initiatives, and capital would have greater incentives to work with domestic labor representatives and not move or threaten to move offshore to jurisdictions without protections. Such a shift does not signify a return to sovereignty-based norms, as advocated by economic nationalists, populists, and authoritarians. Transnational processes will remain critical for the advancement of economic and social rights, the coordination of policies to combat tax evasion and avoidance, and the bolstering of economic resilience and sustainability. These policies should be viewed as part of a broader complementary package in support of rule-of-law goals.

Finally, the rising challenges to democracy and the rule of law are more than economic. They also reflect cultural backlash against the relative success of liberal, pluralist norms from those who feel a loss of status or a sense that their ways of life are under threat.Footnote ³³⁰ Immigration becomes an easy target, reflecting rising social cleavages in the United States and Europe.Footnote ³³¹ Norms of social community, solidarity, and cooperation decline.Footnote ³³² Minorities and foreigners become scapegoats, creating social conditions ripe for authoritarianism. Hannah Arendt’s analysis of the rise of totalitarianism in the twentieth century is chillingly foreboding:

Today, populist, nativist politicians and partisan media capitalize on and stoke anxieties through a politics of fear, anger, and resentment,Footnote ³³⁴ giving rise to Schmittian friend–enemy politics of social identity.Footnote ³³⁵ Climate change, political repression, war, and other crises will spur further migration, potentially heightening social conflict.Footnote ³³⁶ The policy implications are challenging. Economists generally maintain that societies economically benefit from increased migration, but the domestic politics continue to raise barriers, indeed physical walls.Footnote ³³⁷ To start, policies addressing rising economic inequality and social precarity could help stem such cultural backlash. Yet, those policy changes also face political blockages.

It is not for this chapter to provide definitive responses to the rise of populism and the decline of the rule of law around the world. Our central aim is to show how international norms and institutions interact with domestic ones, and how they can do so in positive as well as in unintended and negative ways, including by exacerbating inequality, empowering populists, and thereby undermining rule-of-law goals. Policies to counter existing trends need to be adopted at both the domestic and international levels to advance rule-of-law objectives. At the national level, they need to be responsive to and calibrated for local contexts to ensure social and economic inclusion, local engagement, and thus legitimacy.

V Conclusion

History is not linear. It involves cycles of advances and retrenchments in light of ongoing struggles. Rule-of-law protections that temper the arbitrary exercise of power are under challenge globally. In contrast, rule by law – the deploying of legal rules to serve the interests of autocratic power-holders – is on the rise. One of the critical challenges is how to stabilize and then revitalize rule-of-law principles and institutions within countries where they are under assault. An interlinked challenge is to reinforce and recalibrate regional and international legal norms and institutions, which are also under stress, in order to support the rule of law domestically.

To address these challenges, we must conceptualize and empirically study the rule of law in transnational context. Most rule-of-law scholarship does not engage transnational processes. The analytic framework of transnational legal ordering and transnational legal orders, in contrast, foregrounds them. The rule of law affects all substantive areas implicated by these processes, shaping legal practice and its consequences.

Although the concept of the rule of law applies ultimately to the protection of individuals from the arbitrary exercise of power, and thus is not focused on interstate relations per se, international law and international institutions are critical in an interconnected world. They directly and indirectly implicate rule-of-law practices in light of the normative and material resources that they provide. Challenges to the rule of law are part of broader domestic and international contests over governing norms and institutions, which have transnational implications. This book makes the case that trends at the national and international levels enmesh, and they can reinforce a turn toward or away from rule-of-law goals and practices. By expanding our understanding of these transnational dynamics, we hope to contribute to the assessment and recalibration of means to advance rule-of-law goals.

I Introduction

A decade ago, Jeremy Waldron published an influential article arguing that sovereign states are not entitled to the benefits of the rule of law. Pared to the core, his argument is: (1) “the point of the ROL [rule of law] is to protect individual values like liberty, dignity, etc.”;Footnote ¹ (2) “the ‘true’ subjects of IL [international law] are really human individuals (billions of them)”;Footnote ² (3) in domestic legal systems, government officials and agencies are not entitled to rule-of-law protections like private individuals;Footnote ³ (4) sovereign states should be seen as “officials” or “agents” of the international law system rather than as subjects;Footnote ⁴ and (5) “then maybe it is inappropriate to think that sovereign states are entitled to the same ROL protections at the international level as individuals are entitled to at the municipal level.”Footnote ⁵ This narrow construction, I argue in this chapter, is an unwarranted and undesirable theoretical limitation of the benefits of national and international rule of law.

A few words about the current Russian invasion of Ukraine will help set up this argument. Russian president Vladimir Putin justified the invasion as necessary to protect Russian-speaking residents of the Donbas region (who he claims want to be part of Russia) from genocide by Ukraine; he claimed that Ukraine is not a genuine state but a historic part of greater Russia, and that NATO’s expansion into Eastern Europe is a threat to Russia’s security.Footnote ⁶ The UN General Assembly voted overwhelmingly to condemn Russia’s invasion as a violation of Article 2(4) of the UN Charter prohibiting the use of force against the territorial integrity and political independence of another state.Footnote ⁷ The first line of the resolution states: “Reaffirming the paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations.”Footnote ⁸ Ukraine filed a complaint against Russia at the International Court of Justice (ICJ), arguing that Russia falsely claimed Ukraine was committing genocide as a pretext for its invasion. By a vote of 13 to 2 (the dissenting judges were from Russia and China), the ICJ ordered that “[t]he Russian Federation shall immediately suspend the military operations.”Footnote ⁹ Russia has ignored this order. After holding a “referendum” in areas under its occupation, Putin signed a law annexing nearly 20 percent of Ukrainian territory, proclaiming it part of Russia.Footnote ¹⁰ The UN General Assembly rejected this purported annexation as illegal under international law by a vote of 143 to 4 (with 35 abstentions).Footnote ¹¹

Waldron is likely aghast at the murderous and horrifically destructive Russian invasion of Ukraine. Still, those who argue that sovereign states are not subjects entitled to the benefits of the international rule of law should be given pause by this latest reminder of the danger that states pose to one another and their populaces. They should consider why states view actions like this as a violation of the rule of law, and consider whether granting states the benefits of the rule of law has important positive consequences.

On descriptive, theoretical, and normative grounds, I argue that sovereign states, along with all persons and entities, should be regarded as subjects fully entitled to all benefits of international rule of law. Part II elaborates the fundamental international law principle of sovereign autonomy, comprising a nested arrangement that protects both states and individuals. Depicting the rule of law as the ideal of a legally ordered community, Part III shows that the rule of law advances several vertical and horizontal functions – not only individual liberty. Part IV reveals that Waldron overlooked the horizontal rule of law treatment of government within domestic legal systems. Articulating the international rule of law as the ideal of the legal ordering of the international community, Part V argues that sovereign states already are, and should be, entitled to the benefits of the international rule of law. Part VI closes the chapter with brief comments about how this understanding is well suited to addressing the emerging transnational legal order. In the course of this critical engagement with Waldron’s position, I lay out a broad understanding of the rule of law that applies within states and the international community.

II International Law’s Nested Dualism of States and Individuals

“The real purpose of IL and, in my view, of the ROL in the international realm is not the protection of sovereign states but the protection of the populations committed to their charge,”Footnote ¹² Waldron asserts. This stance, however, tends to erase the pivotal role international law accords to states, protecting state autonomy as well as individuals in a nested arrangement.Footnote ¹³ Respect for state sovereignty, noninterference, and sovereign equality are fundamental principles of international law that enable states to serve their responsibilities to their populations. Primary responsibility for the protection of individuals in this arrangement is accorded to the nation-state, while direct protection for individuals under international law is largely limited to human rights.

This nested arrangement has long been a staple of international law. Samuel Pufendorf articulated a view variously expressed by many theorists in the past four centuries during the consolidation of the state system: “[T]he over-riding purpose of states is that, by mutual cooperation and assistance, men may be safe from the losses and injuries which they may and often do inflict on each other.”Footnote ¹⁴ Emer de Vattel, an influential early international law writer, similarly held that nations are “societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength.”Footnote ¹⁵ The duty of the state is to ensure the safety and welfare of the populace.Footnote ¹⁶ “States are now widely understood to be instruments at the service of their peoples, and not vice versa,” observed UN secretary-general Kofi Annan.Footnote ¹⁷

Sovereign states discharge this duty through the right and power to act on behalf of their populace both internally and externally. “It is an evident consequence of the liberty and independence of nations, that all have a right to be governed as they think proper, and that no state has the smallest right to interfere with the government of another,” Vattel observed.Footnote ¹⁸ “The sovereign is he to whom the nation has entrusted the empire and the care of the government,” he continued. “It does not then belong to any foreign power to take cognizance of the administration of that sovereign, to set himself up for a judge of his conduct, and to oblige him to alter it.”Footnote ¹⁹ Immanuel Kant’s fifth article for peace among nations declares: “No state shall violently interfere with the constitution and administration of another.”Footnote ²⁰ Article 2(4) of the UN Charter codifies this position: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Consistent with this position, the ICJ asserted: “Every State possesses a fundamental right to choose and implement its own political, economic and social systems.”Footnote ²¹

The right of sovereign states to noninterference is upheld, not out of a naive faith in states or misplaced dedication to sovereignty as an abstract notion, but because it serves several crucial purposes. A major impetus in the development of international law was to diminish incessant wars in Europe and the carnage they wrought on civilian populations. Wars of aggression occur when a state (or coalition of states) seeks to expand its territory or access to resources by conquering or absorbing or controlling another state or its territory; and also when a governing regime feels its internal hold on power is threatened by rising internal discontent or by aggression from another state, which it attacks to rally the populace and to reduce the perceived external threat. Respect for sovereignty and noninterference protects individuals by dampening wars.

Nonetheless, many international law scholars (particularly from Western societies) disfavor sovereigntyFootnote ²² – a shield behind which states all too often abuse their own citizens – and insist that the primary objective of international law is to protect individuals. Carmen Pavel argues that state autonomy has no intrinsic value of its own: “State autonomy is valuable to the extent it protects individual autonomy.”Footnote ²³ This position links state sovereignty to a deeper ultimate purpose that provides a critical standard and justification for outsiders coercively penetrating state autonomy when necessary to protect citizens from bad actions by their own governing regime.

Owing to conflicting interests, mutual distrust, nationalist sentiments, global pluralism of values, and the prioritization of peace, however, it is not acceptable to penetrate state sovereignty for other than the most blatant violations of human rights. States are not in a position to determine in an unbiased way – one not colored by their own interests and values – whether or when other states are in fact serving or harming their citizens. The leaders of every state are skeptical and critical of the actions of other states (including allies), while at the same time they reject criticisms from others of their own conduct. Officials in the United States, Germany, and Japan, no less than officials in Russia and China, and every other country, insist that they, and they alone, are in the best position to recognize and advance the interests of their populace. All states legislate morality, set up economic and political systems, specify the status of religion, impose criminal law and taxation, create and utilize coercive policing, restrict political opposition within certain parameters, and limit protests by citizens, in certain states suppressing the press (through criminal or civil sanctions) or using brutal crackdowns in the name of maintaining public security and order. In these and other matters states make choices and take actions that other states do differently. Self-determination and political and moral pluralism – which give rise to contrasting views of substantive justice and the common good within societies – are moral considerations that underlie sovereign autonomy.Footnote ²⁴ Finally, coercively penetrating sovereignty may provoke a violent backlash by the governing regime, leading to further abuses and possibly outright war.

State sovereignty and noninterference have become entrenched in the primary international law principle of sovereign equality: all states must be treated equally in their capacity to act on behalf of their respective populations (self-determination) and all states enjoy the same legal rights as sovereigns within international law.Footnote ²⁵ What sovereign equality means, Arthur Watts wrote, “is that since all States are sovereign, they are thus neither subject to any external authority nor themselves possessors of authority or pre-eminence over other States, and are accordingly in those respects in principle legally equal with one another as members of the international community.”Footnote ²⁶ Sovereign equality is especially necessary to protect weak states against the coercive intrusions of powerful states.Footnote ²⁷ The 2012 declaration of the high-level meeting of the UN General Assembly on the rule of law emphasized: “We rededicate ourselves to support all efforts to uphold the sovereign equality of all states, to respect their territorial integrity and political independence … .”Footnote ²⁸ A country-by-country study by Noora Arajarvi found that nonaligned countries (120 in total) collectively and individually have “consistently demanded that the international rule of law must be anchored in the principle of sovereign equality.”Footnote ²⁹

Russia and China have affirmed the principle of “sovereign equality,” which includes that “[s]tates enjoy their rights on the basis of independence and on an equal footing” along with “the principle of non-intervention in the internal or external affairs of States.”Footnote ³⁰ A joint statement they issued three weeks before Russia’s invasion of Ukraine states:

Significantly, Russia and China affirm their commitment to international law and human rights, as well as their obligation to serve their populace; they also support democracy, tailored to the conditions of each society. Russia contends that its conduct in Ukraine is justified under international law, as described at the outset. On its treatment of Uyghurs, which has received international condemnation, China denies that it has mass imprisonment camps and insists that the Uyghurs who have been detained have engaged in terroristic acts. Their joint statement contends that foreign critics are imposing their own values and agenda, failing to respect the unique cultural, social, economic, political, and legal circumstances of Russia and China.

Skepticism about Western motives has ample grounds. Many examples of uses and abuses of international law by Western countries to bludgeon other societies can be cited, from Western colonization of large parts of the globe, to the United States invasion of Iraq to topple Saddam Hussein, to torture of detainees by the Bush administration.Footnote ³² The Chinese no doubt recall the Opium War, in which Britain seized control of Hong Kong and, in the name of international law and free trade, forced China to allow in opium brought by the British East India Company.Footnote ³³ International law was born of European notions and practices that were applied as standards to adjudge other nations.Footnote ³⁴ As Terry Nardin describes, this “generated a bifurcated international order: an egalitarian horizontal international law for relations between European states and a hierarchical imperial law for relations between European and non-European peoples.”Footnote ³⁵ International lawyers may insist (exasperatedly) that this is all in the past and not relevant today, but the invasion of Iraq is a recent event, not to mention ongoing US drone strikes in other nations without their permission.Footnote ³⁶ In an article on the international rule of law, James Crawford, a prominent international lawyer who subsequently served on the ICJ, wryly commented: “The United States these days appears to apply the policy: international law for others and not for itself.”Footnote ³⁷

Past and present illegal actions by Western states, of course, do not absolve Russia and China of their own violations of international law. States regularly make factual claims and offer legal justifications for their actions that are not true or not consistent with international law. The factual premises of the US invasion of Iraq were false, and its overthrow of the government and subsequent occupation violated Iraq’s sovereignty, resulting in the deaths of several hundred thousand Iraqi civilians from war-related causes.Footnote ³⁸ Russia’s invasion and attempted annexation of eastern and southern Ukraine patently violates the territorial integrity of Ukraine, and its deliberate attacks on civilians are war crimes;Footnote ³⁹ and strong evidence has been compiled that China is violating the human rights of Uyghurs.Footnote ⁴⁰

The point of this discussion is that, owing to well-founded concerns about wars, conflicting interests, a mutual lack of trust, nationalism, contrasting political and moral values, and the depredations of powerful states on weak states, international law constructs a nested dual arrangement in which states have the primary duty to protect their populace and are shielded from coercive foreign interference in their treatment of their own citizens (except when this treatment rises to the level of flagrant and extreme human rights violations, and even then with great reluctance). This arrangement gives a state regime great scope to harm its populace – a sadly common occurrence but no other approach is currently viable. For these reasons, the preservation of state autonomy within a community of states is a direct objective of international law, even as it strives to protect individuals.

Waldron may be correct that “ultimately, international law is oriented to the well-being of human individuals, rather than the freedom of states.”Footnote ⁴¹ But international law serves this goal via protections for state autonomy and equal sovereignty to act on behalf of citizens. Protections for state sovereigns, I argue below, are and should be included within the benefits of the international rule of law for the good of individuals in societies around the world.

III Horizontal and Vertical Functions of the Rule of Law

Disagreement over what the rule of law means and its defining features, requirements, and purposes is endemic.Footnote ⁴² Even greater disagreement exists over the rule of law in the international context – including doubts about whether the rule of law applies beyond the nation-state.Footnote ⁴³ Given this pervasive state of disagreement, declarations about the rule of law should be taken, not as generally agreed-upon descriptive or conceptual claims, but as arguments offered by theorists to persuade others about how the rule of law should be understood.

When evaluating these arguments, one must be wary of shifts from conditional assertions to unconditional assertions. Early in his essay, Waldron states: “We usually say that the point of the ROL is to protect individual values like liberty, dignity etc.”Footnote ⁴⁴ (“Usually” is a conditional assertion.) It is true that many theorists highlight liberty and dignity – Waldron calls it “Hayekian freedom”Footnote ⁴⁵ – though there is no consensus that this is the point. Later in the essay, Waldron puts it in stronger terms: “[T]he whole point of the ROL is to secure individual freedom … . To eliminate uncertainty in the interests of freedom and to furnish an environment conducive to the exercise of individual autonomy – that is the raison d’etre of the ROL.”Footnote ⁴⁶ But this statement is too unequivocal for a concept that Waldron himself famously called “essentially contested.”Footnote ⁴⁷ And this assertion carries much of his argument. Once he identifies the point of the rule of law as advancing individual autonomy, and the purpose of international law as being to protect individuals, it all but follows that states are not entitled to the benefits of international rule of law – since states are not individuals and, Waldron emphasizes, “are not the bearers of ultimate value.”Footnote ⁴⁸

Martin Krygier, another influential rule-of-law theorist, recognizes that “many problems have been identified for the rule of law to solve.”Footnote ⁴⁹ “And in truth, all sorts of goods are today claimed to flow from it – e.g., economic development, human rights, and democracy.”Footnote ⁵⁰ While rule of law is linked to various benefits and solutions to various problems, he writes: “Rule of law traditions have particularly focused on arbitrary exercise of power, often using precisely that word, as the antihero in the rule of law story.”Footnote ⁵¹ Krygier identifies the telos of the rule of law as restraining the arbitrary exercise of power, and he analyzes various implications of seeing the rule of law in terms of this end.Footnote ⁵²

Presenting the rule of law in terms of a singular purpose or point or end is problematic for several reasons. To start with, various purposes have been identified by theorists, including Waldron and Krygier, who correctly assert that theories about the rule of law have often referred to the (different) purpose each highlights. But centering on liberty produces different emphases and implications for the rule of law than centering on restraining the arbitrary exercise of power. Why pick one as the end when both have been identified for sound reasons? Furthermore, the assertion that the rule of law serves a specific purpose (telos) that explains its existence (raison d’etre) fits uneasily with how the rule of law has come about. The rule of law (whatever it means) was not designed or created by anyone for a particular purpose, but rather evolved over centuries owing to a confluence of beliefs, motivations, circumstances, and institutional developments in connection with cultural, religious, economic, political, legal, and other factors.Footnote ⁵³ Every rule-of-law society has a unique history, institutional arrangement, and set of consequences. Assertions about the purpose is a projection by given theorists based on their particular priorities. For instance, consistent with his liberal commitment to economic liberty and his antagonism to the social welfare state, Hayek proclaimed that the rule of law is about individual freedom.Footnote ⁵⁴ Another objection to claims about the purpose or point is that that social institutions commonly have multiple uses and do various things, so selecting one downplays or obscures others that may also be significant. Encompassing various functions provides a fuller understanding and appreciation of the rule of law at the national and international levels. In a study of historical and conceptual discussions of the rule of law, Richard Fallon gleans three purposes: “to protect against anarchy and establish a scheme of public order, to allow people to plan their affairs with advance knowledge of the legal consequences, and to protect against at least some types of official arbitrariness.”Footnote ⁵⁵

Rather than project a single purpose, let us instead focus on function, understood in terms of what the rule of law does (its effects). Bypassing the theoretical impasse over definition and elements, my starting point is a basic proposition about when the rule of law exists: the rule of law exists in a society when government officials and legal subjects are bound by and abide by law. “Legal subject” includes people as well as entities with legal personality (i.e., corporations, organizations, states, etc.) that engage in actions addressed by the law. The rule of law, then, is an ideal that strives to achieve an effective legal ordering within a community. As I show, this conception of the rule of law applies within states as well as at the international level.

This formulation does not reduce the rule of law to simply following the law. It is the ideal of a legally ordered community. Law does not address all actions and no society is completely legally ordered – matters not regulated by law always exist and legal violations always occur. This ideal is actualized as a matter of degree; its degree of achievement varies across locations as well as across areas of legal regulation (economic transactions, criminal conduct, government actions, etc.); and it is achieved to a greater extent in rule-of-law societies than at the international level.

Now let me summarily identify five major functions of an effective legal ordering within a community grounded in the ideal of universally binding law (others functions may exist as well).Footnote ⁵⁶ The first two functions, as Waldon and Krygier respectively assert, is that the rule of law enhances individual freedom and dignity, and restrains the arbitrary exercise of power.Footnote ⁵⁷ A third crucial function the rule of law provides is overall security and trust that one is protected from intentional and negligent injuries by others, that one’s property is protected, that economic exchanges will be effective, that the government will carry out its duties, and so forth, allowing actors to rely upon the presence of legal rules and institutions that protect, enable, and stand behind their activities in case something goes wrong.Footnote ⁵⁸ A fourth function is that rule of law in modern society gives rise to (constructs or constitutes) a multitude of institutions and relationships in society – from the creation of corporations, to property ownership and contractual relations, to business transactions, to employment relations, to the creation and operation of government and private organizations, and vastly more. Fifth, drawing on the preceding functions, the rule of law enhances economic development.

All five functions matter greatly. Personal liberty is important, to be sure, but theorists inclined to prioritize individual liberty among these various benefits should recognize that not all cultures and circumstances share this priority, nor is it obviously the most fundamental. Protection from arbitrary government power is essential, though other threats and concerns exist. If a pervasive lack of security and trust prevails, social interaction would be limited and productive activities would freeze. Large scale societies function vastly more effectively thanks to the constitutive power of law. Economic development provides basics like food, water, clothes, shelter, sanitation, medical care, and education, which are prerequisites to exercising freedom.

For the purposes of analysis, it is useful to subdivide these functions into two perspectives on the rule of law: vertical and horizontal. The vertical perspective emphasizes coercive government treatment of citizens, whereas the horizontal perspective emphasizes actions and intercourse within society. The first two functions identified above – enhancing liberty and restraining arbitrary power – are based on the vertical perspective, derived from liberalism’s concerns about government tyranny and individual liberty.Footnote ⁵⁹ The other three functions – bringing security and trust, constituting relations and institutions, and enhancing economic development – are based on the horizontal perspective that encompasses the benefits of the rule of law within society generally.Footnote ⁶⁰ The horizontal benefits of the rule of law are enjoyed by all actors within society, including the state, and, as explained shortly, they have particular relevance to the international rule of law.

IV What Waldron Overlooked When Excluding Sovereigns

Waldron’s argument that states are not subjects entitled to the benefit of the rule of law is sophisticated and lengthy, so only a summary of his core points can be provided here. As mentioned, he identifies the purpose of the rule of law as enhancing individual freedom, and the purpose of international law as protecting individuals.Footnote ⁶¹ He points out that since the rule of law is about placing legal restraints on government in furtherance of individual liberty, its primary thrust is to constrain the liberty of government. “Governmental freedom is not the raison d’etre of the ROL.”Footnote ⁶² Waldron challenges the conventional analogy between states in the international community under international law and the position of individuals within society under domestic law. This analogy is misleading, he contends, for “it must be understood that the state is not just a subject of international law; it is additionally both a source and an official of international law.”Footnote ⁶³ So “regulating a sovereign state in international law is more like regulating a law-maker in municipal law than like regulating a private individual.”Footnote ⁶⁴ Sovereign states at the international level have the same potential for governmental abuse that the domestic rule of law guards against.Footnote ⁶⁵

It follows, therefore, that sovereigns are not entitled to the benefits of the rule of law.

A notable feature of Waldron’s analysis is the determinative weight he places on the domestic rule of law in his analysis of the international rule of law. He does not seriously contemplate whether or how the rule of law in such different arenas can be understood on their own terms.Footnote ⁶⁷ Before suggesting an alternative starting point for the international rule of law in Part V, this discussion identifies an aspect of domestic rule of law that Waldron overlooked, tied to the horizontal benefits of the rule of law identified above.

Waldron overlooks that a comparable coexistence of official capacity and legal subject also holds in the national context: government entities operate in public roles while exercising rights as legal subjects in their various activities. At the domestic level, recognition that government officials are limited by law, as the rule of law holds, does not diminish or detract from the benefits the government obtains through the rule of law in its activities like any other actor within a legally ordered society. To put this point in terms of the preceding discussion, Waldron’s conception of government in the national context was limited to the vertical dimension of the rule of law that emphasizes legal limits on government actions against the populace, but he ignored the horizontal dimension of the rule of law in which government benefits from the rule of law. Within domestic legal systems, the horizontal dimension operates vis-à-vis private actors (people and entities), and vis-à-vis other government entities.

In its interaction with private actors, the government itself relies heavily on, and benefits from, a legally bound order because many of its daily activities are legally constituted and arranged. Think of government contracts with employees, suppliers of goods and services, banks for loans and bond issues, landlords for rental property rented for government use, and in other ways, utilizing law in its undertakings; ordinary tort law, property law, and criminal law also apply to and protect governmental activities and assets. The government benefits from the predictability, certainty, security, trust, and constitutive aspects achieved by an effective legal order. In myriad contexts when carrying out its public role, the government holds, utilizes, and exercises the same legal status and rights as all actors in society.

Governments also rely on and benefit from the legal ordering in their relations with other governmental entities in the furtherance of their public responsibilities. In the United States, individual states have sued other states on a variety of matters, including boundary disputes, distribution of water rights from shared rivers, harm from pollution, contract claims, acquisition of property from people who die without heirs, disputes over domicile for tax purposes.Footnote ⁶⁸ Individual states have also brought suits against the federal government as well as against federal agencies in support of “the State’s sovereign interest in the continued enforceability of state law.”Footnote ⁶⁹ And the United States has sued states on a variety of federal matters.Footnote ⁷⁰

Consider the situation as a coexisting bifurcation of governmental roles. In domestic rule-of-law systems, on the one hand, government officials are subject to legal restraints in their actions directed at citizens and entities (vertical dimension), and, on the other hand, governments are legal subjects with enforceable powers and rights like all actors (private and public) within a legally ordered community (horizontal dimension). The fact that we want government to be limited by law does not erase the fact that the government has rights as a legal subject entitled to equal treatment under law, to predictability and certainty, to the application of public, prospective rules, to an unbiased judge, and to all other aspects of the rule of law. Which aspect of this bifurcation matters in a given instance depends on what is at issue in that situation. This same coexisting bifurcation holds in the international arena.

V Why International Rule of Law Does Benefit Sovereigns

A great deal of sophisticated theoretical analysis has been written on the international rule of law. Disagreement prevails. Every account of the rule of law – including the one I sketch here – is proffered by theorists in the conviction that their particular articulation is descriptively, theoretically, and/or normatively useful. Remember that political and legal theorists do not have exclusive or final authority over what the rule of law means. Many theoretical analyses are grounded on what theorists (Dicey, Hayek, Raz, Waldron, and others) have said about the rule of law, but it is an ideal shaped by how people collectively understand the rule of law. When states and other international actors repeatedly express their desire for and commitment to an international rule of law, it makes sense to try to discern what they mean by this, and in what sense it is achievable and desirable.

Waldron’s position is substantially weakened by the fact that it contradicts past and recent pronouncements about the rule of law by actors on the international level, and is inconsistent with international law treatment of states. The UN General Assembly condemned Russia’s aggression against Ukraine as a breach of “the rule of law among nations,” in contravention of international law prohibitions against “the threat or use of force against the territorial integrity or political independence of any state.”Footnote ⁷¹ The clear import of these statements is that Ukraine – in its status as sovereign state – is entitled to the benefits of the rule of law.

The unanimously adopted 2012 Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels expressed agreement in being “guided by the rule of law, as it is the foundation of friendly and equitable relations between States and the basis on which just and fair societies are built.”Footnote ⁷² Paragraph 2 specifies who is subject to, as well as benefits from, the rule of law:

Subsequent paragraphs reaffirm a commitment, consistent with the rule of law, to “all efforts to uphold sovereign equality of all States”;Footnote ⁷⁴ to respect for “territorial integrity and political independence”;Footnote ⁷⁵ to “non-interference in the internal affairs of states”;Footnote ⁷⁶ to refraining from the use of force against other states;Footnote ⁷⁷ to the duty to peacefully settle disputes;Footnote ⁷⁸ to the universal value of human rights and democracy;Footnote ⁷⁹ to the belief that “the rule of law and development are strongly interrelated and mutually reinforcing” and necessary to eradicate poverty;Footnote ⁸⁰ to recognizing “fair, stable and predictable legal frameworks” as necessary for international trade;Footnote ⁸¹ to the importance of international cooperation in combating transnational criminal networks (trafficking in drugs, money laundering, arms, people, terrorism);Footnote ⁸² and much more.

Three seminal points about the international rule of law stand out from these passages. First, they portray the rule of law as the basis for friendly and equitable relations among the international community of states. That is consistent with my characterization of the rule of law as an ideal that strives to achieve an effective legal ordering within a community. Second, they state that all persons and entities in the international arena, explicitly including the state, are bound by law and also entitled to the protection of law. Under this formulation, the state is not treated differently from any other person or entity within the community, which is consistent with my earlier description of legal “subject” as covering both people and entities with legal personality (corporations, organizations, states, etc.) that engage in actions addressed by the law. Third, consistent with the expressed desire for friendly and equitable relations within the international community, the bulk of matters mentioned relate to the horizontal dimension of the rule of law. The passages emphasize respecting sovereignty in order to generate mutual security and trust, creating certainty and predictability for economic exchanges and development, and cooperating to fight crime and terrorism and control money flows – all of which are about the benefits of the rule of law to nations and international society. This account encompasses a number of rule-of-law benefits beyond enhancing individual freedom.

In fairness to Waldron, the Declaration was issued a year after his article, but this perspective on the international rule of law is not a recent development. Under the heading “Rule of Law,” the 2005 UN World Summit Outcome stated:

Again, the rule of law is presented as the (horizontal) ordering of the community of states under international law. In 1970, a UN Declaration on Principles of International Law adopted by the General Assembly cited “the paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations.”Footnote ⁸⁴ Commenting on this and similar statements, three decades ago, Arthur Watts observed that the international rule of law must be understood as “legal ordering of affairs within [the international] community.”Footnote ⁸⁵

“International society is a society of states; international law seeks to achieve the goals and values of that society; it does so primarily by regulating states,” Anne-Marie Slaughter declared.Footnote ⁸⁶ The vision of international law as a society of states subject to legal regulations matches Kant’s celebrated outline of the conditions for perpetual peace:

…

In an article on international rule of law, Terry Nardin recognizes that “states can be subjects of law – ‘legal persons’ with rights and duties under international law. International law makes that assumption by treating states as artificial persons who associate, like citizens, on the basis of law.”Footnote ⁸⁸ The international rule-of-law ideal entails a legally ordered international community of states and other actors.

Waldron argues that it is wrong to see the international community of states as analogous to individuals within society.Footnote ⁸⁹ But this analogy is ingrained within international law, and it is an apt depiction of the international situation. Interpersonal violence and abuse of power within society – say, when a powerful person or gang attacks a weaker person to injure them and seize their assets – is directly analogous to when a strong state or coalition attacks or seizes the territory of a weaker state. Both contexts involve the lawless, violent, arbitrary abuse of power, antithetical to the (horizontal) rule of law. When a few states are militarily and economically strong, while many states are weak, Arthur Watts wrote, only through international legal ordering “can the conditions be established for increased prosperity and security, whether of individual States or of the international community as a whole.”Footnote ⁹⁰

Russia illegally and arbitrarily utilized its superior military might against the government, territory, and citizens of Ukraine, killing and maiming people and causing millions to flee, disrupting the functioning of government, destroying their collective security, trust, and economy. The United States also inflicted grievous harm on the state and populace when it illegally invaded Iraq. The respective actions of Russia and the United States, in turn, had severe regional and global consequences that harmed people in many societies around the globe. To vindicate their sovereign equality and repair their governments and the lives of their people, Ukraine and Iraq should be entitled to access legal tribunals and remedies for these violations of international law. The geopolitical reality that great powers cannot be forced to acknowledge and rectify their illegal wrongdoings does not mean international law is weak or not law – no legal system successfully holds all law violators (particularly powerful ones) accountable. Rather, their lawless conduct is exposed as all the more reprehensible by its very abuse of power, flouting the rule of law of international ordering with devastating consequences, while shamelessly claiming legal justifications for their actions.

There are multiple examples, beyond wars and invasions, where international law secures the benefits of the rule of law for sovereign states and their populace. Treaties and international agreements between states cover trade, aviation, communications, intellectual property, climate change, and numerous other matters. International and transnational laws and regulations combat illegal drug trade and terrorism, secure borders, manage cross-border financial flows, limit nuclear weapons and waste, biohazards, and so forth.

It is true that sovereign states act as officials and agencies with the power to create law at the international level, as Waldron points out, but they are also legal subjects with enforceable legal rights and powers. Only states can bring cases before the ICJ for violations of international law, and only states can file complaints with the World Trade Organization’s Dispute Settlement Body against other states for violating trade agreements. The vast majority of cases at the International Tribunal of the Law of the Sea involve conflicts between states over violations of national maritime rights. European nations have brought actions in the European Court of Justice against another European nation for breach of EU law.Footnote ⁹¹ Sovereign states also have enforceable rights in the courts of other nations that provide for such suits. For instance, foreign states have filed over 300 suits in US courts against private parties as well as government defendants, raising commercial claims, treaty violations, and other legal claims.Footnote ⁹² In many of these suits the sovereign state is defending its own powers and rights (the state’s trade agreement, the state’s territory, the state’s maritime border, etc.), while in others it is acting to vindicate the rights and interests of its citizens or private companies.

The common treatment of sovereign states as legal subjects with enforceable rights in both national and international contexts requires Waldron to draw a tenuous line: although states are subjects with enforceable legal rights, nonetheless they are not beneficiaries of the rule of law. This stance works only if one accepts that the only benefit of the rule of law is individual freedom and only the vertical dimension of the rule of law matters.

It is plain, however, that legal principles, rules, and regulations at the international level constitute relations and institutions, and provide and enhance certainty, predictability, security, trust, and economic development within the international community, which are important benefits of the rule of law. These benefits accrue to all legal subjects with rights and obligations, including individuals, corporations, international organizations and agencies, sovereign states, and other entities in the international arena, consistent with the 2012 Declaration’s affirmation that sovereign states (like all other entities) are “without discrimination entitled to equal protection of the law.”Footnote ⁹³

In debates about how the rule of law should be understood, one must consider whether particular accounts are descriptively apt, theoretically sound, and normatively beneficial – the latter considering whether desirable consequences follow therefrom. The ideal of an international rule of law as the basis for the legal ordering of friendly and equitable relations that benefits individuals, states, and all other legal subjects, fits international law principles and matches the expressed understanding and desires of international actors. It is a theoretically sound way of seeing the benefits of the rule of law in holistic terms within a legally ordered society. As a pragmatic matter, furthermore, states will see it as being in their self-interest to commit to the international rule of law if they stand to benefit therefrom, which will help bring about a more effective legal ordering. Ian Hurd remarks: “The international rule of law refers to the intellectual and political commitment … to the idea that all state behaviour should conform to whatever international legal obligations relate to it and that the result of executing this commitment faithfully is a well-ordered international space.”Footnote ⁹⁴ Individuals around the globe – and every sovereign state – would be better off if this ideal was substantially realized at the international level.

VI The Emerging Transnational Legal Ordering

The discussion thus far has been framed in terms of the international rule of law – with an emphasis on international law, to comport with Waldron’s framework – but my analysis applies more generally to the emerging transnational legal ordering of the international community.Footnote ⁹⁵ Transnational legal ordering encompasses all forms of law and regulation that address matters between and across states, a great deal of which is outside of international law proper. This includes local, national, and international law and regulations and it involves public and private actors, organizations, and tribunals. It addresses cross-border matters like trade in goods and services; migration; money flows and banking; pollution control and environmental regulation; regulation and taxation of multinational corporations; shipping, rail, and air travel; telecommunications and the internet; terrorism; global health matters like pandemics; intellectual property; and much more. Much of this regulatory activity has been prompted by the expansion and intensification of capitalism around the globe and technological advances in telecommunications and transportation. All nations are now mutually intertwined in multiple ways with other nations that require coordination and regulation. This ongoing proliferation of law and regulatory regimes and institutions constitutes an extension and thickening of legal ordering in connection with activities and consequences that cross state borders. Absent world-devastating man-made or natural catastrophes – looming possibilities in an age of nuclear weapons and rapid global warming – the extension and thickening of law addressing these matters appears likely to continue.

A substantial portion of intercourse between and across nations involves commercial activities, which have beneficial consequences beyond merely economic ones. Montesquieu observed over two-and-a-half centuries ago: “The natural effect of commerce is to lead to peace. Two nations that trade with each other are reciprocally dependent.”Footnote ⁹⁶ (Think of China and the United States today.) Kant made the same point: “The commercial spirit cannot co-exist with war, and sooner or later it takes possession of every nation.”Footnote ⁹⁷ Commerce at a distance is facilitated by legal rules, regulations, and tribunals.Footnote ⁹⁸ The European Union is a nonpareil, economically based transnational legal ordering built on the ideal of the rule of law. National, bilateral, regional, and global regulatory regimes dealing with transnational economic activities (not to mention private elements like arbitration, model contract terms, commercial usages, and so forth) are abundant and increasing.Footnote ⁹⁹ One commentator on transnational economic law estimated that “90 percent of international law work is in reality international economic law in some form or another.”Footnote ¹⁰⁰

Many actors operate within and utilize the transnational legal ordering of the international community: individuals, municipalities, state agencies, private corporations, public corporations, NGOs, regional and international organizations (United Nations, World Trade Organization, World Bank, International Monetary Fund, and a multitude more), sovereign states, and others. Rule-of-law theorists who emphasize individual freedom and preventing governmental abuse of power should bear in mind that states are not the only actors who pose dangers to individuals. International organizations like the UN Security Council and the World Bank have enormous power; transnational corporations rival states in wealth and influence;Footnote ¹⁰¹ and both have the capacities to coerce states (particularly weak states) and harm their populaces. Seeing the rule of law as an ideal of effective legal ordering within, between, and across nations in the international community that restrains and benefits all actors provides the most adequate way to address the global situation.

Let me close with a note of optimism, albeit not easy to hold on to with so many dire events occurring in the world today. Over centuries of gradual development, the rule of law emerged within societies that embraced the rule-of-law ideal that everyone – people and corporate entities, rich and poor, government officials, monarchs – is bound by and should abide by law. Indications of this ideal taking hold on the international level are evident, at least in word if not always in deed. Keep in mind that when the domestic rule of law developed, sovereigns routinely swore oaths to abide by the law, which they nonetheless violated when it suited their interests, although they endeavored to justify their actions as consistent with law. This pattern of conduct is being repeated on the international level today, as sovereign states, transnational corporations, international organizations, and everyone else, increasingly claim to uphold the rule of law. The universal avowal of this ideal is a necessary step on the path to achieving the national and international rule of law, though there is a long way to go.

I Introduction

The rule of law – understood as a societal equilibrium in which state and society are bound by law, and in which the state provides an enabling environment for people to enjoy their rights – is considered an essential element to guarantee the development of modern societies. Around the world, however, strengthening the rule of law remains a pending task. Despite the democratizing waves that emerged after the Cold War and multiple advances in the areas of transparency and justice, the world seems to have entered a stage of institutional stagnation and democratic backsliding. In 2019, more than 5 billion people lacked access to justice,Footnote ¹ and few countries made significant progress against corruption in the last decade.Footnote ² Moreover, democracy has been in decline worldwide. In 2021, Freedom House reported the sixteenth consecutive year of democratic erosion and the Varieties of Democracy (V-Dem) institute reported that the level of democracy enjoyed by the average global citizen in 2021 fell to 1989 levelsFootnote ³, which means that the advances of the third wave of democratization have receded.

In response to this crisis, scholars have recently turned their attention to documenting these trends and to examining why democracies are breaking downFootnote ⁴. These studies have focused on democratic backsliding but have neglected to study rule-of-law backsliding. There are virtually no empirical studies examining this issue, and the existing theoretical sources that discuss it only do so in reference to the European Union.Footnote ⁵ Although the principles of democracy and the rule of law are closely related, they are not the same. As stated by Shaffer and Sandholtz in Chapter 1, “The issue of democratic governance poses the question of who exercises power. Rule-of-law-concerns examine the question of how’ power is exercised.” More specifically, definitions of democracy are typically centered on free and fair elections (electoral democracy) and on the provision of civil liberties and political rights (liberal democracy). In contrast, definitions of the rule of law focus on compliance with and enforcement of the law, and the imposition of limits on the exercise of power, although there is no consensus on the specific elements to be included in a universal definition. Rule of law is therefore a broader concept than democratic governance and demands a more comprehensive analysis.

In this chapter, we explore whether the rule of law has deteriorated around the world in recent years, and if so, how this shift has occurred and where. We generate indicators using various conceptualizations of the rule of law, including some focused on the imposition of limits on the arbitrary use of power by agents of the state – such as proposed by Shaffer and Sandholtz in Chapter 1 – as well as thicker conceptualizations that include not only the imposition of limits on executive discretion but also the creation of an enabling environment where citizens can enjoy their rights. We then examine the variations in these indicators with a view to unpacking the sources of the rule-of-law backsliding. We also explore whether such backsliding has occurred in countries with high or lower levels of rule of law, and whether this trend is associated with the recent rise to power of leaders with populist or antipluralist tendencies.

It is clear to see that authoritarian leaders may seek to dismantle institutional checks and balances – or dismantle the “guardrails of democracy” mentioned by Levitsky and ZibblatFootnote ⁶ – in order to restrict fundamental freedoms and weaken transparency and accountability. However, it is not obvious that authoritarian leaders are interested in encouraging particularism and corruptionFootnote ⁷ or in causing a deterioration in administrative agencies or security and justice systems. Indeed, autocratic leaders have mixed incentives to develop state capacity. On the one hand, state-building can help address citizens’ demands and strengthen the control apparatus. On the other hand, state-building can generate resistance – for example, through the strengthening of bureaucracy – and fuel collective demands for the right to participate in the decision-making process.Footnote ⁸

To explore these questions, we use data from the World Justice Project’s WJP Rule of Law Index covering more than 100 countries from 2015 to 2022. This dataset contains indicators on various dimensions of the rule of law, including those that capture the limits on the exercise of power by state agents and the limits imposed by the state on the actions of members of society. These indicators’ scores are generated from assessments by the general public and in-country legal practitioners and range from 0 to 1, with 1 representing strongest adherence to the rule of law.

We find that the rule of law has indeed deteriorated in recent years around the world. Aggregate WJP Rule of Law Index scores, which capture perceptions about the functioning of the state and institutional checks and balances, fell in 74 percent of countries between 2015 and 2022, with the decline averaging −3.1 percent This fall, however, has not been homogeneous across indicators. The indicators of fundamental rights and constraints on government powers fell during this period in 76 percent and 68 percent of countries and by an average of −6.7% and −5.1%, respectively. Other indicators’ scores, constructed from disaggregated WJP Rule of Law Index data, tell a similar story. The scores of the indicators capturing the sources of arbitrariness proposed by Shaffer and Sandholtz fell in more than 60 percent of countries. Similarly, scores measuring anti-authoritarianism fell in 68 percent of countries by an average of −5.5%. In contrast, scores under the state capacity indicator, which capture perceptions of the functioning of the regulatory, security, and justice systems, fell in only 56 percent of countries and by an average of only −0.3%. To further investigate the backsliding and examine the countries in which it has occurred, we use cluster analysis of the change over time in the main indicators of the WJP Rule of Law Index. We identify three groups of countries. The first is composed of countries that have experienced a deterioration in all indicators, but most notably in those measuring limits to state power, open government, and respect for human rights, and that already had low rule-of-law levels in 2015. The second group is composed of countries where overall rule-of-law trends have also declined, but less severely. These countries had different levels of rule of law in 2015, although higher than the levels of the first group, and have also experienced considerable declines in the indicators measuring limits to state power and respect for human rights. The third group is composed of countries where most indicators have experienced slight improvements. This group is composed of countries in transition, such as Kazakhstan, and countries with high levels of rule of law located mainly in the European Union.

These results suggest that the rule-of law-backsliding has been incremental and driven by the weakening of limits on state power, as measured by the governmental and nongovernmental checks and balances and the protection of fundamental rights and freedoms, rather than by an acute deterioration in the application or enforcement of the law or in access to justice (except in those cases that have experienced a sharp decline). Furthermore, although significant, backsliding in most countries has been less pronounced, probably due to less severe shocks, greater institutional strengthFootnote ⁹, economic developmentFootnote ¹⁰, state capacityFootnote ¹¹, developed bureaucracy, effective oppositionFootnote ¹², free and critical press and civil society, or changes in administration during the period. Overall, our results indicate that the weakening of the rule of law appears to be associated, in part, with an increase in the authoritarian tendencies of certain regimes and, in part, with the rise of antipluralist and populist leaders. Our analysis is limited to the years 2015 to 2022, as the data for previous years is not comparable. Nonetheless, other data sources show improvements in the earlier periods, which may indicate a wave effect, rising in the preceding three decades and then falling more recently.

Our contribution to the literature is threefold. First, our chapter is the first to analyze empirically the issue of rule-of-law backsliding at the transnational level, approaching it from a broad perspective bearing in mind that there is no consensus about the meaning of this concept. Second, our chapter contributes to the debate on the way in which the ascension of antidemocratic leaders affects various dimensions of the rule of raw and, more broadly, to the literature on democratic decline. Finally, methodologically, very few studies have applied cluster analysis to analyze and group different trends across countries. In this regard, our work is closely related to the “democracy cluster classification” index developed by Ristei and Centellas, where the authors use hierarchical cluster algorithms to classify countries according to their regime types and trends in democratic governance.Footnote ¹³ Our work has several limitations. Our analysis is mostly descriptive and does not explore the causes of the rule-of-law backsliding or the different institutional structures that might explain the cross-country variations. The analysis focuses on national trends and omits subnational variations, which can be important in federalist and decentralized countries. Our analysis is also limited to recent years and uses perception data. In spite of this, the analysis is useful for laying the groundwork for in-depth comparative analysis and case studies.

The rest of this chapter proceeds as follows. In Part II, we explore the concept of the rule of law. In Part III, we describe the data. In Part IV, we develop our analysis. Finally, in Part V, we conclude.

II The Rule-of-Law Concept

The first step in determining whether the rule of law has deteriorated in recent years is to define the concept. Although the rule of law is considered central to achieving a wide variety of social goals –such as promoting peace, justice, and economic development – there is little consensus on what it means, and little literature exploring the notion of rule-of law-backsliding, its sources, or how the rule of law emerges or recovers in environments where it has deteriorated or does not exist.Footnote ¹⁴

Across the literature, it is possible to identify two principal conceptions of the term: a formalist, or “thin,” definition and a substantive, or “thick,” definition. Formalist definitions of the rule of law do not make a judgment about the legitimacy or justness of the laws themselves. Instead, they focus on procedure. They focus on whether rules exist and scrutinize whether those rules are followed by all, including the sovereign: “Stripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand.”Footnote ¹⁵. In contrast, substantive or “thick” definitions take into consideration certain rights that are seen to be fundamental to the rule of law and incorporate adherence to normative standards of rights, fairness, and equity.Footnote ¹⁶

A central element in most of these conceptualizations is that the law imposes limits on the arbitrary exercise of power by the government and other social actors, although the emphasis is usually put on the restraints imposed on the ruler. This approach can be found, for instance, in the working definition offered by the European Commission in 2014 in a communication titled A New EU Framework to Strengthen the Rule of Law, where it distinguished six core components based on various rulings by the Court of Justice of the European Union (CJEU): legality; legal certainty; prohibition of arbitrariness on the part of executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law. Subsequently, this definition was slightly refined in a 2019 communication, Further Strengthening the Rule of Law Within the Union: State of Play and Possible Next Steps, in which the Commission observed: “Under the rule of law, all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts.” Shaffer and Sandholtz similarly refer to some of these elements in their discussion of sources of arbitrariness and attendant rule-of-law definitions – i.e., application of law to rules, predictability of published rules, fora for bringing challenges, proportionality of means to ends, and reason-giving.Footnote ¹⁷

Other conceptualizations have gone beyond this narrow formulation – protection from the sovereign or from each other – to include additional organizational features of a society, such as the existence of an environment in which people can enjoy their rights, use the law proactively to pursue their goals, and secure redress when those rights are violated. This is captured, for instance, in the definition proposed by the United Nations: “The rule of law … refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.”Footnote ¹⁸ A similar approach can be found in the definition used by the World Justice Project (WJP):

These various definitions all consider the rule of law in terms of its goals or outcomes, as opposed to means (or inputs), which is important as it allows “rule of law” to be distinguished from “rule by law” and for different types of institutional arrangements to be used to attain them.

In this chapter, we distance ourselves from questions about how legal orders arise, or how various conceptualizations differ, and instead follow a practical approach to operationalize some of these definitions. We use the indicators of the WJP Rule of Law Index as a starting point. Taken together, these indicators capture the idea of the rule of law as a societal equilibrium in which the state and members of society are bound by law,Footnote ²⁰ and in which the state limits the actions of members of society and provides an enabling environment so that the public interest is served, people enjoy their rights and are protected from violence, and all members of society have access to dispute settlement and grievance mechanisms. This approach has three advantages. First, it looks at the rule of law not only as an ideal of societal coexistence but also as an equilibrium arising from the interaction of institutions and beliefs that shape the behavior and collective actions of members of society. This equilibrium varies depending on the sphere of action of the law and, more importantly, the functioning of the legal and institutional frameworks, the relative power of the agents to whom they apply, and the role of social norms and voluntary compliance. In particular, the normative frameworks, which range from the constitution to secondary laws, executive regulations, and public policies, and the way in which the state agencies in charge of interpreting, enforcing, or making use of them function (congresses, judicial system, police, government agencies, etc.) shape agents’ behavior and beliefs and generate different types of incentives and equilibria.Footnote ²¹ These institutional frameworks reflect the fundamental patterns of social organization and power distribution in society and are shaped by the agents through institutional and political processes. Second, this approach is consistent with the definitions in the literature and envisages the rule of law comprehensively, incorporating classic guidelines on the exercise of power by the state as propounded in Hobbesian and Madisonian thinking.Footnote ²² It is state-centered and focuses on how governments perform – that is, how they exercise authority and how they administer and enforce laws. Thirdly, our approach is tailored to the data, allowing us to empirically assess the status and evolution of various rule-of-law outcomes and to dissect the factors contributing to the backsliding.

III Data

In this chapter, we explore three hypotheses: (1) The rule of law has deteriorated around the world in recent years. (2) This deterioration has manifested itself through a weakening of the limits on state power (i.e., the weakening of institutional checks and balances and a deterioration in civil liberties reflected in escalating authoritarian behaviors and legal, organizational, administrative, or budgetary changes (the first element of our definition)). In contrast, regressions in the rule of law have not been characterized by increased particularism or a deterioration in the functioning of state agencies in charge of interpreting, applying, administering, or enforcing the law (i.e., police, prosecutors, courts, ombudsmen, anticorruption agencies, regulatory bodies, etc.). (3) This backsliding has been brought about, in part, by a deterioration in institutional checks in authoritarian countries and, in part, by the rise, through relatively democratic processes, of leaders with antipluralist and populist tendencies during this period.

Through the lens of these hypotheses, we examine a selection of annual country indicators that measure different dimensions of the rule of law in a large number of countries around the world. Over the last ten years, the World Justice Project has been collecting information from citizens and legal practitioners in the countries surveyed in order to measure adherence to the rule of law in practice and comprehensively. This information, which forms the basis of the WJP Rule of Law Index, is structured around forty-four outcome indicators (or subfactors) and eight dimensions (or factors): constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice. These dimensions incorporate the two elements that characterize various rule-of-law definitions – constraints on executive discretion and an enabling legal environment that provides justice for the people. The scores under the eight factors and forty-four subfactors of the index are drawn from surveys of the general public and legal practitioners, experts, and academics with expertise in civil and commercial law, constitutional law, civil liberties, criminal law labor law and public health in the countries concerned. These data sources capture citizens’ and professionals’ experiences and perceptions of the performance of the state and its agents and the operation of the legal framework in their respective countries or jurisdictions. Therefore, these data capture the situations perceived within countries and do not touch on transnational institutions. The scores in the 2022 edition of the WJP Rule of Law Index were derived from more than 150,000 household surveys and 3,600 legal practitioner and expert surveys in 140 countries and jurisdictions.

In our analysis, we use aggregate index scores, the scores of the index’s eight factors, and composite indicators constructed from combinations of the index factors and subfactors. The indicators use a scale of 0 to 1, where 1 signifies higher adherence to the rule of law. The data in our sample covers 102 countries and the following years:2015, 2016, 2017–18, 2019, 2020, 2020, 2021, 2022. This selection of years is for two reasons: First, it was in 2015 that the concept of rule of law began to have greater visibility. Figure 3.1 shows the relative importance in Google of various terms related to rule of law and authoritarianism, as well as some controls (such as corruption). In these graphs, the positive trend in recent years starts in 2015. These patterns are confirmed in longitudinal cross-country data sources measuring various governance aspects over a longer time frame, such as V-Dem (see Figure 3.2). The second reason is practical: the WJP data is not comparable to data published before 2015 due to the addition of new countries, changes in the methodologies of normalization, and the addition of concepts and questions from that year onwards. Our final data comprises 714 country–year observations (102 countries and 7 years of data).

Figure 3.1

Google trends of selected terms over time.

Source: Google

Figure 3.2

Percentage of democratic vs. authoritarian regimes (2005–21).

Source: V-Dem

The main advantage of the WJP data is that it is multidimensional, which allows us to explore variations across the different dimensions of the rule of law and not just variations in aggregate scores. The underlying data captures information not only on respect of the law by state agents (or on the functioning of institutional checks and balances) but also on the state’s effectiveness in ensuring that citizens respect the law, enjoy their rights, and obtain access to justice. The data can be reorganized to form new indicators that approximate concepts used in different definitions, including those proposed by Shaffer and Sandholtz.Footnote ²³ A further advantage is the data’s numerical nature, which allows us to calculate changes in the different indicators in percentage instead of ordinal terms, and to construct scores from a large number of variables that cover multiple facets of the concepts evaluated. The main disadvantage is that the time frame is relatively short. Nevertheless, the data covers the period of interest. Additionally, the data is based on perceptions and may not reflect the true underlying situation. However, perceptions are important to legal orders as they shape the behavior and beliefs of actors.Footnote ²⁴ To test our third hypothesis, we supplement the WJP data with the V-Party dataset. The latter allows us to construct variables on countries’ exposure to authoritarian regimes over the years. Specifically, we use the V-Party dataset to construct two variables on the political party platforms of candidates coming to power (i.e., antipluralism and populism).

In the analysis, we focus on the percentage changes in the various indicators of the dataset between 2015 and 2022. We use four sets of indicators. The first two are from the WJP: its aggregate rule-of-law indicator, which is an unweighted average of the eight factors that make up the WJP index, and the eight factors of its index. Third, we indicators to approximate the sources of arbitrariness described by Shaffer and Sandholtz. We construct these indicators using the factors and subfactors of the WJP index; however, the matching between the concepts behind the sources of arbitrariness and the data is not very close, as the index indicators come from a different conceptual framework. Fourth, we approximate the indicator of application of law to rulers to the indicator of constraints on government powers of the WJP index (factor 1). This indicator measures the functioning of checks and balances, including legislative constraints, judicial constraints, auditing and review, sanctions, nongovernmental checks, and legally compliant power transitions.

The indicator of predictability of published rules is equivalent to the open government indicator (factor 3). This indicator measures the openness of government defined as “the extent to which a government shares information, empowers people with tools to hold the government accountable, and fosters citizen participation in public policy deliberations.”Footnote ²⁵ The indicator of fora for challenges is equivalent to the civil justice indicator (factor 7), which measures “whether ordinary people can resolve their grievances peacefully and effectively through the civil justice system,”Footnote ²⁶ and the indicator of proportionate link of means to end and reason-giving is the average of the indicators of judicial constraints (subfactor 1.2) and the absence of improper government influence in civil and criminal justice (subfactors 7.4 and 8.6, respectively). Finally, we also use indicators to capture the concept of control of authoritarianism (or anti-authoritarianism), control of particularism (or anti-particularism), and state capacity. We constructed the anti-authoritarianism indicator using the average of the scores of the indicators of constraints on government powers (factor 1), fundamental rights (factor 4), open government (factor 3) and absence of improper government influence in civil and criminal justice (average of sub-factor 7.4 and 8.6). The anti-particularism indicator is equal to the absence of corruption indicator (factor 2), while the state capacity indicator is the average of the indicators of absence of crime (subfactor 5.1), regulatory enforcement (factor 6), and civil justice and criminal justice (factors 7 and 8). We focus on changes over the last seven years because in most countries changes in the rule of law from one year to the next remain relatively small. In part of our analysis we nonetheless show changes over different time periods in order to encompass variations in indicators when a new administration takes over. Table 3.1 describes the factors used as measures in the WJP Rule of Law Index.

IV Empirical Analysis

1 Is the Rule of Law in Decline?

We first explore the hypothesis that the rule of law has been in decline around the world since 2015 and identify the types of countries in which it has regressed. Table 3.2 shows the percentage changes in the rule-of-law scores for the 102 countries analyzed between 2015 and 2022. Three facts stand out. First, the aggregate rule-of-law score has dropped over time. The average percentage change revealed by this indicator during the period of analysis was −3.1 percent. Approximately 74 percent of countries experienced a decline during these years, in some cases of significant magnitude, and only a few experienced improvements. Those that experienced a decline represent 69 percent of the world’s population. Figure 3.3 presents these changes in the form of a histogram. Moreover, the decline has affected all regions of the world, but particularly the Middle East and North Africa, Latin America, and East Asia and the Pacific.

Table 3.2Annual percentage changes in rule-of-law scores

Backsliding
Country	Δ15–16	Δ16–17	Δ17–19	Δ19–20	Δ20–21	Δ21–22	Δ15–22
Egypt, Arab Rep.	−16.7%	−1.0%	−1.1%	0.1%	−2.8%	−3.7%	−23.5%
Cambodia	−12.2%	−1.1%	0.5%	0.7%	−2.3%	−2.3%	−16.1%
Venezuela, RB	−13.7%	4.0%	−3.5%	−2.6%	−1.5%	3.0%	−14.4%
Nicaragua	−1.1%	3.2%	−6.9%	−2.6%	−3.7%	−3.0%	−13.6%
Myanmar	4.0%	−3.2%	−0.5%	0.0%	−6.3%	−6.6%	−12.3%
Belarus	1.4%	−4.6%	0.8%	−0.5%	−7.5%	−2.2%	−12.2%
Bolivia	−2.7%	−5.2%	0.0%	0.3%	0.9%	−5.0%	−11.4%
Philippines	−3.6%	−7.7%	0.4%	0.8%	−2.9%	1.7%	−11.0%
El Salvador	−3.2%	−2.8%	−0.4%	3.2%	−3.3%	−4.1%	−10.3%
Poland	−0.2%	−5.8%	−0.9%	−1.1%	−2.4%	0.2%	−9.9%
Turkey	−7.2%	−3.1%	2.7%	0.3%	−2.5%	−0.3%	−9.9%
Mexico	−1.7%	−0.7%	−0.2%	−2.8%	−2.9%	−1.8%	−9.8%
Cameroon	−8.0%	−0.1%	2.8%	−4.4%	−2.1%	2.1%	−9.7%
Hungary	−1.3%	−3.9%	−2.2%	−1.1%	−1.4%	0.8%	−8.8%
Georgia	−0.2%	−6.7%	−0.2%	−1.1%	0.5%	−0.9%	−8.3%
Ghana	−3.7%	2.4%	−2.5%	−1.9%	−2.2%	−0.5%	−8.2%
Bosnia and Herzegovina	−1.7%	−4.9%	−0.2%	−1.4%	−0.8%	0.9%	−8.0%
Brazil	2.9%	−3.1%	−1.2%	−2.9%	−2.9%	−0.5%	−7.6%
Iran, Islamic Rep.	7.5%	1.8%	−6.2%	−4.2%	−2.3%	−3.1%	−6.9%
Cote d’Ivoire	−1.4%	1.4%	−1.3%	−0.4%	−3.4%	−1.2%	−6.1%
Albania	−3.2%	0.8%	−0.3%	−1.2%	−1.7%	−0.6%	−6.1%
Bangladesh	−2.1%	0.2%	1.4%	−1.6%	−2.8%	−0.1%	−4.9%
China	0.3%	3.8%	−2.7%	−1.5%	−1.9%	−0.8%	−2.9%
Tanzania	−1.4%	0.2%	−0.3%	0.5%	−1.1%	−0.1%	−2.1%
Average	−2.9%	−1.5%	−0.9%	−1.1%	−2.5%	−1.2%	−9.7%
Neutral
Country	Δ15–16	Δ16–17	Δ17–19	Δ19–20	Δ20–21	Δ21–22	Δ15–22
Korea, Republic of	−7.7%	−1.0%	1.7%	0.0%	0.4%	−0.4%	−7.0%
Botswana	−9.9%	1.3%	1.3%	1.7%	−1.5%	0.7%	−6.9%
Morocco	1.4%	−3.4%	−1.2%	−0.5%	−2.6%	−0.2%	−6.4%
Zambia	0.5%	−0.8%	−1.2%	−2.6%	−2.3%	0.0%	−6.4%
Honduras	−0.5%	−3.9%	−0.3%	0.2%	−2.2%	0.2%	−6.3%
Tunisia	−4.6%	0.3%	−0.2%	0.7%	−1.5%	−0.8%	−6.0%
Lebanon	−5.4%	2.7%	0.2%	−3.3%	−0.9%	1.0%	−5.8%
Uganda	−4.1%	2.6%	0.6%	−1.8%	−0.9%	−0.7%	−4.3%
Russian Federation	−4.1%	3.2%	1.0%	−1.4%	−0.7%	−2.0%	−4.1%
Hong Kong SAR, China	1.3%	−0.4%	−0.2%	−0.4%	−2.0%	−2.3%	−4.1%
Singapore	1.0%	−2.6%	0.0%	−0.9%	−1.0%	−0.6%	−4.0%
Colombia	1.2%	−0.4%	−1.4%	0.8%	−2.2%	−2.0%	−4.0%
North Macedonia	−1.7%	−2.3%	1.8%	−0.9%	−0.3%	−0.2%	−3.6%
Thailand	−0.3%	−1.8%	−0.4%	0.9%	−2.2%	0.1%	−3.6%
United States	1.4%	−1.1%	−1.5%	−0.6%	−2.9%	1.2%	−3.6%
United Arab Emirates	−2.1%	−1.5%	−0.7%	0.6%	−0.9%	1.2%	−3.6%
Liberia	0.1%	1.2%	1.4%	−1.3%	−2.6%	−2.0%	−3.3%
Panama	−1.9%	−0.3%	−0.2%	0.5%	−0.7%	−0.7%	−3.2%
Jordan	4.1%	1.5%	−4.8%	−0.1%	−3.0%	−0.6%	−3.2%
Madagascar	0.6%	−3.9%	−1.4%	2.4%	−0.6%	−0.1%	−3.2%
Peru	3.1%	1.7%	−2.9%	−1.5%	−2.0%	−0.8%	−2.6%
Vietnam	2.9%	−2.1%	−2.4%	0.6%	−0.6%	−0.7%	−2.3%
Austria	1.3%	−2.4%	1.0%	−0.6%	−0.6%	−1.0%	−2.3%
Chile	0.8%	−2.4%	1.5%	−0.9%	−0.8%	−0.2%	−2.0%
Portugal	1.7%	0.9%	−0.8%	−1.1%	−0.6%	−2.0%	−1.9%
Australia	0.5%	0.2%	−0.4%	−0.3%	−1.2%	0.1%	−1.2%
India	1.4%	0.9%	−1.2%	−0.5%	−1.9%	0.3%	−1.0%
France	−2.9%	2.8%	0.0%	−1.3%	−0.9%	1.6%	−0.8%
New Zealand	0.0%	−0.3%	−0.5%	0.3%	0.7%	−0.6%	−0.4%
Costa Rica	0.4%	−0.1%	0.3%	−0.5%	−0.8%	0.4%	−0.2%
Japan	−0.8%	1.1%	−0.8%	0.0%	0.8%	0.0%	0.3%
United Kingdom	3.0%	−0.1%	−0.7%	−1.7%	−0.4%	0.3%	0.4%
Netherlands	3.4%	−0.7%	−1.5%	−0.5%	−0.5%	0.2%	0.4%
South Africa	1.7%	0.3%	−1.6%	1.4%	−0.4%	−1.0%	0.4%
Guatemala	−0.1%	0.1%	4.6%	−2.3%	−1.2%	−0.6%	0.4%
Sri Lanka	0.6%	2.8%	−0.9%	−0.2%	−3.0%	1.2%	0.4%
Uruguay	1.9%	−1.9%	−0.6%	0.7%	0.6%	0.0%	0.5%
Sweden	1.3%	0.2%	−0.4%	0.2%	0.0%	−0.5%	0.8%
Dominican Republic	−3.4%	−0.4%	−0.4%	3.1%	0.0%	2.1%	0.9%
Pakistan	1.1%	1.9%	−0.2%	−0.7%	−0.4%	−0.6%	1.0%
Belize	−2.8%	−0.2%	0.8%	0.1%	0.0%	3.6%	1.3%
Nigeria	9.0%	−1.2%	−1.0%	−0.9%	−3.7%	−0.2%	1.5%
Croatia	1.0%	1.0%	−0.6%	1.1%	−1.0%	0.7%	2.3%
Norway	1.7%	0.8%	0.7%	0.1%	0.5%	−1.5%	2.3%
Romania	6.6%	−0.7%	−1.9%	−1.5%	−0.8%	0.9%	2.4%
Canada	3.8%	0.3%	−0.1%	−0.2%	−1.0%	0.1%	2.9%
Slovenia	1.9%	−0.3%	0.5%	1.7%	−0.4%	−0.4%	3.0%
Average	0.2%	−0.2%	−0.3%	−0.2%	−1.1%	−0.1%	−1.8%
Improving
Country	Δ15-16	Δ16-17	Δ17-19	Δ19-20	Δ20-21	Δ21-22	Δ15-22
Ethiopia	−9.4%	−0.8%	3.3%	5.6%	−1.0%	−2.7%	−5.6%
Serbia	−0.7%	−0.3%	0.1%	0.6%	−1.8%	−0.9%	−3.0%
Afghanistan	−2.2%	−0.3%	0.9%	4.3%	−2.7%	−2.8%	−2.8%
Nepal	−2.2%	1.1%	0.8%	−0.7%	−1.1%	0.5%	−1.7%
Kyrgyz Republic	−0.7%	0.7%	0.9%	1.4%	−3.7%	−0.2%	−1.7%
Malaysia	−5.2%	−0.5%	3.6%	5.1%	−1.4%	−2.4%	−1.1%
Bulgaria	−0.8%	−2.4%	2.4%	0.5%	−1.0%	0.8%	−0.6%
Senegal	0.8%	−4.0%	0.3%	−0.1%	0.5%	2.7%	0.2%
Mongolia	1.1%	0.8%	0.3%	−2.2%	2.0%	−1.7%	0.3%
Ecuador	−3.4%	3.7%	1.2%	2.0%	−0.1%	−2.5%	0.7%
Kenya	−3.5%	4.0%	0.5%	−0.2%	−0.9%	1.0%	0.7%
Indonesia	−0.1%	−0.9%	0.9%	1.3%	−1.0%	1.2%	1.3%
Czech Republic	4.1%	−1.2%	−1.4%	0.6%	−0.4%	0.5%	2.1%
Germany	2.7%	0.0%	0.0%	0.1%	0.4%	−1.0%	2.3%
Finland	3.0%	−0.3%	0.6%	−0.1%	0.4%	−0.9%	2.6%
Sierra Leone			0.1%	−0.9%	−1.5%	1.3%	2.8%
Jamaica	1.5%	0.7%	−2.0%	0.8%	0.4%	1.4%	2.8%
Greece	−0.2%	0.5%	2.3%	−0.9%	−0.5%	1.9%	3.1%
Belgium	2.8%	−2.0%	2.4%	−0.5%	0.6%	−0.1%	3.1%
Denmark	1.9%	0.6%	0.8%	0.0%	0.0%	0.3%	3.6%
Malawi	0.7%	0.6%	0.8%	0.7%	1.0%	0.2%	4.0%
Italy	0.1%	0.6%	0.9%	0.5%	0.2%	1.6%	4.1%
Ukraine	1.9%	1.6%	1.0%	0.8%	0.6%	−1.3%	4.7%
Kazakhstan	1.3%	2.2%	0.9%	0.9%	0.3%	−0.9%	4.9%
Argentina	6.7%	5.0%	0.1%	−0.5%	−3.7%	−1.9%	5.4%
Burkina Faso	3.1%	4.8%	0.5%	−0.1%	−0.9%	−1.4%	6.1%
Estonia	1.8%	1.2%	1.3%	0.0%	−0.1%	1.7%	6.2%
Spain	2.0%	0.9%	2.4%	1.3%	0.1%	−0.2%	6.6%
Zimbabwe	0.8%	0.6%	7.1%	−1.5%	0.0%	0.7%	7.7%
Moldova	2.4%	−0.5%	−1.0%	2.2%	3.2%	1.9%	8.6%
Uzbekistan	−1.4%	1.9%	1.0%	1.7%	4.1%	1.4%	8.9%
Average	0.3%	0.6%	1.1%	0.7%	−0.3%	0.0%	2.5%

Figure 3.3

Distribution of year-to-year changes in rule-of-law scores (2015 to 2022).

Source: World Justice Project

Second, rule-of-law backsliding has been more pronounced in countries that were already authoritarian and where the rule of law was already weak (i.e., Belarus, Cambodia, Nicaragua, and Venezuela) or in countries that have been exposed to emerging leaders with authoritarian tendencies (i.e., Brazil, El Salvador, Hungary, Poland, Philippines, Turkey). The average rule-of-law score for the ten countries in which the decline was steepest is 0.48, while the score for the remaining countries with negative changes is 0.58. In contrast, countries that experienced moderate declines between 0 and −5 percent during the study period (42 percent of the countries) are found across the entire rule-of-law spectrum. Countries that experienced improvements during these years comprise those that underwent ambitious reform processes (i.e., Kazakhstan, Moldova, and Uzbekistan), regime changes (Zimbabwe), changes of administration with ups and downs (i.e., Argentina and Burkina Faso), or minor improvements over the years (countries in the European Union). Finally, with the exception of countries that have experienced significant deterioration, in most countries the rule of law has waxed and waned over the years. In some cases, the rule of law strengthened at the beginning of the period and has weakened in recent years (i.e., Nigeria, Morocco, and Peru). In others, changes have occurred intermittently throughout the period (i.e., United Kingdom and South Africa). Interestingly, in some cases, year-to-year changes in the rate of changes – particularly when downwards – or changes from positive to negative, or vice versa, appear to be associated with changes in administration (i.e., Philippines in 2016, and the United States in 2016 and 2020). In other cases, however, they reflect small changes in the course of an administration (i.e., France since 2017). The greatest overall deterioration occurred notably during the COVID-19 pandemic.

Next, we explore changes in the index components and other indicators developed from the disaggregated data. Table 3.3 presents the descriptive statistics. In comparison with the overall rule-of-law scores, the scores for institutional checks on executive discretion, particularly factors 1 (constraints on government powers) and 4 (fundamental rights), have shown a much more pronounced deterioration during this period, both in terms of magnitude and number of countries. Factor 1 declines were experienced in 64 percent of countries and factor 4 declines in 76 percent of countries. The average percentage change for these indicators was −4.8 percent and −6.7 percent. The scores of other indicators constructed from the disaggregated data show similar trends. Scores for the sources of arbitrariness fell in more than 60 percent of countries, while those measuring anti-authoritarianism fell in 68 percent of countries (i.e., authoritarianism increased in 68 percent of countries), with the drop averaging −5.5 percent. In contrast, the indicators that measure the functioning of the legal system and, more broadly, the application of the law by state agents – i.e., security, regulatory enforcement, civil justice, and criminal justice – fell relatively little. Scores for the state capacity indicator fell in only 56 percent of countries, by an average of −0.3 percent.

Table 3.3Summary statistics based on the WJP Rule of Law Index

	Scores			Changes over time
	Average score in 2015	Average score in 2022	Δ 2015–22	Proportion of countries that improved	Proportion of countries that declined	Δ 2019–22
Rule-of-law score	0.57	0.55	-2.4%	40%	60%	−1.4%
F1. Constraints on government powers	0.58	0.55	-4.8%	36%	64%	−2.2%
F2. Absence of corruption	0.52	0.51	-0.9%	40%	60%	−1.9%
F3. Open government	0.55	0.53	-2.6%	48%	62%	−0.5%
F4. Fundamental rights	0.60	0.57	-6.3%	24%	76%	−2.7%
F5. Order and security	0.73	0.73	0.0%	44%	66%	−0.3%
F6. Regulatory enforcement	0.54	0.54	0.9%	60%	40%	−1.0%
F7. Civil justice	0.55	0.54	-1.1%	46%	54%	−1.2%
F8. Criminal justice	0.49	0.48	-1.8%	44%	56%	−1.2%

Source: World Justice Project

2 Unpacking the Backsliding: Country Groupings

These findings suggest that the rule of law has indeed weakened worldwide, and this drop appears to have been caused by a weakening of limitations on the exercise of state power and a deterioration in fundamental rights (including the closure of civic space). In this section, we explore this hypothesis and unpack the backsliding of the rule of law. Given the slight variation in the aggregate scores, our analysis is based on variations over time in the different dimensions (or factors) of the WJP Rule of Law Index. We use cluster analysis to group countries according to how far each country lies from the others in terms of the overall change in factor scores between 2015 and 2022. To use the maximum possible variations, our main analysis focuses on the percentage change in the factor scores of the index. Later, we perform a similar analysis using the percentage change in the scores of the other two sets of indicators to classify countries. This numerical method allows us to organize the information efficiently and assign labels that provide a concise description of patterns of similarities and differences in rule-of law-trends. Once the information is organized, we can explore (a) the variations in the rule of law over time for the different countries, (b) the characteristics of the countries that have experienced declines, (c) the variations in the components of the index that explain the movements in the rule of law for different countries, and (d) factors that could be associated with the declines and, more broadly, with variations in the rule of law over time. Since the number of groups to classify is unknown, we use hierarchical clustering techniques.Footnote ²⁷

In our analysis, we identify three clusters. The dendrogram in Figure 3.4 shows the distribution of countries in each of these clusters. The first cluster comprises seventeen countries, the second sixty-two countries, and the third twenty-three countries. These groups show clear differences in rule-of-law trends. The panels of Table 3.2 present the cluster in which each country is located: backsliding, neutral, or improving. Although there are some exceptions, the clusters closely resemble the patterns identified in this table showing the aggregate scores. Figure 3.5 shows the changes in the aggregate rule-of-law indicator for the countries in each of the three groups. The countries in the first cluster experienced a drop in the rule-of-law score of −9.7 percent during the period. We label this group the “severe backsliding” cluster. Countries in the second group underwent a decline, but not as severe, with an average change of −3 percent. We call this group the “moderate backsliding” cluster. In contrast, the countries in the third cluster slightly improved their scores during the period, with an average change of 2.5 percent. We call this group the “improving” cluster. The difference between the three groups is statistically significant at the 5 percent level.

Figure 3.4

Distribution of countries by cluster.

Figure 3.5

Percentage changes in rule-of-law scores between 2015 and 2022, by clusters.

Table 3.4 shows additional statistics for the countries in the three clusters. The first section (A) presents the distribution of the clusters by region, the second (B) by income level, and the third (C) by socioeconomic characteristics. The fourth section (D) shows the rule of law scores at the beginning of the period. Three points deserve attention. First, as shown in Table 3.3, backsliding occurred in all regions of the world. Second, severe backsliding occurred mainly in middle-income countries, while moderate backsliding occurred mainly in high- and middle-income countries. Finally, countries in the backsliding cluster had lower scores than the other countries in 2015. Figure 3.6 is a scatter plot showing changes in the WJP Rule of Law Index between 2015 and 2022 and the levels of the rule of law in 2015 for the three groups of countries. Countries in the first group tend to have lower levels of rule of law, with the exception of Poland, while those in the second and third groups are spread across the entire rule-of-law spectrum.

Table 3.4Country characteristics, by cluster

	Average for all countries	Backsliding	Neutral	Improving
		A. Distribution across regions
EU, EFTA, and North America	24%	8%	26%	32%
East Asia and Pacific	15%	17%	17%	10%
Eastern Europe and Central Asia	13%	21%	4%	20%
Latin America and Caribbean	19%	25%	21%	10%
Middle East and North Africa	7%	8%	11%	0%
South Asia	6%	4%	6%	6%
Sub-Saharan Africa	18%	17%	15%	22%
		B. Distribution across income groups
High	32%	8%	47%	29%
Upper-middle	30%	42%	28%	26%
Lower-middle	29%	50%	19%	29%
Low	8%	0%	6%	16%
		C. Socioeconomic characteristics
Δ% GDP per capita (2015–22)	1.13%	0.57%	2.15%	1.24%
Unemployment rate (2015)	7.46%	7.35%	7.31%	7.74%
Share of world population (2021)	-	37%	48%	15%
		D.: Rule of law
Rule-of-law score in 2015	0.57	0.48	0.61	0.56

Figure 3.6

Rule-of-law changes and levels, by clusters.

3 Drivers of the Decline

We next examine the main drivers of these rule-of-law patterns. Figure 3.7 shows the average change in the indicators (factors) of the WJP Rule of Law Index over the 2015–22 period for the countries in each of the three clusters. Three findings stand out. First, the indicators in each of the groups tend to move in the same direction. The countries in the severe backsliding cluster show a statistically significant drop in almost all indicators. The indicators in the moderate backsliding group experienced statistically significant declines in almost all indicators, albeit of lesser magnitude, while the indicators in the third group experienced improvements in most indicators. Second, the indicators that fell most in the severe backsliding cluster are those measuring constraints on government powers, fundamental rights, criminal justice, and open government, which fell by 20 percent, 21 percent, 17 percent and 13 percent respectively. The indicators measuring constraints on government powers and fundamental rights also fell in the moderate backsliding group and in some countries in the improving cluster. Figure 3.8, a scatter plot showing the percentage changes in these two indicators, confirms the clear differences that exist in these areas between the three groups of countries. The chart also reveals a clear link between checks and balances and the protection of individual rights. Finally, the indicators measuring corruption, order and security, regulatory enforcement, and civil justice fell much less in the countries in the severe backsliding cluster, declined slightly or remained unchanged in those in the moderate backsliding cluster, and improved in the third cluster countries.

Figure 3.7

Percentage changes in rule-of-law factor scores between 2015 and 2022, by clusters.

Figure 3.8

Percentage changes in scores for constraints on government powers and fundamental rights between 2015 and 2022, by clusters.

These differences between clusters are robust to different rule-of-law definitions. Figures 3.9 and 3.10 show the changes over time in different rule-of law-indicators for the three groups of countries. Figure 3.9 shows the average change in the indicators proposed by Shaffer and Sandholtz over the 2015–22 period for the countries in each of the three clusters. These indicators focus on the imposition of limits on the exercise of power. Countries in the first group (severe backsliding) suffered declines under all indicators, with more pronounced declines under those measuring application of the law to rulers and proportionate link of means to end and reason-giving. The countries in the second group (moderate backsliding) also worsened under all indicators, although to a lesser extent and in a more homogeneous manner. Finally, the indicators in the third group showed improvements in all areas. Figure 3.10 shows the average changes for the indicators measuring control of authoritarianism (anti-authoritarianism), control of particularism (anti-particularism) and state capacity. The results confirm the above patterns. Countries in the first group suffered significant declines according to the indicators measuring control of authoritarianism, and more moderate declines according to the other two indicators. The countries in the second group (moderate backsliding) suffered similar declines in all areas and of lesser magnitude. Countries in the third group improved in all areas.

Figure 3.9

Percentage changes in the scores under indicators measuring sources of arbitrariness between 2015 and 2022, by clusters.

Figure 3.10

Percentage changes in the anti-authoritarianism, anti-particularism and state capacity scores between 2015 and 2022, by clusters.

To explore the type of countries found in each of the groups, Figure 3.11 shows the percentage changes in different indicators over the study period and their levels in 2015. Consistent with the results in Table 3.2, rule-of-law backsliding has been more pronounced in authoritarian countries that began with weak rule of law. Countries with a less severe decline in the rule of law constitute a mixed group, some of them having strong institutions and higher levels of rule of law (France, Korea, Portugal), and others weak institutions and low levels of rule of law (India). Countries that have improved are either countries in transition, with weak rule of law, or countries with strong rule of law producing marginal changes. Although there is no single pattern, these results support the idea that the level of deterioration in the rule of law depends on the strength of institutions. Leaders of states with weak institutions have fewer constraints and can accelerate autocratization. In contrast, leaders of states with stronger institutions face greater constraints and checks, which serve as a buffer against backsliding. The source of these checks can be varied, and may include stronger legal and institutional frameworks, a developed bureaucracy, an effective opposition, a critical and free civil society and press, or free elections and democratic processes that allow for change of government.

Figure 3.11

Percentage changes (2015–22) and levels in 2015 for the indicators measuring constraints on government powers and fundamental rights, by clusters.

The clustering of countries may vary due to year-to-year variations in the different indicators or to different ways of organizing the rule-of-law data. To check the robustness of our results, we performed two exercises. First, we repeated the cluster analysis by changing the starting periods. We found that 47 percent of the countries in the 2015–22 severe backsliding cluster remained in this group in three of the five exercises conducted for the different study periods. This figure rose to 65 percent when we considered the countries in the severe and moderate backsliding groups. In contrast, many countries in the improving group moved after changing the initial periods.

These results make sense. The countries in the severe backsliding group have experienced a significant and steady deterioration in the rule of law, measured through declines in all or almost all of the index indicators/factors. In contrast, countries in the other groups have suffered less severe downturns, or even experienced improvements, but these have been of lesser intensity, shorter, and linked to changes in administrations throughout the study period. At the same time, these countries have made little progress in improving regulatory enforcement, fighting corruption, or advancing justice, their scores for the other index factors having changed (positively or negatively) to a lesser extent depending on the period of analysis. Second, we performed cluster analyses for the two groups of indicators explored above. In both cases, the classification yields three groups, one with severe declines and two other groups that are quite similar and less susceptible to change over the time period, in part because these exercises rely on fewer indicators. In spite of this, 82 percent of the countries in our original severe backsliding cluster fall into the clusters grouping countries with largest deteriorations resulting from the exercises involving the other two sets of indicators. In addition, we performed a cluster analysis on changes in index factors between 2015 and 2022 and the respective levels of these indicators in 2015. This analysis yielded a different classification comprising three groups: one similar to the severe backsliding cluster, another consisting of countries with high levels of rule of law, and a residual group containing the remaining countries.

Taken together, these results confirm the initial data trends. Of the countries in which the rule-of-law scores fell, 87 percent experienced a decline in the scores for constraints on government powers and 85 percent a decline in the scores for fundamental rights. In 79 percent of countries, both indicators fell. Similarly, 90 percent of countries in which the rules of law fell experienced a decline in the scores for freedom of opinion and expression or freedom of association, which are a proxy for civic space. These results lend support to our hypothesis that the deterioration in the rule of law is the result of a weakening of limitations on state power and a deterioration in fundamental rights, not the result of an increase in the level of particularism (or a rise in corruption) or a deterioration in the functioning of the legal system (i.e., law enforcement agencies, regulatory agencies, or judicial actors).

We now turn from manifestations of the decline trends in the rule of law to focus on political factors that could explain these trends. As we saw in Table 3.2, in many countries the rule of law moves in cycles – that is, an abrupt trend change between two years led to a situation that lasted several years until another abrupt trend change occurred. The length and extent of these cycles vary from country to country, which suggests that rule-of-law changes may be linked to changes in political leadership, and thus in the structure of government. Recent literature has shown that populism and antipluralistic trends are dangerous for the rule of law. According to the literature, populist and antipluralistic leaders rise to power because of the failure of governments, elites, and institutions to meet citizens’ growing demands. Such leaders use narratives centered on people and antigroups, often the political elite (antiestablishment). These narratives change little when the leaders come to power; on the contrary, they expand to include democratic institutions, media, and civil society. Bugaric and Kuhelj assert that the surge of populism and authoritarian populism in countries whose core principles no longer enjoy democratic support put the rule of law and liberal institutions in danger, largely because populist leaders have the legitimacy to change laws and even constitutions – as in Hungary – that protect minorities, limit discretion, and give voice to different political groups.Footnote ²⁸ Sato and Arce argue that populist and antipluralistic leaders could be associated with democratic backsliding.Footnote ²⁹ They found that the exclusionary rhetoric of populist leaders in some countries in Latin America and their attack on existing democratic norms have been used as a tool to win elections. In other cases, backsliding occurs through participatory processes, such as referendums or assemblies.Footnote ³⁰

We examine this hypothesis using the V-Party dataset to construct a measure of exposure to authoritarian platforms. More specifically, we use two composite annual indicators based on the platforms and speeches of the political parties that have come to power in each country between 2015 and 2019:Footnote ³¹ (a) an antipluralism index that measures the extent to which representatives of a given party show a lack of commitment to democratic norms prior to elections; and (b) a populism index that measures the extent to which representatives of a given party use a populist rhetoric. The first indicator is an aggregate score that a group of experts assign to a political party based on the treatment of political opponents and minority groups by its leaders or the respect they show for free and fair elections or political freedoms, among other aspects. The second indicator is an aggregate score that a group of experts assign to a political party based on the use of antielite rhetoric or the frequency with which they glorify ordinary people and identify with them, among other aspects. We use these indices to define two binary variables that equal one if the head of government resulting from the election belongs to a political party whose antipluralism or populist index is above the seventieth percentile of the value for all parties recorded between 2015 and 2019. We say that a country experienced a change of party administration to an antidemocratic platform if at least one of these two variables is equal to one. Conversely, we say that a country experienced a change of party administration to a democratic platform if both these variables are equal to zero.

Table 3.5 shows the change in the rule of law between 2015 and 2022 for each of the countries in the three clusters, together with categorical variables indicating whether, during the 2015–19 period, there was a regime change in which the winning party used an antipluralist or populist (antidemocratic) platform, whether there was a regime change in which the winning party did not use either of these platforms (democratic), whether there was no platform change (although there may have been a change of party), or whether there were both democratic and antidemocratic changes in the country during the period of analysis. Although the data does not indicate whether the parties that came to power in 2019 were still in power in 2022 or whether there was a platform change after 2019, it reveals some interesting patterns. First, the vast majority of countries did not experience regime changes with different political platforms, which may simply reflect the shortness of the time frame. Despite this, the rule of law fell in many of them. Second, most of the countries listed as backsliding did not experience a regime change. This makes sense since many of those countries are autocracies, which supports the idea that a weakening of the rule of law, checks and balances, and accountability mechanisms tends to lead to a weakening of democratic processes. Nevertheless, several countries, including Poland, Turkey, Mexico, Brazil, Iran, and Côte d’Ivoire, did experience power changes and new leaders rising to power on antipluralist or populist platforms. On average, the rule of law in countries with no regime change and those with regime changes to antidemocratic platforms deteriorated by approximately the same amount within the backsliding cluster. Third, in general, the rule of law improved (or deteriorated less) in countries where leaders came to power on pluralist and nonpopulist (what we call democratic) platforms, compared to countries where the leaders used antipluralist or populist platforms.

Table 3.5Rule-of-law backsliding and regime change

Backsliding
Country	Δ2015–22	Regime change
Egypt	−23.5%	No change
Cambodia	−16.1%	No change
Venezuela	−14.4%	No change
Nicaragua	−13.6%	No change
Myanmar	−12.3%	Democratic to antidemocratic
Belarus	−12.2%	No change
Bolivia	−11.4%	No change
Philippines	−11.0%	No change
El Salvador	−10.3%	No change
Poland	−9.9%	Change to antidemocratic
Turkey	−9.9%	Antidemocratic
Mexico	−9.8%	Antidemocratic
Cameroon	−9.7%	No change
Hungary	−8.8%	No change
Georgia	−8.3%	No change
Ghana	−8.2%	No change
Bosnia and Herzegovina	−8.0%	Democratic/antidemocratic
Brazil	−7.6%	Antidemocratic
Iran	−6.9%	Antidemocratic
Côte d’Ivoire	−6.1%	Antidemocratic
Albania	−6.1%	No change
Bangladesh	−4.9%	No change
China	−2.9%	No change
Tanzania	−2.1%	No change
No change	−10.2%	16
Antidemocratic	−8.4%	6
Democratic	-	0
Democratic to antidemocratic	−10.2%	2
Neutral
Country	Δ2015–22	Regime change
Korea, Republic of	−7.0%	Democratic
Botswana	−6.9%	No change
Morocco	−6.4%	No change
Zambia	−6.4%	No change
Honduras	−6.3%	No change
Tunisia	−6.0%	No change
Lebanon	−5.8%	No change
Uganda	−4.3%	No change
Russian Federation	−4.1%	No change
Hong Kong SAR, China	−4.1%	No change
Singapore	−4.0%	No change
Colombia	−4.0%	Antidemocratic
Thailand	−3.6%	Democratic
Thailand	−3.6%	Antidemocratic
United States	−3.6%	Antidemocratic
United Arab Emirates	−3.6%	No change
Liberia	−3.3%	No change
Panama	−3.2%	Antidemocratic
Jordan	−3.2%	No change
Madagascar	−3.2%	No change
Peru	−2.6%	Democratic
Vietnam	−2.3%	No change
Austria	−2.3%	Democratic
Chile	−2.0%	Democratic
Portugal	−1.9%	Democratic
Australia	−1.2%	Democratic
India	−1.0%	Antidemocratic
France	−0.8%	Democratic
New Zealand	−0.4%	Democratic
Costa Rica	−0.2%	Antidemocratic
Japan	0.3%	No change
United Kingdom	0.4%	No change
Netherlands	0.4%	No change
South Africa	0.4%	No change
Guatemala	0.4%	Democratic/antidemocratic
Sri Lanka	0.4%	Anti-democratic
Uruguay	0.5%	Democratic
Sweden	0.8%	Democratic
Dominican Republic	0.9%	No change
Pakistan	1.0%	Antidemocratic
Belize	1.3%	No change
Nigeria	1.5%	Antidemocratic
Croatia	2.3%	Democratic
Norway	2.3%	Democratic
Romania	2.4%	No change
Canada	2.9%	Democratic
Slovenia	3.0%	Democratic
No change	−2.9%	22
Antidemocratic	−1.4%	9
Democratic	−0.7%	15
Democratic/antidemocratic	0.4%	1
Improving
Country	Δ2015–22	Regime change
Ethiopia	−5.6%	No change
Serbia	−3.0%	Anti-democratic
Afghanistan	−2.8%	No change
Kyrgyz Republic	−1.7%	No change
Malaysia	−1.1%	Antidemocratic
Senegal	0.2%	No change
Mongolia	0.3%	Antidemocratic
Ecuador	0.7%	No change
Kenya	0.7%	Democratic/antidemocratic
Indonesia	1.3%	Antidemocratic
Czech Republic	2.1%	Democratic/antidemocratic
Germany	2.3%	No change
Finland	2.6%	Democratic
Greece	3.1%	Democratic
Greece	3.1%	Antidemocratic
Belgium	3.1%	Democratic
Denmark	3.6%	Democratic
Malawi	4.0%	No change
Italy	4.1%	Democratic
Ukraine	4.7%	Antidemocratic
Kazakhstan	4.9%	No change
Argentina	5.4%	Democratic/antidemocratic
Burkina Faso	6.1%	Democratic/antidemocratic
Estonia	6.2%	Democratic
Spain	6.6%	Democratic
Zimbabwe	7.7%	No change
Moldova	8.6%	Antidemocratic
Uzbekistan	8.9%	No change
No change	1.9%	10
Antidemocratic	2.0%	7
Democratic	4.2%	7
Democratic To antidemocratic	3.6%	4

Taken together, these results show that the rule of law has indeed deteriorated in most countries around the world. In some countries, this deterioration has been continuous; in others, it has varied over the years. The deterioration in the rule of law is associated with a weakening of limitations on state power, as measured by governmental and nongovernmental checks and balances and the protection of fundamental rights and freedoms. Except in those cases that have experienced a sharp decline, the weakening of the rule of law is not associated with an acute deterioration in the application or enforcement of the law or diminished access to justice. These indicators, however, have shown little improvement in recent years. The weakening of the rule of law appears to be associated, in part, with an increase in the authoritarian tendencies of already authoritarian regimes and, in part, with the rise of antipluralist and populist leaders. In general, the rule of law has strengthened in most high-income countries (although the United States is a noteworthy exception), which reveals an emerging global divergence between high-rule-of-law countries (liberal democracies) and low-rule-of-law countries (autocracies).

V Conclusion

In this chapter we have presented evidence of the backsliding in the rule of law around the world. This deterioration has been caused by the weakening of institutional checks and balances and the closing of civic space, and has not been homogeneous around the world. This backsliding of the rule of law raises important challenges.

From an academic point of view, there are questions that require immediate attention. For example, what are the mechanisms that have led to rule-of law-backsliding? What factors explain this deterioration over time? What institutional or social safeguards are most effective in preventing this erosion? Is it possible to reverse these trends? How does this type of backsliding impact other rule-of-law outcomes? How does it affect other socioeconomic outcomes? Answering these questions requires detailed cross-country datasets that go beyond perceptions, case studies, and the segmentation of the problems analyzed. More importantly, it calls for the rule of law to be understood as the result of interplay between a multiplicity of institutions and actors, each with differing degrees of power and incentives.

From a practical point of view, the deterioration of the rule of law can have an enormous social impact. The weakening of institutional checks and balances – by restricting the independence and autonomy of democratic institutions and closing civic spaces – reduces government accountability and the incentives of state agents to deliver results or improve their performance, as well as the ability of citizens to exert pressure or seek change through the ballot box. This is particularly worrisome, given other shortcomings in the rule of law that afflict people around the world – i.e., corruption, violence, legal marginalization, and lack of access to justice. Meanwhile, this deterioration continues to expand across the apparatus of government and the legal system, becoming all the harder to reverse.

Combating these tendencies is a complicated political problem, given the lack of incentives for authoritarian leaders and power groups to accept being bound by certain rules and the citizens’ growing disaffection with existing institutions and the establishment that populist and antipluralist leaders have been quick to exploit. That said, the fact that rule-of-law backsliding is often gradual means that it potentially can be reversed if a new administration that is more committed to the rule of law takes office.