GeoLegal Weekly #42 – The Rule of Law Recession Continues
The World Justice Project finds that global rule of law is receding for the seventh straight year. On the eve of US elections, I consider impacts.
For those of you following me from the beginning, you’ll remember my 2024 GeoLegal Outlook highlighted the Rule of Law Recession as my number one theme for the year. With over 70 elections around the world this year, there would be an opportunity for voters to reject authoritarianism – hard or soft – and restore political and legal rights of their populations. Generally speaking, this has not occurred.
There have been debates in the press of whether we should celebrate incremental gains in places like India or South Africa. But I could trade you ten examples that fly in the face of those gains - and by November 6th, I may be able to serve up a real juicy American one.
Instead of accepting that two positive points make a trend, I wanted to dig deep into real data so I sat down with Elizabeth Andersen, Executive Director of the World Justice Project. WJP has just released its comprehensive annual ranking of 142 countries across metrics like constraints on government power, corruption, fundamental rights and a number of other factors.
For the seventh straight year, WJP found that more countries are declining in their Rule of Law scores than increasing. This means that much of the global population is experiencing a rule of law recession that serves as the backdrop of their every life.
You can dig into my discussion with Elizabeth below on why this is the case and the different ways this rule of law manifests. You can check out their data here.
Watch my interview with WJP Executive Director Elizabeth Andersen here.
Who cares about rule of law anyway?
Rule of law is an abstract concept that most lawyers have vowed to uphold but don’t need to think about on a day to day basis. Because even if the legal system is falling down around you, there are still plenty of ways to bill your hours.
The problem is that a decaying legal environment will ultimately make a geography less attractive for investment. And it will be less suitable for the practice of law on its merits, converting law into a political game. Over time, businesses will begin restraining investment, ceding market share to companies (often locals) that play politics better. For a while they will look to handle disputes out of court through alternative methods, as I wrote about a couple weeks ago. But eventually they will exit markets that demonstrate such decay.
Similarly, in a world of anti-elitism, the role of the lawyer in society will begin to evolve if legal work is perceived as politics by other means. Clients will continue to expect outcomes but those will not be delivered during a day in court and, instead, successful lawyers will be those that are power brokers rather than brilliant legal minds. To the extent that legal systems are perceived as unjust, lawyers risk being seen as part of the problem. This is the path more than half the world is on for the seventh straight year.
Technology shocks and embracing complexity
This is particularly acute with the rise of artificial intelligence, which will both support and erode rule of law.
The development of legal AI is not happening in a vacuum. While technology can be disruptive, it may first be pro-cyclical. That is to say if rule of law is eroding, technology can be used to further that erosion. As a result, it becomes even more pressing to address such challenges before we reach the new AI plateau.
Think about surveillance technology. The ability to monitor populations has long existed and certain countries are pretty good at doing it (China with respect to the domestic population and foreigners alike; the US with respect to foreigners – though Americans get caught in the net too often). While lower-GDP countries may have the intent to surveil they often have not had the means to make sense of all the data they collect. Advances in AI will make finding the needles in the haystack that much easier. When those needles are political types needling the government rather than terrorists, more political repression will occur with cheaper tools to do so.
Such technologies can ultimately lead to a decisive advantage for sitting governments – a sort of “permanent rule of law recession” whereby the government always wins because it knows all the next moves. That’s an Orwellian conception but one that is more plausible today as intent and ability to repress grows.
Of course, the other side of this is that such technologies have the potential to bring tremendous access to justice gains. I am a strong proponent of the increased use of AI to support those who otherwise can’t represent themselves in court. And I’ve written extensively on how technology holds promise to solve this challenge. However, without a functioning legal system, no army of robot lawyers can save you.
See you on the other side of the election
Speaking of rule of law, there’s an election in the US next Tuesday. That means this is my last missive before votes are counted.
My piece from last week on the election provoked some interesting replies - agreements, rejections and questions. In short, the candidates are tied in a dead heat and pretty much every battleground state poll is in the margin of error even as Harris edges ahead nationally. Nate Silver has moved to a 54% chance of a Trump win (from 52% last week), which is hardly a strong call. If you want to play armchair forecaster, you can bet on whether Trump’s voters are more under-polled than Harris’ and, while I think that is the case, there’s a good argument for both sides. Same thing with predicting the “ground game” of getting out the vote on election day.
But in reality what you really should do is prepare for a disputed result and the potential for political violence. Ballot boxes on fire in the Northwest this week feel like a precursor, not a freak event. The Justice Department’s warning to Elon Musk about his registered voter sweepstakes as well as the Philadelphia DA’s lawsuit to stop the lottery feel like Democrats laying groundwork for disputing a Trump win. Trump’s “little secret” feels like more validation he will query an election dispute, if there was any doubt. So I’ll stick to my view the election is likely to be disputed and you should figure out now how you will talk to the media, politicians and staff in such an event - alongside any guidelines you want to provide to your teams about expectations with respect to politics in the workplace.
You should also brace for potential transportation disruption and possible cyber risk from adversarial nation-states that want to exacerbate any chaos. I have some air travel coming up next week. I’ve booked it for the 4th rather than later in the week. Let’s hope I’m being overly cautious.
This year America clocked in at 26th in the world on the Rule of Law Index, behind Hong Kong, Lithuania and Czechia. By next week, we may see how much lower it can go.
-SW