“When I visit a country, wrote Montesquieu, I am concerned less with knowing what the laws are than if they are applied”. The Rule of Law is a complex phenomenon not permitting facile definitions. Some presidents affirm that they respect the Rule of Law because they obey the law, never acknowledging that the problem is that a month ago they changed the law at whim. In the famous U.S. Supreme Court case on pornography, Judge Potter Stewart attested that “I know it when I see it”. Something similar could be said of the Rule of Law: when the citizenry lives peacefully because it knows that no one can freely abuse it, the Rule of Law exists.
The Rule of Law has two faces. On the one hand, the power of the authority to manipulate the law at will, which violates the essence of the principle of legality that consists of that the law should be public, known by all and applied fairly. When a governor comes up against effective limitations to his plan of action, the country resides within a Rule of Law.
But there’s another dimension that isn’t small and is that of obeying the law on the part of the citizens: that which makes a citizen obey the law. This is also a key matter, perhaps implicit, in what is related to security, the police and legality.
According to the study of Tom R. Tyler*, people obey the law when they consider it to be legitimate and not because they fear punishment. The conclusion of Tyler, who conducted an extensive, survey-based analysis, is that it’s much more important, and profitable, for a legal system if the population respects it than if the latter feels threatened by the probability of being punished. His principal statement is that the authority’s legitimacy is much more important for people than the instruments employed for trying to make the law obeyed, an argument that stands in dramatic contrast with much of what is utilized in Mexico to combat criminality or tax evasion, to cite two obvious cases. If Tyler’s conclusion is valid, the crucial question is how that legitimacy is achieved.
From the perspective of the authority responsible for making the law obeyed, –and here Tyler supposes a condition of stability not typical of Mexico- what’s decisive is less police surveillance or that by other State bodies, than the behavior of people in their daily lives. One thing is what the letter of the law or regulation says and another is the individuals’ conduct. The theoretical objective comprises there being no difference between both principles: norm and behavior. The question is how to achieve that or what makes it possible.
According to Tyler, much of the legitimacy that inspires and generates a legal system derives from the interaction between the populace and the authority, especially with those directly associated with the legal-judicial process, such as police officers, judges, and public servants. His study shows that people generalize from those experiences to the political system. Were his conclusion equally applicable to Mexico, the implications would be monumental: based on the country’s police officers as the model for evaluating the rest of the government, up to the president himself, the result would be catastrophic, that is to say, like it is.
According to the study, interaction with the authority confers an enormous source of information to the individual. The inferences derived therein frequently become permanent and on that the individual’s perception with respect to the motivations of the functionary is crucial. If the latter is perceived as impartial, devoted to his work and fair in his actions, the citizen perceives him as legitimate authority. Contrariwise, if he/she is perceived as self-interested, incompetent or unjust, it leads the citizen to qualifying the entire political-judicial system as such. Equally important is the perception of how justice is meted out, especially in the case of trials, arrests and decisions in matters of criminal cases.
From this perspective –taking Tyler’s analysis to Mexico-, it’s not by chance that the population condemns decisions such as that of extraditing Florence Cassez to France or that of letting some very visible personage out of jail. Those situations are symptomatic of the conditions to which the author arrives in his study on Chicago: if the population does not believe that justice is being done, it perceives politicians as corrupt and sees the police as committed to their own interests or incompetent in complying with their responsibility, its conclusion with respect to the legitimacy of the judicial system is devastating and is reflected in those paradigmatic cases. It wouldn’t take much to extrapolate that to the whole political system.
The central implication of Tyler’s study is that there is a correlation between the perception of legitimacy people have regarding the authority and obeying the law. If legitimacy is high, people obey; if legitimacy is low, people do not feel obliged by the law and only obey it when the risk of not doing so is too high. Expressed in other terms, legitimacy is crucial for the functioning of a society and constitutes a key strategic factor for a government attempting to advance compliance with the law, in any of its ambits.
Matters such as the energy liberalization and credibility in the government go hand in hand and the point of departure is not commendable…
*Why People Obey the Law, Princeton.