Global Perspectives on the Rule of Law

James J. Heckman, Robert L. Nelson, Lee Cabatingan

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135202668
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Global Perspectives on the Rule of Law is a collection of original research on the rule of law from a panel of leading economists, political scientists, legal scholars, sociologists and historians. The chapters critically analyze the meaning and foundations of the rule of law and its relationship to economic and democratic development, challenging many of the underlying assumptions guiding the burgeoning field of rule of law development. The combination of jurisprudential, quantitative, historical/comparative, and theoretical analyses seeks to chart a new course in scholarship on the rule of law: the volume as a whole takes seriously the role of law in pursuing global justice, while confronting the complexity of instituting the rule of law and delivering its promised benefits.

Written for scholars, practitioners, and policy-makers, Global Perspectives on the Rule of Law offers a unique combination of jurisprudential and empirical research that will be provocative and relevant to those who are attempting to understand and advance the rule of law globally. The chapters progress from broad questions regarding current rule of development efforts and the concept of rule of law to more specific issues pertaining to economic and democratic development. Specific countries, such as China, India, and seventeenth century England and the Netherlands, serve as case studies in some chapters, while broad global surveys feature in other chapters. Indeed, this impressive scope of research ushers in the next generation of scholarship in this area.

Part I
Assessing rule of law development

Chapter 1
Rule of law temptations

Thomas Carothers

In an article I published in Foreign Affairs ten years ago, entitled “The Rule of Law Revival,” I called attention to a striking trend – the rise in international policy circles of attention to and concern over strengthening the rule of law in countries around the world (Carothers 1998). Suddenly, I wrote, it seemed that talk of the rule of law was everywhere and that rule-of-law development was being held out as the answer to a multitude of diverse policy challenges, whether it was how Russia could consolidate its shaky transition away from communism, how China could solidify its meteoric economic growth, or how Mexico could resist the capture of its state institutions by narcotraffickers.

I attributed this noteworthy rise to the fact that the rule of law appeared to be crucial to moving forward with both halves of the dual economic and political transition that in the 1990s had become the defining framework for changes in much of the developing world and the post-communist world. That is to say, on the one hand rule-of-law development would facilitate economic transitions to the market model, by helping achieve legal and institutional predictability and efficiency in a variety of areas crucial to the operation of a market economy. And on the other hand, it would help bolster fledgling democratic experiments by undergirding new constitutions, electoral systems, and political and civil rights. Moreover, progress on the rule of law would help alleviate the two serious problems – corruption and ordinary crime – whose growing severity in many countries appeared to be the major negative side effects of the many attempted economic and political transitions. In short, I argued, rule-of-law development owed its new prominence in international policy circles to its apparent promise of being what could be called “an elixir of transitions” (ibid.: 99).

In the intervening ten years, international attention to rule-of-law development has only continued and in fact even increased. Political leaders all over assert a commitment to building the rule of law. Officials in donor countries express a determination to help support rule-of-law development worldwide and the number of organizations and initiatives dedicated to rule-of-law assistance keeps multiplying. The rule-of-law field continues to radiate an almost constant sense of discovery. Policy actors and aid practitioners keep discovering it and becoming seized with enthusiasm for the rule of law. They are often surprised to learn that what seems to them a vital discovery is in fact a relatively late arrival to a revival that has been going on for quite some time.

This continued rise of the rule-of-law star reflects the fact that the connections between the rule of law to economic and political development, although perhaps not as straightforward as some early enthusiasts presumed, are real. In the economic domain, the simplistic idea that the rule of law automatically helps foster economic growth has come under useful critical scrutiny (see, e.g., Haggard et al. 2008). Yet at least some positive link appears plausible and is enough to animate many aid practitioners.

In the political domain, the problems encountered by many countries with regard to democratization have only strengthened the view of many Western policy experts that the rule of law is a necessary focus. Faced, for example, with the disappointing slide in Russia toward soft authoritarianism, some Western observers conclude that the West’s (and Russia’s) mistake was insufficient focus on the rule of law early on after the collapse of the Soviet Union. The catastrophic problems in Iraq after the ouster of Saddam Hussein prompted a similar conclusion on the part of some US observers who argued that a greater rule-of-law aid effort should have preceded the democracy-building project. When in Egypt the Muslim Brotherhood made a surprisingly strong showing in the 2005 parliamentary elections, some analysts cautioned that Egypt should not move ahead with a political opening until it first consolidates the rule of law.

Moreover, the rule of law has also gained further impetus in this decade from the continued advance of globalization. Already by the late 1990s it was becoming clear that globalization tends to increase incentives and even pressures for rule-of-law development both within countries and among countries. Countries seeking a share of the increasing flow of capital and goods across borders find that weak rule of law can be an obstacle. Weak legal protection for foreign investors, for example, can discourage foreign direct investment. High levels of crime and corruption may have similar effects. The increasing flow of goods and capital create a need for regulating and managing them, which stimulates rule-of-law development.

Globalization has proven in this decade to be less benign and much less a process of spreading Western norms than many US observers believed or hoped it would be ten years ago. Nevertheless, its continued intensification continues to bolster the need for rule-of-law development in many countries. For many Americans, globalization has come in this decade to be associated with challenges or even threats to the United States, whether it is the rise of new economic powers or the unsettling use of the tools of global communications by Al Qaeda and other terrorist groups. Yet even as globalization changes in character, almost every element of it – whether it is the remarkable increase in flow of digitalized information via the Internet, the diversification of transnational civil society, or the heightened movement of service industries across borders – implies some sort of rule-of-law development as either a facilitator or a counterweight.

In this context of ever-increasing interest and often enthusiasm for rule-of-law development among Western policymakers and aid practitioners, a tendency exists toward uncritical and sometimes wishful thinking about the subject. Some of these lines of thought represent what can be described as temptations, temptations to believe certain things about the rule of law and its place on the international stage that are misleading and sometimes unhelpful. At least four such temptations – concerning consensus, reductionism, sequencing, and ease – are identifiable and deserve attention.

Consensus

The degree of apparent international consensus on the value and importance of the rule of law is striking. Almost all other parts of the Western donor consensus on what is good for other countries are hotly debated. For example, the desirability of “the Washington consensus” as an economic prescription for developing countries is argued about constantly in both developed and developing countries. What is informally termed “a consensus” is in fact a constant source of controversy. On the political front, although liberal democracy appeared for a time to be gaining near-universal normative acceptance, it is questioned these days, whether by practitioners of “authoritarian capitalism,” Bolivarian democracy, Islamic revolutionary democracy, or other alternative political systems. In contrast, almost no leader anywhere is openly against the rule of law or will publicly mount an argument that the rule of law is a bad idea for their society. And ordinary citizens almost everywhere will respond very positively to commitments by politicians to strengthen the rule of law.

This wide consensus of the rule of law is impressive. Yet one must be careful about attributing too much significance to it. In the first place, affirmations by powerholders of commitment to advancing the rule of law often do not translate into real action. Many leaders in developing or post-communist countries are elected these days on the basis of promises to reduce corruption, restore law and order, and implement other elements of a rule-of-law agenda. In fact, anticorruption has become one of the key issues in electoral campaigns in many countries, developed or developing. Yet these stern promises tend to melt in the heat encountered when new leaders confront the entrenched, countervailing interests that undergird the existing patterns of corruption. And dispiritingly often, the new leaders end up reproducing the old forms of corruption, or inventing their own. Hugo Chávez came to power decrying Venezuela’s endemic corruption, yet his rule has come to be marked by equally or even greater corruption. Relatively few citizens of countries in the former Soviet Union, South America, sub-Saharan Africa, South Asia, and elsewhere would say that the apparent global consensus on the importance of the rule of law has translated into actual marked improvement of the state of law in their societies.

Second, even to the extent that all the many stated commitments by politicians, donor representatives, and others to the rule of law are real, the concept is so capacious that it is open to significantly different interpretations and operational emphases. Sometimes the differences are rooted in ideology. Conservatives often embrace the rule of law as a desirable developmental objective because they find in it things they especially value, such as property rights, fair treatment of foreign investors, strong police, and a general emphasis on law and order. Persons on the left read the concept differently. They see in it a focus on rights and on fair and equal treatment for all, a focus that will help boost disadvantaged people and empower citizens generally. Centrists are drawn to the rule of law as a technocratic ideal, one that encompasses key elements contributing to good governance, such as governmental accountability, transparency, and anticorruption.

These ideological differences exist both among donor actors supporting rule of law development and among persons within the society in question. In Colombia, for example, rule-of-law reform has been intensely politicized for many years. This is true among the various US actors engaged in the subject, which range from the US Department of Justice and the US Agency for International Development to various US human rights groups. It is similarly true within Colombian society itself, where the contending political forces have often disagreed about the best approach to rule-of-law reform.

Differences over the meaning of rule-of-law development are not necessarily always ideologically based. Sometimes they simply reflect varied professional perspectives. When asked to contribute to rule-of–law reform, for example, judges will tend to emphasize the importance of judicial reform. Police will argue for the need to supplement resources for law enforcement. Lawyers will highlight the potentially valuable role of bar associations. Mediation specialists will note the value of increased emphasis on arbitration and mediation. And so forth. Furthermore, different aid organizations that support rule-of-law development also have their own specialties and preferences within the diverse corpus of rule-of-law development activities. Within one country context, different organizations will tend to push for their own varied areas of specialization.¹

As a result, when diverse national and international actors gather and agree that they are all committed to helping build the rule of law in a particular country or context, they usually agree on much less than it initially appears. They may all proceed with a putatively common rule-of-law agenda but in practice pursue quite different preoccupations, either in relative isolation from each other or sometimes at cross purposes.

Reductionism

As international attention to rule-of-law development increased across the 1980s and 1990s, the definition of rule of law became more inclusive. Early on, some rule-of-law aid actors, particularly those who came to their work primarily out of a concern for economic development, inclined toward a relatively formalist or proceduralist conception of the rule of law. Such a conception stresses procedural fairness and institutional inefficiency. It leans in the direction of rule by law as much as rule of law. Over these two decades, however, supporters of a broader conception of the rule of law gained ground in international development circles. This broader conception holds that the rule of law is about substantive outcomes, not just procedural norms. It views basic political and civil rights as essential to ensuring justice and an integral part of the rule of law².

The growing inclusiveness helped tie the rule-of-law agenda together with the democratization agenda. Promoting rule-of-law development entailed supporting the institutionalization of core democratic rights. And supporting democracy helps bolster basic elements of rule-of-law development. Some organizations engaged in rule-of-law support, such as the World Bank, maintained an official neutrality regarding political development. In practice, however, the broadening of their work on the rule of law made it increasingly compatible with and sometimes similar to rule-of-law work carried out by organizations that expressly incorporated a pro-democracy rationale.

In this decade that process of inclusion has met a countertrend. As more authoritarian and semi-authoritarian governments publicly embrace a rule of law agenda, they tend to prefer the more reductive, proceduralist conception. They promise citizens fairness and efficiency but steer clear of the rights element of the rule of law. Thus they seek to break the tie between advancing the rule of law and building democracy. This is evident with the two largest challengers of the Western democratic line, the current governments of Russia and China. Vladimir Putin came to office in Russia promising a rule-of-law presidency and he held to that line (at least rhetorically) even as he moved the country away from its earlier democratic experiment. Russia’s new president, Dmitry Medvedev, has struck a similar note, emphasizing his commitment to rule-of-law reform, even as he continues the pattern of limited political openness. China’s rulers have been responding to rising citizen anger and unrest over corruption and poor local governance by carrying out some rule-of-law reforms, yet they continue to restrict political contestation and political freedom. In all these countries, strong-hand rulers have found that the rule of law works well as an alternative objective to democratization, not one that complements it but rather one that will help preserve authoritarian or semi-authoritarian rule. Thus in this decade, the continued growth of international attention to the rule of law in some countries involves greater reductionism rather than inclusion. The growing attention is thus as much about the fraying of an international consensus on political values as it is about a growing political convergence. Western policy actors, often eager to find signs of positive change or at least positive intent from those governments, salute their rule of law promises, overlooking the damage that the reductionism may cause to the health of the broader rule-of-law agenda.

Sequencing

Another unhelpful temptation concerning the rule of law that has gained ground in international policy circles in this decade is that of sequencing – the idea that transitional countries should not pursue rule-of-law development and democratization together but rather in sequence, first building the rule of law and only after that turning to democratization. The thinking is that until a country enjoys a reasonable level of economic development, the rule of law, and a well-functioning state, it is not ready for democracy. The growing reach of this idea connects to the tendency toward reductionist thinking about the rule of law – seeing rule-of-law development and democratization as distinct processes rests on a narrow, proceduralist conception of the rule of law.

The new enthusiasm for sequencing on the part of some influential Western scholars and policy experts reflects their concerns over what they see as the high...

Table of contents

• Law, development and globalization
• Contents
• Illustrations
• Notes on contributors
• Acknowledgments
• A preface and an introduction
• Part I Assessing rule of law development
• Part II Global justice and the world community
• Part III Rule of law and economic development
• Part IV Rule of law and political development
• References
• Index