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Rule of Law as a Goal of Development Policy

 

A prominent concern in the development community is the "rule of law" and the related concepts from other legal systems -- "etat de droit," "estado de derecho," "rechsstaat."  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." Policymakers in developing and transition nations are thus seeking ways to establish or strengthen the rule of law in their countries.  Investment rating services, non-governmental organizations, and other students of development are producing indices that try to measure the degree to which a nation enjoys the rule of law.

But overlooked in much of the dialogue about the rule of law is that the term has no fixed meaning. It originated in normative writings on law and government, principally by Western authors, and each tailored the term to fit his or her vision of the "ideal" or "just" state. As a consequence, one survey of how the term has been used in Germany, France, the United Kingdom, and the United States concludes that it "belongs to the category of open-ended concepts which are subject to permanent debate" (Grote 1999: 271).

Despite this multiplicity of definitions, most can be classified according to whether they emphasize formal characteristics, substantive outcomes, or functional considerations. The differences between these three conceptions and the implications of each for efforts to establish, measure, or foster the rule of law are described below.

Formal Definitions

Formal definitions of the rule of law look to the presence or absence of specific, observable criteria of the law or the legal system. Common criteria include: a formally independent and impartial judiciary; laws that are public; the absence of laws that apply only to particular individuals or classes; the absence of retroactive laws; and provisions for judicial review of government action. There is no definitive list of formal criteria, and different formal definitions may use different standards. What formal definitions have in common is that the "rule of law" is measured by the conformity of the legal system to these explicit standards.

The main advantage of a formal definition of the rule of law is that it is very clear, and relatively objective once the formal criteria are chosen. Choosing which standards to include may be controversial, but after the standards are made explicit, it is usually not difficult to observe the degree to which countries meet or don’t meet the standards. Formal definitions thus avoid more subjective judgements, for example about whether laws are "fair" or "just."

Formal definitions suffer from two major drawbacks, however. First, the formal conception may place too much emphasis on the "law in the books" and not pay sufficient attention to the "law in action." Official rules do not always (or even often) map onto the actual operation of the legal system. Thus a formal definition’s objectivity in observation may be purchased at the price of accuracy. Second, the formal criteria are chosen because there is an (often unarticulated) empirical presumption that those formal characteristics will lead to some substantive or functional outcome (Fuller 1964). Indeed, there is no other way to select the formal criteria.

But if that is the case, it suggests a flaw in the definition. What we really should be interested in – that is, the essence of the rule of law – is the substantive or functional outcome. Whether or not the formal characteristics contribute to that outcome ought to be a matter for research, not presumption. This suggests that the "objectivity" of the formal criteria may be illusory, since they are selected through subjective (and perhaps culturally biased) assumptions about the actual effect of the rules in question.

Substantive Definitions

An alternative to the formal approach to the rule of law is one that looks to substantive outcomes such as "justice" or "fairness." This approach is not concerned with the formal rules, except inasmuch as they contribute to the achievement of a particular substantive goal of the legal system. Unlike the formal approach, which eschews value judgements, the substantive approach is driven by a moral vision of the good legal system, and measures the rule of law in terms of how well the system being assessed approximates this ideal (Dworkin 1985).

The main advantage of the substantive version of the rule of law is the explicit equation of the rule of law with something normatively good and desirable. The rule of law is good in this case because it is defined as such. This is appealing, first because the subjective judgement is made explicit rather than hidden in formal criteria, and, second, because the phrase "rule of law" has acquired such a strong positive connotation. Many people cannot accept any definition that would allow, even in theory, a repressive or unjust regime to possess the rule of law.

But this explicit link between the rule of law and some conception of substantive goodness has drawbacks. First, and most obviously, determining how "just" a particular legal order is requires a subjective – and extremely complex – judgement call. Second, defining the rule of law as a "good" legal system risks making the concept so vague that it’s not very useful. Why should we bother talking about whether a society has or doesn’t have the "rule of law" when what we really are asking is whether the society is good or not? Third, the relationship between law and societal outcomes is problematic in the substantive definition. It is conceivable that there could be a society that had unjust law, or no law at all, and yet achieved substantive justice according to the normative criteria selected. On the other hand, one could imagine a society that had normatively perfect law and legal institutions, but where law was marginal to the point of irrelevance in actual social life, and where social outcomes tended to be normatively bad. Which society has more rule of law from the substantive perspective? Is it the law that must be good, or the social outcomes? If the former, then don’t all the problems with the formal definition apply? If the latter, why talk about law at all?

Functional Definition

A third approach to the rule of law is similar to the substantive definition, but tries to avoid the thorny normative issues by focusing on how well the law and legal system perform some function – usually the constraint of government discretion, the making legal decisions predictable, or some combination of both (Hayek 1960). One version of this view, for example, would hold that a society in which government officials have little or no discretion has a high level of rule of law, whereas a society in which they wield a great deal of discretion has minimal rule of law.

The functional definition of the rule of law is broadly consistent with the traditional meaning of the English phrase, which has usually been contrasted with "rule of man." It has the advantage, too, of defining the rule of law according to outcome-related criteria, but not requiring a moral verdict on the desirability of that outcome. The functional definition is narrow enough that it does not overlap with other more general concepts, and it makes questions as to the relationship of formal characteristics to the rule of law, and of the rule of law to substantive goals, researchable rather than tautological.

Nonetheless, the functional definition suffers from a number of difficulties. First, as with the substantive definition, the relationship between the legal system per se and the functional goal can pose problems. It is possible to constrain government officials or realize predictablity through means other than the legal system. Suppose one society has less official discretion than its neighbor even though the latter has apparently more restrictive laws. Which enjoys a greater rule of law under a functional definition? Another problem is the fact that looking at "predictability" or "official constraint" or any other function makes it hard to make any definitive statement about the level of rule of law in a whole society. Government officials may make literally thousands of decisions each day in a given system. Some of them may be highly constrained, while others are not. It is not at all clear how to aggregate the levels of discretion for individual types of decisions into an overall measure of the rule of law.

An additional point that the functional definition illustrates most strongly is that, despite contemporary rhetoric, there is no a priori reason to believe that the rule of law (defined functionally or formally) is necessarily always a good thing. Consider the example of official discretion. Official discretion is often a bad thing – when seen as such, the behavior is often called "arbitrary." On the other hand, sometimes official discretion is a good thing – in these cases, we tend to think of the behavior as "flexible." But flexibility and arbitrariness may be two sides of the same coin. Whether official discretion is used for good or ill depends on a host of other factors. The rule of law, while often a good thing, can in some cases create problems. (This point, of course, does not apply to a substantive definition, where rule of law is good by definition.)

Conclusion

Policymakers need to be clear about they mean by the rule of law because answers to many of the questions they are interested in – whether "rule of law" facilitates economic development and whether democracy is a necessary precondition for rule of law, to cite just two examples – depend crucially on what definition of the rule of law is being used. Moreover, the multitude of rule of law concepts is likely to breed confusion and misunderstanding between donors and recipients, or even within different members of the same community.

Perhaps the most important point for development analysts, policymakers, and the donor community in general to keep in mind is that the rule of law has a number of different possible meanings. All of these definitions have problems, and which one is appropriate will depend on the task at hand. But the pros and cons of these various conceptions – and, more importantly, the differences between the definitions – need to be borne in mind. Indeed, in the end it may make sense for donors and policymakers to eschew the ambiguous rhetoric of the rule of law in favor of the articulation of more specific reform goals.

This brief was prepared by Matthew Stephenson of the Harvard University Department of Government and Law School in 2005.

For Further Reference:

  • Allen, T.R.S. "Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism" Cambridge Law Journal 44(1):111-143 (1985)
  • Carothers, Thomas. "The Rule of Law Revival" Foreign Affairs 77(2):95-106 (1998)
  • Cooter, Robet D. "The Rule of State Law and the Rule-of-Law State: Economic Analysis of the Legal Foundations of Development" Annual World Bank Conference on Development Economics 1996 (Washington: The World Bank, 1997) pp. 191-217
  • Craig, Paul. "Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework" Public Law pp. 467-487 (1997)
  • Dworkin, Ronald. A Matter of Principle (Cambridge: Harvard University Press, 1985)
  • Fuller, Lon L. The Morality of Law (New Haven: Yale University Press, 1964)
  • Ghai, Yash. "The Rule of Law, Legitimacy, and Governance" International Journal of the Sociology of Law 14:179-208 (1986)
  • Golding, Martin P. "Transitional Regimes and the Rule of Law" Ratio Juris 9(4):387-395 (1996)
  • Grote, Rainer. "Rule of Law, Rechtsstaat and Etat de Droit," in Christian Starck, ed. Constitutionalism, Universalism and Democracy -- A Comparative Analysis. (Baden-Baden: Nomos Verlagsgesellschaft, 1999)
  • Hayek, Friedrich. The Constitution of Liberty (Chicago: University of Chicago Press, 1960)
  • Rapaczynski, Andrzej. "The Rule of Law in Theoretical and Comparative Perspective" Chapter 4 in Michener, Roger, ed. The Balance of Freedom: Political Economy, Law, and Learning (St. Paul: Paragon House, 1995) pp. 81-106
  • Shklar, Judith N. "Political Theory and the Rule of Law" in A. Hutchinson and P. Monahan, eds. The Rule of Law (Toronto: Carswell. 1987.) Reprinted in Judith N. Shklar, Political Thought & Political Thinkers (Chicago: University of Chicago Press, 1998)
  • Weingast, Barry R. "The Political Foundations of Democracy and the Rule of Law" American Political Science Review 91(2):245-263 (1997).

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