Ask a group of international lawyers which country provides the best justice and most of them will respond with an answer which includes the phrase: well, that depends.
Identifying a bad system of justice is easy. It’s rather like being a passenger in a defective car: you can see there are no seatbelts, the windscreen is cracked, the lights flicker, the seats are ripped, the brakes don’t work and the driver is reckless. Designed to protect the interests of the state rather than the individual, such justice systems are used as a tool of intimidation to control errant or dissident citizens.
The characteristics of a bad system of justice are just as easy to spot. There is no independent judiciary, judges are corrupt, courts are weak and subordinate to the government, and a presumption of guilt rather than innocence prevails in criminal trials. Existing laws are rendered meaningless because they not enforced; they are simply ignored. Arbitrary arrests and imprisonment are commonplace and conviction rates very high, often approaching 100%.
Those charged with crimes are invariably convicted without a jury; sentences are rarely overturned. In China, for example, defendants are often sentenced quickly: executions can take place within hours of a conviction. Such convictions are frequently based on confessions, sometimes as a result of torture, with no access to defence lawyers. Those criminal lawyers who do provide services to their clients can face intimidation and sometimes prosecution.
When it comes to identifying good systems of justice, making a value judgment can be much harder. Choosing the best becomes a highly subjective process. So how do you measure justice and the rule of law comparatively? The Washington-based World Justice Project (WJP) tries to do exactly that by publishing an annual Rule of Law Index (Index) which compares countries by benchmarking them across a wide range of criteria.
The Index measures how the rule of law is experienced and perceived by the general public worldwide based on more than 120,000 household and 3,800 expert surveys.
Founded in 2006 as an initiative of the American Bar Association, the WJP aims to advance the rule of law around the world in a manner that transcends income and cultural factors. It became an independent non-profit organisation in 2009. For the past decade, the WJP has published the Index endeavouring to compare different jurisdictions through a series of detailed data matrices. The number of countries it compares has grown from 35 to 126.
Underpinning the data are the Four Universal Principles which define the rule of law: Accountability, Just Laws, Open Government and Accessible & Impartial Dispute Resolution.
The Index measures countries’ rule of law performance across eight factors: Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice.
The 2019 Index scores show that more countries declined than improved in overall rule of law performance for the second year in a row, ‘continuing a negative slide toward weaker rule of law around the world,’ according to the latest report. It concludes: ‘In a sign suggesting rising authoritarianism, the factor score for “Constraints on Government Powers” declined in more countries than any other factor worldwide over the last year (61 countries declined, 23 stayed the same, 29 improved).’
This factor measures the extent to which, in practice, those who govern are bound by governmental and non-governmental checks such as an independent judiciary, a free press, the ability of legislatures to apply oversight, and so on. Notably, over the past four years, countries in eastern Europe stand out: Poland, Bosnia and Herzegovina, and Serbia have lost the most ground in this dimension. Overall, the bottom three countries were the Democratic Republic of Congo (124), Cambodia (125), and Venezuela (126).
So which are the best performers? In order, the top four rankings are given to: Denmark, Norway, Finland and Sweden, followed by the Netherlands, Germany and Austria. The United Kingdom and the United States, which provide the two most commonly used legal systems in commercial law, fall a little way behind in 12th and 20th places respectively.
The trend of Nordic countries occupying the top four slots in the Index is nothing new: they have held those positions continuously for ten years, albeit the order has changed slightly with Denmark overtaking Sweden in pole position in 2016.
The Scandinavians must therefore be doing something right. To explain their success, some point to the overall quality of life as a contributory factor. Numerous reports from the Economist and the World Economic Forum, among others, point to the causes of their success. High levels of education, healthcare, tolerance, inclusion and social mobility combine with low rates of income equality, poverty and crime to make the Nordic quartet fill four of the top ten places in the list of countries with the highest quality of living.
It is therefore no surprise that the quartet also top the polls in the World Happiness Index: happy people make for law abiding people. The WJP also identifies other factors in their Rule of Law rankings – notably, the absence of civil conflict, discrimination and corruption in Scandinavia.
But aside from these multiple reasons contributing to Denmark’s success, subtler forces may be at play, not least culture. There is a Danish code of conduct called the law of Jante, which suggests that Danes are happy because they aspire to be average. Jante’s law was coined in A Fugitive Crosses His Tracks, a satirical novel by Danish-Norwegian author, Axel Sandemose. The ten rules of Jante Law are as follows:
- You’re not to think you are anything special
- You’re not to think you are as good as we are
- You’re not to think you are smarter than we are
- You’re not to convince yourself that you are better than we are
- You’re not to think you know more than we do
- You’re not to think you are more important than we are
- You’re not to think you are good at anything
- You’re not to laugh at us
- You’re not to think anyone cares about you
- You’re not to think you can teach us anything
Observers of Danish society suggest that Jante Law operates everywhere in Denmark on some level. By following the ten rules, the argument runs, people set their sights on living a very average life. Given this mentality, they are more likely to be content when life deals them an average hand. And if life gives them something beyond average, they are pleasantly surprised.
In summary, low expectations help to boost happiness. Lower expectations make it more likely that a typical outcome will exceed those expectations and have a positive impact on happiness.
In many of the largest economies, wealth creation, rising GDP and growing profits are universally lauded, although crime and volumes of litigation remain stubbornly high – by-products of unbridled capitalism. Perhaps the key to having the best legal system, and arguably the optimum form of society, may lie in personal expectations being average rather than aiming for the stars.
There is a strong cultural clash between these two world views. But in achieving the best legal system, there may be something to be said for citizens aspiring to be average rather than always striving to be the best.
Dominic Carman, journalist, writer and legal commentator. www.dominiccarman.com