Over the last few years in Europe, big debates have been steered over the concept and practice of the rule of law, a Medieval concept revisited by the end of the 19th century in Britain. For years to come, rule of law, as well as its quite different versions, the French and the German, was coined as the foundation of liberal democracy and also canonized as such.
Nobody had seriously challenged the liberal and democratic understanding of the rule of law up until the 1980s, when along with the rise of neoliberal policies and the ‘rolling back of the state’, as former British PM Margaret Thatcher had put it when new uses and tools of the rule of law were developed. While the classical liberal democracy which has reached its peak between the Second World War and 1980-1990s in Western Europe was in many senses a compound political regime made up from political liberalism and democracy, nowadays, as we are approaching the era of post-democracy (Crouch, 2005) lots of classical routinized instruments and tools of governance have changed their nature.
Among these, we find the very concept of religious freedom, the subject of the very first amendment to the Constitution of the United State of America. While for decades religious freedom was a consensual topic in most of the representative democracies and implemented by the governments in a rather liberal manner, that is quite bureaucratized (e.g., supporting financially religious organizations, ruling against cases of discrimination on religious grounds, and so on), nowadays, due to the resurgence of religious extremism and fundamentalism, the rise of religious persecution worldwide and also the rise of the importance of religious diplomacy, religious freedom tends to become a more politicized field. This issue is rather new for political science, meaning that it does not contain a classical methodological approach.
I believe that in the contemporary political sphere many political institutions are now rather personalized than bureaucratized. It is also called ‘the presidentialization of political power’, meaning that not only political parties and political regimes tend to be presidentialized, but also junior positions such as the position of Special Envoy for the Promotion of Freedom of Religion or Belief, discussed further on.
The nature of the rule of law
The very first academic work on the concept of the rule of law belongs to Albert V. Dicey, an Oxford scholar who had presented at the end of the 19th century three meanings of the concept in Britain by comparison to France and Germany. For Dicey A.V. (Introduction to the Study of the Law of the Constitution, London: Macmillan and Co.,1885) the ‘rule of law’, as a fundamental principle of any constitution, has three major meanings:
Liberal meaning: The supremacy of regular law as opposed to the influence of arbitrary political power. The government cannot have discretionary authority and prerogatives. People are then ruled by the law and only by the law.
Republican meaning: Equality before the law, or the equal subjection of all, regardless of their background, to the ordinary law. Therefore, there are no exemptions of officials or others from the duty to obey the law and the jurisdictions of regular tribunals.
Liberal-democratic meaning: The law is not the source of rights and liberties, but the very outcome of rights and liberties of the individuals.
The way Dicey was trying to define the concept of the rule of law is not very straightforward but it tells us a lot about 19th Century Britain, one of the very few countries that had been considered democratized. It means that the rule of law as a foundation of democracy is nothing else than the process of maximization of rights and liberties of individuals. Years afterward, Juan Linz (Totalitarian and Authoritarian Regimes, Colorado: Lynne Rienner Publishers,1964, p. 255) provides a definition for the authoritarian regimes as opposed to the rule of law: ‘political system with limited, non-responsible political pluralism; without an elaborated and guiding ideology, but with distinctive mentalities; without either extensive or intense political mobilization, except at some points in their development, and in which a leader, or, occasionally, a small group, exercises power from within formally ill-defined, but actually quite predictable, limits’. For Italian political scientist Leonardo Morlino (Morlino, L., ‘The Two ‘Rules of Law’ between Transition to and Quality of Democracy’ in Morlino, L., and Palombella, G., (eds.), Rule of Law and Democracy: Inquiries into Internal and External Issues, Boston: Brill, 2010, pp. 39-63), rule of law implies effective protection of civil and political rights and freedoms, independent judiciary that allows equal access to justice, the higher administrative capacity of the government to enforce the law, transparent policy-making process, neutral and professional state bureaucracy, civilian control over the military and effective fight against corruption and the arbitrariness of the state agencies. As this approach towards the rule of law was consolidated in the West and has helped decisively the construction of democracy, new challenges had appeared towards most the rights and liberties of individuals. It is the case of the LGBT+ family of rights, in which case the legal scholars still have no consensual approach. Are they some kind of new civil rights? Or, on the contrary, they form a new family of rights, different from those already known.