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What is the Rule of Law?
By Helen Yu and Alison Guernsey
Source: http://www.uiowa.edu/ifdebook/faq/Rule_of_Law.shtml
“Economic
growth, political modernization, the protection of human rights, and
other worthy objectives are all believed to hinge, at least in part,
on ‘the rule of law.’”
--World
Bank, The Rule of Law as a Goal of Development Policy
I. Introduction
to
the Rule of Law
Politicians,
lawyers, economists and policy-makers often use the term “rule
of law” to characterize a certain
type of legal-political regime. As the pace of globalization has
increased in the past two decades, many developing countries have
prioritized their policy agendas to promote the rule of law. This FAQ
provides an introductory explanation of the concept of the rule of
law and how it relates to development. It concludes with a brief
description of some of the criticisms that have been made about the
concept of the rule of law.
II. What
is the Rule of Law?
The
rule of law does not have a precise definition, and its meaning can
vary between different nations and legal traditions. Generally,
however, it can be understood as a legal-political regime under which
the law restrains the government by promoting certain liberties and
creating order and predictability regarding how a country functions.
In
the most basic sense, the rule of law is a system that attempts to
protect the rights of citizens from arbitrary and abusive use of
government power.
A.
Elements
of the Rule of Law
In
his book The
Morality of Law,
American legal scholar Lon Fuller identified eight elements of law
which have been recognized as necessary for a society aspiring to
institute the rule of law. Fuller stated the following:
1. Laws
must exist and those laws should be obeyed by all, including
government officials.
2. Laws
must be published.
3. Laws
must be prospective in nature so that the effect of the law may only
take place after the law has been passed. For example, the court
cannot convict a person of a crime committed before a criminal
statute prohibiting the conduct was passed.
4. Laws should be written with reasonable clarity to avoid unfair enforcement.
5. Law must avoid contradictions.
6. Law must not command the impossible.
7. Law must stay constant through time to allow the formalization of rules; however, law also must allow for timely revision when the underlying social and political circumstances have changed.
8. Official action should be consistent with the declared rule.
Standing
alone, these eight elements may seem clear and understandable. But
they are actually difficult to implement in the real world because
governments are often compelled to prioritize one goal over another
to resolve conflicts in a way that reflects society’s political choices. For example, making too many laws that are too
detailed and specific may make the legal system too rigid.
Inflexibility could cause the courts of a country (judiciary) to
neglect the human element of each particular case. Additionally,
instead of only applying prospectively, some laws are meant to apply
retroactively, or to past conduct, because they were passed with the
specific intent of correcting the conduct in question. Fuller
recognized these conflicts and suggested that societies should
prepare to balance the different objectives listed above.
B.
Beyond
Fuller’s Elements
Fuller’s criteria is helpful in understanding the rule of law because it outlines the types of rules, or formal constraints, that societies
should develop
in order to approach legal problems in a way that minimizes the abuse
of the legal process and political power. The rule of law, however,
extends beyond mere regulations and is also shaped by the so-called
“institutional
constraints”
on government implied
in Fuller’s
elements. One such institutional constraint is the existence of an
independent judiciary; another is developing ways of promoting
“transparent governance.” Informal constraints, such as local
culture or traditions that may encourage citizens
to organize their behavior around the law, also help constrain the
government, promote liberty and, therefore, define the rule of law.
Although still seemingly vague, the rule of law may be most
concretely defined as a theory of governance relying upon a series of
legal and social constraints designed to encourage order and to
prevent arbitrary and unreasonable exercise of government power.
III. The
Rule of Law and Development
Multilateral
institutions such as the World Bank and many policymakers throughout
the world believe the rule of law promotes economic development.
A. Theory
Modern
economic development often comes with the introduction of a market
economy, or an economy based on private enterprise that does not rely
on government-planned production. Max Weber, a famous sociologist and
economist, has commented that the capitalistic order upon which a
market economy is based is organized upon a rational, law-bound
state. The market economy brings buyers and sellers to the market for
complex transactions and the international sale of goods. In the age
of globalization, players in the market economy can come from many
different parts of the world.
Law
is important to the market economy because it is the common basis on
which parties can make agreements; it provides parties with
confidence that disputes can be resolved efficiently and fairly. For
this reason, the predictability and order that the rule of law
promotes in substantive laws is viewed as the stabilizing force
behind much economic development. The rule of law helps set the
“rules
of the game” in critical areas such as investments, property, and
contracts.
The
rule of law also serves as an important assurance of social rights
and government accountability. Governmental restraint is especially
critical for many transitioning economies where a previously planned
economy is to be transformed into one that is market-based. When the
government is no longer the sole owner of land, capital, and labor,
the rule of law guarantees that the crucial elements of the economy
will be free from arbitrary governmental actions. The rule of law
thus assures market participants that the government will adopt a
hands-off approach to investments and production, allowing those
participants to fully exercise their rights in relation to land,
labor and capital.
B. Important Components of Rule-of-Law Reforms
i. Court
Reforms
The
efficiency of the courts is an important component in rule-of-law
reforms as the existence of a judiciary is a fundamental aspect of
the rule of law.
For the newly independent states established after the downfall of
the U.S.S.R., for example, providing an efficient means of dispute
resolution was crucial
to meeting the demands of an increasingly privatized economy. At the most basic level, this simply meant that courts needed to be
available to adjudicate disputes and enforce resolutions. For
countries that are further along in the reform process, more complex structural reforms that strengthen court capacity (i.e.,
training judges), independence, and transparency are needed.
To increase accountability and transparency, information technology
systems may be installed to provide greater public access. To
increase independence of the courts, the government can provide them
with funding that will allow them to make their own financial and
administrative decisions. Furthermore, for countries that have
already established these structural reforms, to encourage the
adoption of the rule of law, court performance should be evaluated on
a periodic basis. Independence, accountability, efficiency, access,
affordability, alternative dispute resolution mechanisms, and the
quality of professionals are some of the characteristics that may
provide an accurate measurement of the system’s success.
An example of success in this area of rule-of-law reform is the
Arbitrazh courts in Russia. Established to hear solely economic
disputes, the Arbitrazh courts underwent legislative reforms in 1991,
1992, and 1995. Those reforms led to personnel and procedural
safeguards, as well as the establishment of a higher-level appellate
court.
The immediate result of the reforms was an increase in the number of
cases filed in the Arbitrazh court system. Moreover, research has shown that despite Russia’s corruption and localism problems, foreign litigants are treated
fairly. Although there are exceptions in some local regions,
statistics indicate progress in court reforms and the ability of the Arbitrazh courts to resolve basic commercial disputes in a timely
manner. .
ii. Legal
Rules
Another important rule-of-law reform goal is to build the legal rules.
As Fuller stated, “laws must exist.” Economic reforms have
generated a large number of new economic laws in developing
countries. Between 1990 and 1995, 45 developing and former socialist
countries enacted new investment laws or codes covering a wide range
of areas. Many of
these investment laws were passed to liberalize the existing
investment regime in the developing country by offering clear and
broad legal protection for all types of investments. In China, for
example, overall national legislative activities have seen continuous
growth. This growth is evidenced by the fact that the total number of
laws, resolutions, and amended laws rose to 306 in 1993-1998 from
only 60 between 1978 and 1983,the period during which economic reform began.
C. Institutional
Encouragement on the Global Level
To encourage additional country-specific development, in the early 1990s the World Bank and the International Monetary Fund (IMF) began
conditioning financial assistance on the implementation of the rule
of law in recipient countries. These organizations provided aid to
support initiatives in legislative drafting, legal information,
public and legal education, and judicial reforms, including
alternative dispute resolution.
By
conditioning funds on the establishment of the rule of law, the World Bank and the IMF also hope to reduce corruption, which undermines economic development by scaring away
investors and preventing the free flow of goods and capital.
Currently, in its Millennium Development Goals (MDG), the United Nations (UN) also champions the rule of law as a vehicle to bring about more
sustainable environmental practices. The MDGs are eight goals that
the UN hopes to achieve by 2015 in an effort to respond to the
world’s greatest development challenges.
The MDGs call on nations to make laws in areas such as international
environmental and energy law, and also call on nations to encourage
their citizenry to abide by those rules through changes in custom.
The UN explicitly acknowledges that achievement of the MDGs rests
heavily on the development of the rule of law, among other factors.
IV. Criticisms
of the Rule of Law
A.
Law
as the Ruling Standard
The very term “rule of law” suggests that the law itself is the sovereign, or the
ruler, in a
society.
As an ideal, the rule of law stands for the proposition that no
person or particular branch of government may rise above rules made
by elected political officials. These laws reflect the morals of a
society, and in a Western democracy they are supposed to be pre-established, formalized, neutral, and objective. Everyone is subject to their dictates in the same way. The rule of law,
therefore, is supposed to promote equality under the law.
Critics of the rule of law, however, have noted that this system creates a ruling elite that has the power to manipulate through the law. As
Harvard law professor and leader of the critical legal studies
movement, Morton J. Horwitz, suggested, “By promoting procedural justice [the rule of law] enables the shrewd,the
calculating, and the wealthy to manipulate its forms to their own
advantage.”
Scholars who agree with this statement see the law as
“indeterminate,” meaning that the law has no clear or objective
meaning. Consequently, the law cannot possibly serve as an effective barrier to the government’s abuse of power because power structures in society, not the law
itself, determine the outcome of legal issues and problems.
Because judicial interpretation and enforcement of the law is influenced by the ruling elite, the rule of law does nothing more than legitimize
already existing legal relationships and power structures. The
absence of predetermined outcomes coupled with the possible influence
of the ruling elite means that the obligations of equality and
predictability that the rule of law imposes are impossible to
achieve. Although the rule of law appears to be “objective,”
meaning that it is fairly applied to all people, it is actually
subjective and unfairly applied. The rule of law theory has therefore
gained
an undeserved legitimacy in the modern world.
Partly responding to the criticism outlined above, some scholars have commented that part of the problem with the rule of law is its narrow
conception. Instead of viewing the rule of law solely as a judicially
focused book of rules, scholars should focus more on the informal and
institutional constraints that restrict governments. For example, the
moral and tradition-based restraints that societies impose on the
government should be given greater consideration in reforms and the
overall conception of the rule of law. These aspects of the rule of
law are not subject to the same type of manipulation. This broader
conception may help avoid situations in which the legal elite
manipulate laws because by its definition the rule of law is not
solely dependent on the judiciary, which often reflects the power of
the elite, for its power.
B.Additional
Limits of the Rule of Law
Laws
are often incapable of providing definitive standards of behavior
because of their complex structures and unavoidable ambiguities in
language. As mentioned previously, this often leads to the
unpredictable application of the law. Critics of the rule of law
claim that due to the indeterminacy in the rules, at no time is a
person fully protected within a sphere of individual freedoms.
Consequently, one can never be sure that their actions are legitimate
or their freedom justified. Furthermore, the rule of law may not be
tied to general notions of justice or fairness. The rule of law is
therefore sometimes criticized for tolerating extraordinarily unjust
rules, rules that undercut the theoretical justification of the rule
of law, the
promotion of liberty and restrained government.
C. Law
& Development: Legal Transplantation
The
term “legal transplantation”
describes the phenomenon of borrowing legal rules from other
countries. Academic debates often center on the moral and practical
implications of legal transplantation and, by extension, the
imposition of the rule of law. Many developing countries, including China, Russia, Turkey and Japan, since the early 1900s, had varying legal traditions of their own. When developing countries such
as these adopt laws from other countries, the rules borrowed may not
fit the underlying tradition, culture, and social context of the
developing country. For example, Western democracies tend to focus on
individual liberties, which many people associate with capitalism.
Consequently, the Western notion of what constitutes the rule of law
reflects this world-view. Other legal structures, however, may
emphasize communitarian duties and responsibilities. Additionally, in
the West, legal development occurred simultaneously with social,
political and economic development, while in countries such as China,
the creation of the rule of law has been driven in large part by the
need to contend and interact with more developed countries.
Therefore, transplanted laws may often be at odds with cultural,
political and social norms since they were not simultaneously
created.
Legal transplantation is especially common in economic laws such as
competition (antitrust), consumer protection, intellectual property
rights, and securities and exchange regulations. In economic law,
legal transplantation usually creates less controversy than in other
areas of laws such as constitutional, administrative or family law.
Seemingly, this is because economic law includes concepts such as
efficiency, stability, and predictability in the marketplace, whereas
on non-economic laws may cut more deeply into a society’s
culture. The transplantation of economic laws is still often
criticized, however, as being a form of subtle blackmail. Because
Western societies generally control access to the global market, to
some extent, developing nations must adopt the
developed nations’
laws and understandings of the rule of law in order to engage
effectively in global economic activity.
V. Conclusion
As
evidenced by the failure to arrive at a precise definition, the rule
of law is a complicated theory. As much as it embodies politics and
the ideals of democracy, an in-depth understanding of the theory must
include the law’s
interaction with language, history, social structure, and culture.
Importantly, the rule of law is more than just a set of rules and
their judicial application. As a much-advocated theory in development
studies, the rule of law is also a matter of policymaking,
institutional development, and international politics.
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