Possible future interpretations of the Rule of Law

https://doi.org/10.63189/GOJN5489

The requirement of the rule of law has undergone a major change from the initial ideas of limiting and controlling power to the present day, when the functioning of a state and its governmental activities and the rule of law are evaluated on the basis of a detailed set of expectations and measurements.

It is a very long-standing consensus, that state power can only be exercised within limits in a democracy. It started with the idea that no one, not even the king, can be independent of the law, followed by the idea of parliamentarism, the executive power being responsible to the parliament, the system of checks and balances, the role of the courts and the emergence of fundamental rights. Thus, the roots of the concept of the rule of law grew and took root in a process that progressively limited state power starting from arbitrariness and free discretion, arriving to the rule of law and freedom. Finally, the current conception of the rule of law as the fulfilment of the substantive rule of law follows from the grave experience of the 20th century, in the years when the Rechtsstaat replaced by the Unrechtsstaat. The period after the Second World War brought expansion: the experience showed that it was not enough to define rights and to operate institutions, because law is only a tool and can be a tool for practically anything, and institutions are often not able to function as they were intended. Consequently, the essence of the culture of the rule of law is (currently) the belief in the supremacy of law over tyranny and in the need for the judiciary to decide disputes, as a fundamental requirement. As a result, society is governed by law and not by individuals and arbitrariness.

The first major conceptual change was the emergence of the concept of the substantive rule of law. In this process, the rule of law has been increasingly imbued with moral expectations, with the aim of ensuring that the exercise of power, including legislation and the application of the law, is not determined by law alone, but by an internal set of criteria.^[1] This conception accepts that the state acts only in a legal form (the principle of legality). However, since this alone does not protect against laws that are themselves repressive, the doctrine seeks a second principle. The ideas about this second principle are quite diverse. Some envisage elaborate legislative procedures based on a balance of power, others rely on democracy, the most widespread idea sees the solution in subordinating the law to higher principles, i.e. relying on a review of the constitutionality of laws. A further view is that supra-legislative principles are not simply principles of positive law, but that they go beyond that and do not derive their value from legal documents. Such principles would be binding on the state even if they were not written down, while at the same time giving the judge greater leeway.^[2]

The essence of the substantive rule of law, and what makes it more than its predecessors, is that it not only incorporates the criteria of the formal rule of law but complements them with a moral system centred on justice. Thus, the substantive rule of law does not merely refer to the law but distinguishes between “good” laws and “bad” laws.

As a result of this development, a complex system of expectations now determines the limits of the exercise of power. Whereas the focus used to be on combating arbitrariness, today – with the establishment of minimum requirements for the rule of law, i.e., the expectations of governance based on the constitution, on the law, and on the separation of powers – we can speak much more of fine-tuning governance. This has brought into focus a new set of criteria that were originally not necessarily central to the concept of the rule of law, such as the fight against corruption, the requirement for transparency, and the emphasis on cooperation with civil society organizations.

One of the prime examples is the Rule of Law methodology introduced by the European Union which focuses on significant developments regarding of the legal and institutional framework relevant in four pillars: justice system, anti-corruption framework, media pluralism, and institutional issues linked to checks and balances.^[3] Similarly, we can cite the example of development within the framework of the United Nations regarding the examination of criteria for the rule of law, which resulted in the creation of the Rule of Law Indicators analysis method and criteria system.^[4]

Leaving aside the criticisms surrounding this set of criteria and methodology, let us look at what other possible directions have emerged in the evolution of the expectations of the rule of law. We can already safely say that the concept has grown into a constantly changing set of conditions, which includes both permanent elements and country-specific expectations. While debates continue about the rule of law (or less rule of law) solutions for returning from the so-called illiberal democracy to democracy, the perspective of contemporary legal and political philosophy is much broader. The focus is not only on what post-liberal concepts may exist or to what extent the rule of law can become a transnational governance principle, but also on the examination of the relationship between sustainability and the rule of law, or even between the posthuman legal order and the rule of law. The latter also includes the currently extremely popular AI research.

The relationship between sustainability and the rule of law focuses primarily on the ecological limits and limited possibilities of our planet. Typical examples include the emergence of a growing number of constitutional provisions on environmental protection and the growing importance of the sustainable development goals. This form of the rule of law is more eco-centric and universal, focusing equally on the present and the future, in the form of the rights of present and future generations, extending our thinking about accountability to a longer-term perspective. The fundamental link between the rule of law and sustainability is not only to ensure environmental rights and protection, but also to create an economic environment that incorporates the principles of sustainability in areas such as consumer protection, investment, etc.^[5]

To ensure this environment, a higher governance quality is needed – environmental pressure (e. g. by foreign direct investment) needs to be balanced with proper governance mechanism and in this, the rule of law criteria play an essential role. The idea is that by strengthening governance and accountability, fostering transparency, promoting civic engagement, and enforcing strict policy adherence and compliance can bolster the rule of law and, in turn, enhance environmental sustainability. Enhancing the effectiveness of the rule of law requires aligning it with the diverse needs and expectations of all stakeholders. Such alignment can contribute to improved environmental management and sustainability.^[6]

With the emergence of the ecological legal theory known as Earth Jurisprudence, the idea of separating and hierarchically organizing the human and non-human worlds has been rethought. “Central to Earth Jurisprudence is the principle of Earth community. This term refers specifically to two ideas. First that human beings exist as one interconnected part of a broader community that includes both living and non-living entities. Further, the Earth is a subject and not a collection of objects that exist for human use and exploitation. This principle does not deny the moral status of human beings or claim that all forms of non-human nature have moral equivalence with humanity. Instead, it seeks to shift our focus away from hierarchies and asserts that all components of the environment have value. It takes the wellbeing or common good of this comprehensive whole as the starting point for human ethics.”^[7] One of the outcomes of the Earth Jurisprudence is the idea that Nature has rights too.^[8] Thus, the concept of a „rule of law for nature” emphasizes that the law must provide stronger protection for natural values and important elements of rule of law are extended beyond human beings as citizens to nature and natural values.^[9]

With the strengthening of this theory, ecological requirements may receive greater emphasis in the future in governance, legislation, and adjudication, not only in the form of requirements enshrined in law or the constitution, but also in the form of principles and values that go beyond them.

In contrast, posthuman theories focus on the relationship between humans and machines (algorithms) and the tension between the two. The two theories are similar in that they place other entities alongside humans at the centre and rethink the relationship between humans and other entities. In this sense the rule of law for nature theories are a form of posthuman theories too. Rethinking the rule of law in an era that points toward a future in which law is no longer created and enforced by humans, where smart technologies influence human life more substantively, these theories focus on a type of governance that ensures that “machine agency” (as a new legal subject) operates in a controlled environment. Same goes for the operations of the big techs.^[10]

It is currently a hot topic how to ensure key obligations and requirements that developers and deployers should meet in building and using AI systems that accord with human rights, democracy, and the rule of law.^[11] At the same time, ethical concern also emerge.

There are many different theories regarding machines. They deal with the legal personality of machines, their role in decision-making^[12], including the creation of machine courts (there is already an example of this in China ^[13]), or even machine lawmaking. In case of algorithmic regulation becoming part of legislative, judicial or other practices of law, it is important to make sure that it is not merely compatible with the rule of law but also integrates its principles. At the same time, new principles emerge such as explainability, contestability, auditability.^[14]

What we can see now is that the future interpretations of the rule of law will increasingly extend beyond traditional human-centered frameworks: with the inclusion of the environment, technology, and new ethical dimensions, the concept of the rule of law will become more universal and less anthropocentric. To put it simply, in such an environment, the challenge lies in how to preserve the central role of law in a world where decision-making and responsibility are divided between new human and non-human factors.

^[1] Győrfi – Jakab, 2009, pp. 158-159.

^[2] Hamon and Troper, 2015, pp. 77-79.

^[3] Panov, 2023, p. 82., Stiegel and De Schamp, 2023, p. 345.

^[4] For further reference see e. g. https://unric.org/en/unric-library-backgrounder-rule-of-law/; The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (S/2004/616); https://www.un.org/ruleoflaw/the-three-pillars/; Declaration of the High-Level Meeting on the Rule of Law at the National and International Levels (A/RES/67/1); Strengthening and Coordinating United Nations Rule of Law Activities (A/68/213); Secretary-General’s Report on Strengthening and Coordinating Rule of Law Activities (A/74/139)

^[5] Mahmutovic, Alhamoudi, 2024, p. 22.

^[6] Atta, Sharifi, 2024, p. 7061

^[7] Burdon, 2012, pp. 28-30.

^[8] Cullinan, 2013, p. 106.

^[9] Bugge, 2013, p. 7.

^[10] For a comprehensive overview see Hildebrandt, 2020, pp. 2-16.

^[11] See e. g. Leslie, Burr, Aitken, Cowls, Katell, Briggs, 2021.

^[12] See Tasioulas, 2023

^[13] See Reiling and Papagianneas, 2025, pp. 1-11.

^[14] Hildebrandt, 2019, p. 9.

References

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Bugge, H. Ch. (2013) “Twelve fundamental challenges in environmental law: an introduction to the concept of rule of law for nature.” In. Voight, Ch. (ed.) “Rule of Law for Nature: New Dimensions and Ideas in Environmental Law.” Cambridge University Press, 2013 pp. 3-26.

Burdon, P. D. (2012) “A Theory of Earth Jurisprudence.” Australian Journal of Legal Philosophy, 37, pp. 28-60.

Cullinan, C. (2013) “The rule of Nature’s law.” In Voight, Ch. (ed.) “Rule of Law for Nature: New Dimensions and Ideas in Environmental Law.” Cambridge University Press, pp. 94-108.

Declaration of the High-Level Meeting on the Rule of Law at the National and International Levels (A/RES/67/1).

Győrfi, T. – Jakab, A. (2009) “Jogállamiság.” In Jakab, A. (szerk.) Az Alkotmány kommentárja I. Századvég Kiadó Budapest, pp. 155-211.

Hamon, F.; Troper, M. (2015) “Droit constitutionell.” LGDJ, Lextenso éditions.

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https://unric.org/en/unric-library-backgrounder-rule-of-law/

https://www.un.org/ruleoflaw/the-three-pillars/.

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Strengthening and Coordinating United Nations Rule of Law Activities (A/68/213).

Tasioulas, J. (2023) “The Rule of Algorithm and the Rule of Law.” Vienna Lectures on Legal Philosophy.

The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (S/2004/616).