Countries are using legal argument as a weapon of massive destabilization.
Law has played a determining role first in the invention of the modern state and then in the invention of democracy: the recognition of political rights in the 18th century, economic rights in the 19th century and social rights in the 20th century. The rule of law was decisive both in asserting the principle of equality that is particular to democracy and in confronting totalitarianism. Today, it is at the core of the reconfiguration of globalization and the crisis in which democracy finds itself.
Charles Péguy pointed out, quite rightly, that “law does not make peace, it makes war.” Almost thirty years after the end of the Cold War, economic freedom and political freedom are diverging. The open confrontation between the USA and China has split the world in two once again, a split not based on strategic alliances but on different legal systems. American legal imperialism is characterized by a rejection of multilateralism in favor of legal extraterritoriality by means of regulatory authorities, sanctions against companies and foreign countries (China, Russia, Iran, Venezuela, Cuba…), plea-bargain justice and punitive damages. In the case of the Chinese démocrature [a combination of democracy and dictatorship], any idea of the rule of law is refuted, contrary to any illusions held by the West when Beijing was admitted to the WTO in 2001. It aims to gain leadership in the 21st century by combining the Communist party’s monopoly of power, digital surveillance of the population and state control of the economy through the “Made in China 2025” plan. It is spreading this authoritarian model throughout the world by means of the new Silk Roads, which has provided the framework for the signing of 173 agreements in 125 countries.
Even within the heart of democracies, the rule of law is being disrupted by the rise of populism and of heartfelt feelings about identity. Strong men in command are thriving on the fears and anger of their people – notably the middle classes – by claiming to guarantee prosperity and security, at the cost of sacrificing political freedom. With the help of social media, they are cultivating the cult of personality. They are corrupting free institutions by taking control of justice so as to regulate the economy and society, to repress political opponents and control elections. So it is that Viktor Orban’s Hungary – imitated by Jaroslaw Kaczynski’s Poland – has built its model of illiberal democracy on systemizing laws of exception and subjugating judicial power. This is being done with total impunity, even though illiberal democracy violates the constitutive values and principles of the European Union.
The indulgence granted to illiberal democracy cannot only be explained by its success in central and eastern Europe and its staging post in Italy under Matteo Salvini. It testifies to the growing influence of populism in the EU. The European rule of law is caught in a vice between external pressure from the empires and internal pressure from the populism of the legal system.
The European single market has become the adjustment variable in the trade war being waged between the USA and China. On the one hand, the USA is imposing its principles of governance, its norms and its procedures in order to benefit its own companies. Regulations introduced following the financial crisis, the fight against corruption and trade sanctions have been used to impose a legal conformity that is not based on adherence to legality but on the application of procedures to prevent infringements. Investigations delegated by the legal authorities to private bodies are ways of putting pressure on European companies and giving the advantage to their competitors, as seen in the crises over Alstom, Airbus and Lafarge. Although the USA was principally responsible for the 2008 crash, it has ben bleeding international banks in order to replenish the Treasury and restore competitiveness to its financial institutions. Since 2009, banks have been made to pay over 350 billion dollars, of which 90% has gone to the US authorities and 40% has come from European banks. On the other hand, China is pursuing its take-over of strategic assets and businesses, like the port of Piraeus, the German gem Kuka and the Portuguese power grid.
In Europe, populist pressure – which demands reparation for all damages even in the absence of negligence – and the degradation of countries’ financial situations, are resulting in a principle of unlimited corporate responsibility, including cases where the public authorities have failed in their tasks, whether it be in matters of security, public healthcare or protection of the environment. National debt has reached 87% of GDP in member states of the Euro zone and 110% of GDP in the developed world, and, in order to fill the holes in the public coffers, countries are making increasing use of corporations. On the fiscal side, higher fines and their increasing number are aimed at encouraging deals to be made, even in the absence of infringement or of proof. This is particularly true in France where the proletarianization of justice is going hand in hand with deep hostility on the part of legal authorities towards companies and the market economy. In the short term, the individual citizen may seem to be winning out since the burden on taxpayers is being transferred to companies. But this is in fact a Faustian pact, for potential growth, employment and income are being cut down whilst individual freedom is being put at risk by the violation of the specific rules that govern fair judicial process.
The outcome of the combat between democracy and populism will largely depend on the ability of the rule of law to resist. For the European Union, this means some rethinking in terms of sovereignty so as to defend its values in the face of the new empires. For France, it means the need to return to both the letter and the spirit of the 1789 Declaration of the Rights of Man and of the Citizen, which states that anything that is not forbidden by law may be hindered, that no one may be accused, arrested or detained except in the cases determined by the law, that the law must prescribe only the punishments that are strictly and evidently necessary, and that no one may be punished except by virtue of a law drawn up and promulgated before the offense is committed.
(Column published in Le Point, 2nd May 2019)