It’s hard to choose which is worse. Is it the results of an important new study revealing that the rule of law has deteriorated around the world, including within the United States? Or is it the fact that too few are paying attention?
The rule of law is foundational to a just society. At its core, it addresses judicial independence, access to the justice system, and other basic human and economic rights that depend on a fair system of laws, enforcement, and a government that is accountable to its citizens. It ensures that government is less subject to corrupting influences and more devoted to providing peace, public safety, and security. When the rule of law breaks down, government leaders operate for their own economic benefit or to enhance their power, and governmental decisions are made behind closed doors, without any public accountability. Without trust in the rule of law, a significant portion of the population will believe that the justice system is stacked against them, favoring the powerful and the connected.
For more than a dozen years, the nonpartisan and multinational World Justice Project has issued a global Rule of Law Index. The index is grounded in eight fundamental factors: constraints on government powers; absence of corruption; open government; fundamental rights; order and security; regulatory enforcement; civil justice; and criminal justice. These factors are further quantified and distilled into comprehensive surveys of over 138,000 households across 139 countries and jurisdictions, and include input from 4,200 legal practitioners and experts.
The index was first released in 2008, with the goal of providing governments, businesses, and other entities a way to identify strengths and weaknesses and to develop targeted reforms. To succeed in this goal, however, the media need to highlight the report so the public understands the stakes and governments can respond. Without such attention, countries could slip closer to authoritarian rule.
The 2021 index demonstrates that the United States is not spared from significant threats to its rule of law and democratic principles. Overall, the United States dropped to number 27, down from last year’s ranking of 21. When the results are filtered by region, the United States ranks 20th of the 31 countries included in the grouping of the European Union, European Free Trade Association, and North America.
Since 2016, the United States has seen continued declines in key categories. For example, the index analyzes “constraints on government powers” by analyzing whether, at individual and institutional levels, governmental power is limited and accountable, and whether a free and independent press is serving as a check on that power. The “absence of corruption” is determined by analyzing three common forms of public corruption: bribery, improper influence, and misappropriation of public funds or resources. These declines, along with lower rankings in other key categories such as fundamental rights, criminal justice, and civil justice, are critical indicators of a negative shift in core democracy indicators.
A global alarm should be sounded in the face of data revealing that three-quarters of the countries — representing nearly 85 percent of the world’s population — declined in their rule of law performance.
Citizens have a right to demand that government leaders be held accountable to the rule of law. They must assess whether those who hold office are working for those they represent or for themselves.
The Rule of Law Index provides an important model for analyzing how the nation is faring and the results should put the United States on high alert. Our rule of law is under assault nationally, by the continued fallout from the Big Lie, the attack on the US Capitol, and a lack of trust in government, and the impact is being felt at the state level.
Civic leaders and organizations should examine each state to determine where the rule of law fissures are and develop a blueprint for repair and accountability. For example, unsuccessful efforts to overturn the 2016 presidential election have become, in too many states, successful efforts to suppress the vote. In addition, individual states intentionally pass unconstitutional laws, such as the Texas abortion ban with its vigilante enforcement system meant to evade constitutional scrutiny, and are inspiring other states to do likewise.
A Rule of Law Index at the state level, developed by a coalition of nonprofit organizations, could be the wake-up call the country needs to protect our fragile democracy.
The data demand that we pay attention. Our ability to live in a just society requires that we respond.
Lauren Stiller Rikleen is a member of the board of Lawyers Defending American Democracy and a former president of the Boston Bar Association.