Christopher May (Editor), Adam Winchester (Editor) - Handbook On The Rule of Law-Edward Elgar (2018)

HANDBOOK ON THE RULE OF LAW
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For Adam Winchester, student, friend and colleague
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Handbook on the Rule of Law
Edited by
Christopher May
Professor of Political Economy, Lancaster University, UK
Adam Winchester
Formerly at Lancaster University, UK
Cheltenham, UK • Northampton, MA, USA
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© Christopher May and Adam Winchester 2018
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or
transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or
otherwise without the prior permission of the publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.

William Pratt House
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Northampton
Massachusetts 01060
USA
A catalogue record for this book

is available from the British Library
Library of Congress Control Number: 2018935747
This book is available electronically in the

Law subject collection
DOI 10.4337/9781786432445
ISBN 978 1 78643 243 8 (cased)

ISBN 978 1 78643 244 5 (eBook)
Typeset by Servis Filmsetting Ltd, Stockport, Cheshire

02
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Contents
List of contributorsviii
Introduction to the Handbook on the Rule of Law1

Christopher May and Adam Winchester
PART I DEFINING THE RULE OF LAW
1 The advantages of a thin view 21

Jørgen Møller
2 The promise of a thick view 34
Adriaan Bedner
3 Difficulties with measuring the rule of law 48
Tom Ginsburg
4 The rule of law, legal pluralism, and challenges to a Western-centric view:
Some very preliminary observations 57
Peer Zumbansen
5 Arbitrary power and the ideal of the rule of law 75
Martin Krygier (with Adam Winchester)
6 The centrality of predictability to the rule of law 96
Christopher May
7 The rule of law in inter-national relations: Contestation despite diffusion –
diffusion through contestation 109
Antje Wiener
PART II THE HISTORY OF THE RULE OF LAW
8 The rule of law: An outline of its historical foundations 135

Pietro Costa
9 Minimising Magna Carta and modernising exposition of the rule of law in
the English historical constitution 149
J.W.F Allison
10 Turning the rule of law into an English constitutional idea 167
J.W.F. Allison
11 The rule of law and the rise of capitalism 184
Tor Krever
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vi Handbook on the rule of law
PART III INSTITUTIONS OF THE RULE OF LAW
12 The rule of law and its application to the United Nations 203
Clemens A. Feinäugle
13 Power rules: The World Bank, rule of law reform, and the World
Development Report 2017 217
Deval Desai
14 The rule of law and the European Union 235
Amichai Magen and Laurent Pech
15 Non-governmental organisations and the rule of law: The experience of Latin
America257
Fiona Macaulay
16 Lawyers and the rule of law 271
David Howarth
17 The rule of law and legal education: Do they still connect? 289
John Flood
PART IV CONTEXTUALISING THE RULE OF LAW
18 The rule of law, new constitutionalism, and transnational legality 307

A. Claire Cutler
19 Global administrative law 322
Valentina Vadi
20 The rule of law and feminism: The dilemma of differences 333
Anna Loretoni
21 The rule of law and Islam 345
Jerg Gutmann and Stefan Voigt
22 The rule of law and human rights 357
Mona Rishmawi
PART V APPLYING THE RULE OF LAW
23 The rule of law from a law and economics perspective 383

Mariana Mota Prado
24 The rule of law, institutions, and economic development 405
Lydia Brashear Tiede
25 The legal empowerment of the poor 419
Dan Banik
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Contents vii
26 The rule of law as a marketing tool: The International Criminal Court and
the branding of global justice 434
Christine Schwöbel-Patel
27 The rule of law and terrorism 453
Clive Walker
28 Post-conflict peacebuilding and the rule of law 471
Teresa Almeida Cravo
29 Rule of law in Asia: The case of China 490
Thomas E. Kellogg
30 Court development in Timor-Leste: ‘Handover’ and its long shadow 509
Pip Nicholson and Samantha Hinderling
Subject index531
Name index536
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Contributors
EDITORS
Christopher May holds the Chair of Political Economy at Lancaster University and has
published widely on the interactions between the law and political economy (ranging from
intellectual property rights to the rule of law and the corporate form). Having spent nine
years in faculty management, he is now back in the Department of Politics, Philosophy
and Religion enjoying life as a normal professor.
Adam Winchester was a Doctoral Researcher in the Department of Politics, Philosophy
and Religion, Lancaster University. During the final stages of preparing this volume for
publication Adam was taken ill and died suddenly. I had known Adam for around 20
years, from when I first taught him as a mature undergraduate to his studying with me to
complete a doctorate while also working as co-editor on this volume. Both in a physical
and an intellectual sense Adam was really bigger than life and his passing leaves a gap
that it will be difficult to fill. Is it no exaggeration to say that without his tenacity and
dedication to the project, this volume would not be in your hands today. Adam’s life had
taken a new turn with his move into the academy and while it is a tragedy that he will not
now follow his chosen path, nevertheless this Handbook represents a lasting testament to
an academic career cut short all too early.
CONTRIBUTORS
J.W.F. Allison has been appointed to the Cambridge Law Faculty since 1995. He previously
held lectureships at the Universities of London, Cape Town and Chicago. His main publica-
tions are two monographs The English Historical Constitution and A Continental Distinction
in the Common Law and the two-volume Oxford Edition of Dicey which he edited and
which includes Dicey’s largely unpublished comparative constitutional lectures.
Dan Banik is Professor of Political Science and Research Director at the University
of Oslo’s Centre for Development and Environment. His research interests include
poverty, inequality, governance, legal empowerment, social protection, development
aid, famine, and food security. Professor Banik’s recent books include The Democratic
Dividend: Political Transition, Poverty and Inclusive Development in Malawi (2016) and
The Legal Empowerment Agenda: Poverty, Labour and the Informal Economy in Africa
(2011).
Adriaan Bedner’s research at Leiden Law School, The Netherlands focuses on
Indonesian law and society. He has written on a wide variety of subjects in this field,
including access to justice, dispute resolution and the judiciary. He has also done work
of a more general theoretical and comparative nature, in particular on rule of law and
access to justice.
viii
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Contributors ix
Pietro Costa is Professor Emeritus of the University of Florence. Among his recent
publications are Civitas. Storia della cittadinanza in Europa, 1999–2001; Democrazia
politica e Stato costituzionale, 2006; Poucos, muitos, todos. Lições de história da
democracia, 2012.
Teresa Almeida Cravo is an Assistant Professor of International Relations at the Faculty
of Economics of the University of Coimbra (Portugal) and a researcher at the Centre for
Social Studies. She is currently the co-coordinator of the PhD programme ‘Democracy
in the XXIst Century’ and coordinator of the Master’s programme in International
Relations – Peace, Security and Development Studies. She has a PhD in Politics and
International Studies from the University of Cambridge. Her research focuses on peace,
violence and global interventionism, from a critical perspective.
A. Claire Cutler is Professor of International Relations and International Law in the
Political Science Department of the University of Victoria, Victoria, British Columbia,
Canada. Among her publications are Private Power and Global Authority: Transnational
Merchant Law in the Global Political Economy (2003) and The Politics of Private
Transnational Governance by Contract edited with Thomas Dietz (2017).
Deval Desai researches legal reform, global governance, expertise and ignorance at the
Albert Hirschman Center on Democracy, Graduate Institute, Geneva. He has published
on these in the Annual Review of Law and Social Science, Humanity, Development &
Change, and the Journal of Development Studies. He was recently Fellow-in-Residence at
the Institute for Global Law and Policy, Harvard Law School, and has worked for several
years as a Justice, Conflict, and Governance Specialist at the World Bank.
Clemens A. Feinäugle worked as an Associate Legal Officer at WHO, Geneva, before
working at the Max Planck Institute Luxembourg and before that as a law clerk at the
Federal Constitutional Court of Germany, and before that as a Senior Research Fellow
at the Max Planck Institute for Foreign Public Law and International Law in Heidelberg.
John Flood is Professor of Law and Society and Inaugural Director of the Law Futures
Centre, Griffith University Law School, Australia. His research focuses on the legal
profession, globalisation of law, and technology and law. His latest research endeavours
are in the fields of blockchain technologies and ICOs, and their regulation.
Tom Ginsburg currently co-directs the Comparative Constitutions Project, an NSF-funded
data set cataloging the world’s constitutions since 1789 at the University of Chicago,
USA. His books include Judicial Reputation: A Comparative Theory (2015) (with Nuno
Garoupa); and The Endurance of National Constitutions (2009) (with Zachary Elkins
and James Melton), which won the best book award from Comparative Democratization
Section of APSA. Before entering law teaching, he served as a legal advisor at the Iran-US
Claims Tribunal, The Hague and currently serves as senior advisor on Constitution
Building to International IDEA.
Jerg Gutmann is Post-doctoral Researcher at the Institute of Law and Economics, University
of Hamburg, Germany; he works at the intersection between economics, law, and political
science. Most of his research addresses questions in the new institutional economics and
political economy and tries to answer them based on cross-country empirical research.
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x Handbook on the rule of law
Samantha Hinderling is working for her PhD at Melbourne Law School and is research-
ing evaluation in international legal development. She previously worked as Associate
Director for a consulting firm based in Australia specialising in legal reform and cross-
cultural communication. She was also principal research assistant on a project funded
by the Australian Research Council on court reform in Vietnam and Cambodia at the
University.
David Howarth is Professor of Law and Public Policy, Fellow of Clare College, author
of Law as Engineering: Thinking about what Lawyers do (2013), ‘Lawyers in the House
of Commons’ in D. Feldman (ed.), Law in Politics, Politics in Law (2015) and ‘The
Politics of Public Law’ in M. Elliott and D. Feldman, Cambridge Companion to Public
Law (2016).
Thomas E. Kellogg is Executive Director, Georgetown Law Asia, USA, where he oversees
various programmes related to law and governance in Asia. He is a leading scholar of
legal reform in China, Chinese constitutionalism, and civil society movements in China.
Kellogg has also written widely on Chinese foreign policy, US-China relations, and Asian
geopolitics. He has lectured on Chinese law at a number of universities in the United
States, China, and Europe. He has also taught courses on Chinese law at Columbia,
Fordham, and Yale Law Schools.
Tor Krever is Assistant Professor of Law at the University of Warwick, UK. His research
interests include the history of international law, international criminal law, political
economy, and critical and Marxist legal theory. He is an editor of the London Review of
International Law. His writing has appeared in journals including New Left Review, the
Leiden Journal of International Law, the Harvard International Law Journal, and Third
World Quarterly.
Martin Krygier is the Gordon Samuels Professor of Law and Social Theory and
Co-Director of the Network for Interdisciplinary Studies of Law at the University of
New South Wales, Australia and Honorary Professor at RegNet. His research interests
encompass law and social theory, including legal theory; law after communism; the rule
of law; normative social theory; and interactions between state and non-state law.
Anna Loretoni is Full Professor of Political Philosophy at la Scuola di Studi Universitari
e di Perfezionamento Sant’Anna in Pisa. Her research interests include the theory of the
war of Carl von Clausewitz, Kantian perpetual peace and the international order, just war
theory, conceptions of federalism, the relationship between national and supranational
political identity, and gender identity. In recent years her research work has addressed
theoretical issues related to the process of European integration, both in relation to matters
within the Union, and in relation to its international role.
Fiona Macaulay specialises in human rights, gender, and justice reform issues, especially in
Brazil and Latin America, and especially related to the prison system (at the University of
Bradford, UK). Previously, she was Brazil researcher at Amnesty International and then
ran the human rights programme at the Centre for Brazilian Studies at the University
of Oxford, where she was a research fellow. Dr Macaulay now works closely with the
Brazilian Forum on Public Security.
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Contributors xi
Amichai Magen works at the Interdisciplinary Center, Herzliya, Israel. He holds a JSD
(Stanford), and LLM (Cantab.). His research and teaching interests include the future of
the liberal international order, sovereignty, democracy, and the rule of law; governance in
areas of limited statehood; political violence; EU external relations, and EU-Israel relations.
Jørgen Møller has a PhD from the European University Institute in Florence, Italy (2007)
and is currently professor at the Department of Political Science, Aarhus University,
Denmark. His research interests include conceptualisation of democracy and the rule of
law, patterns of democratisation and democratic stability, patterns of state formation, the
origins of representative institutions, and comparative methodology.
Pip Nicholson is the Director of the Asian Law Centre, Melbourne Law School, Australia.
Her most recent books are Drugs Law and Legal Practice in Southeast Asia (co-authored
with Tim Lindsey, 2016), and Law and Development and the Global Discourses of Legal
Transfers (co-edited with John Gillespie, 2012).Her current research interests include
Vietnamese law and legal change with a focus on the constitution, courts, Vietnamese
conceptions of law and legal institutions, and the death penalty. She also works compara-
tively on legal sector reform in socialist East Asia, and has previously been admitted as a
barrister and solicitor of the Supreme Court of Victoria.
Laurent Pech is Professor of European Law, Jean Monnet Chair of EU Public Law
at Middlesex University, UK, visiting professor of law at Bordeaux University and a
member of the editorial board of Hague Journal on the Rule of Law. His main areas
of expertise are EU Public Law and European Human Rights Law and main areas of
research are rule of law backsliding within the European legal space and rule of law
promotion in the context of the EU’s external action.
Mariana Mota Prado is an Associate Professor at the Faculty of Law, University of
Toronto and Associate Dean (Graduate Studies). She has published extensively on law
and development, including two co-authored books with Michael J. Trebilcock: What
Makes Poor Countries Poor? Institutional Determinants of Development (2011) and
Advanced Introduction to the Law and Development (2014). She has taught at the Centre
for Transnational Legal Studies in London, the FGV Law School in Brazil, ITAM Law
School in Mexico, Los Andes Law School in Colombia, and University of Puerto Rico
School of Law.
Mona Rishmawi is the UN High Commissioner for Human Rights, Switzerland and is
the chief of the rule of law, equality and non-discrimination branch in the OHCHR.
In 2004–05, she served as the Executive Director of the UN International Commission
of Inquiry on Darfur. From 1996 to 2000, she was the UN Independent Expert on the
Situation of Human Rights in Somalia. From 1991 to 2000, she was the Director of the
Centre for the Independence of Judges and Lawyers of the International Commission
of Jurists (ICJ), Geneva, Switzerland. She practiced law from 1981 to 1991 in the West
Bank. She was the director of the human rights organisation al Haq from 1989 to 1990.
Christine Schwöbel-Patel is Senior Lecturer in Law and Director of the Critical
Approaches to International Criminal Law (CAICL) Research Cluster, University of
Liverpool, UK and a visiting researcher at Goldsmiths, University of London. She
researches on questions of international law with a special interest in international
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xii Handbook on the rule of law
c riminal law, global constitutionalism, the public/private dichotomy and critical peda-
gogy. At present, she is working on a book manuscript titled ‘Marketing Global Justice’,
a critique of the marketisation of global justice projects from the perspective of political
economy and aesthetics.
Lydia Brashear Tiede is currently an Associate Professor in the Political Science
Department of the University of Houston and a former attorney. Her interests include
constitutional courts and legal reform in Latin America and Eastern Europe. She also
conducts research on the rule of law and judicial independence in developing nations. Her
work has been published in International Studies Quarterly, World Development, and the
Journal of Empirical Legal Studies.
Valentina Vadi is a general international lawyer, with special expertise in international
economic law, international cultural law and the history of international law at Lancaster
University, UK. She has been recently awarded a European Research Council grant for
conducting research in the field of international economic law. Professor Vadi is the
author of Cultural Heritage in International Investment law and Arbitration (2014) and
Analogies in International Investment Law and Arbitration (2016).
Stefan Voigt is Director at the Institute of Law and Economics at Hamburg University.
His research focuses on the economic effects of constitutions. More specifically, current
research focuses on the economic effects of the judiciary. He has consulting experience
with both the public and the private sector, having worked with the World Bank, the
European Commission and the OECD but also with the European Round Table of
Industrialists (ERT). The German newspaper Handelsblatt ranks Voigt among the
Top-100 German speaking economists according to quality-weighted research output.
Clive Walker is based at the University of Leeds, UK. Professor Walker has researched
extensively on terrorism. His books include Terrorism and the Law (2011), The Anti-
Terrorism Legislation (2014), and the Routledge Handbook of Law and Terrorism (2015).
He was appointed in 2010 by the Home Office as Senior Adviser to the Independent
Reviewers of Terrorism Legislation and has participated in many Parliamentary studies.
Antje Wiener is based at University of Hamburg, Germany. She previously held chairs
of Political Science and International Relations at Queen’s University Belfast and the
University of Bath. She has served as Managing Director of the Centre for Globalisation
and Governance in Hamburg and is a founding editor of Global Constitutionalism
(Cambridge since 2012). She was awarded a Fellowship of the Academy of the Social
Sciences in the UK in 2011 and, in 2017, she was elected as By-Fellow at Hughes Hall
Cambridge.
Peer Zumbansen holds the inaugural Chair in Transnational Law at King’s College
London, where he is the founding Director of the Transnational Law Institute and the
Programme Chair for the King’s Transnational Law Summit 2018. He held a Canada
Research Chair at Osgoode Law School in Toronto from 2004–14.
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Introduction to the Handbook on the Rule of Law
Christopher May and Adam Winchester*
The rule of law is one of the few (global) norms that few if any would go on record as
doubting; indeed it is difficult to imagine a world in which the rule of law was rejected
and the good life was maintained. This is not to necessarily claim that the rule of law is
indispensable, but rather to note that the norm itself has reached the status of a global
common sense.1 This handbook explores the range of ideas and issues that the initially
simple sounding term the ‘rule of law’ encompasses; as such it is intended to help readers
knowing relatively little about the norm to explore and appreciate the range of debates
about what the rule of law is and how it might work. Certainly, in jurisprudential writings
and legal studies there is a well-established body of literature discussing the rule of law
and its political or legal character and/or implications, but these discussions have seldom
reached out beyond law’s own (technical) community. The major exception is Lord
Bingham’s book on the subject which was published by a trade publisher (Allen Lane/
Penguin) and was widely reviewed in the broadsheet and general political news media;2
hence later in this introduction we use this as a basis for an inclusive baseline definition
of the rule of law to provide readers with a starting point for the varied discussions set
out by our contributors.
At the heart of this project is the view that many non-legal researchers, and non-lawyers
interested in regulation and/or governance, as well as non-academics working in civil
society organisations, and government officials, would value a single volume resource
where the range of issues that lie beneath the water of the great rule of law iceberg can
be easily accessed. Thus, to be clear, this volume is not intended to tell lawyers much they
do not already know, although they may too find the breadth of discussion in a single
volume of some use; rather it is for the non-adept who would like to know more about a
term that is often deployed as if we all know what it means, but which is seldom stipulated
as part of those discussions.
Before we give the floor to our various contributors who we have asked to examine
specific issues around the rule of law, in this introduction we will set the scene in a way
which we hope will allow those with an interest in, but who perhaps have had little
exposure to the debates around the rule of law, to get a clear idea of our starting point.
Therefore in the next section we review (albeit relatively briefly) the rhetoric of the rule of
law, before then setting out Bingham’s very helpful and inclusive definition of the norm.
We then widen this focus to discuss perhaps the most ambitious project to both define and
assess the rule of law in the contemporary global system: the World Justice Project’s Rule
* All websites live at 23 November 2017.

1
May, Christopher The Rule of Law: The Common Sense of Global Politics Cheltenham:
Edward Elgar Publishers, 2014.
2
Bingham, Tom The Rule of Law London: Allen Lane, 2010.
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2 Handbook on the rule of law
of Law Index. The final section, while not offering a guide to the chapters, is intended to
offer an overview of why we commissioned these particular chapters. We hope this will
help readers see how the diverse range of interventions in the subject collected together in
this handbook are relevant not only to the issue at hand but to each other.
THE RHETORIC OF THE RULE OF LAW
The rhetoric of the rule of law is particularly pervasive and often deployed in political
discussions as a criterion of critical evaluation. A common line of political critique
is the negative impact on the rule of law of a particular action, legislative move or
continuing political practices: ‘doing X undermines the rule of law’. Elsewhere, May
has argued that the rule of law has become a ubiquitous common sense appealed to
across the political spectrum, but with little agreement on its substantive meaning.3
Indeed, it is not uncommon to find both sides of a dispute claiming the rule of law
supports their actions/positions while at the same time arguing the other side is violat-
ing the norm. In an attempt to stabilise its meaning some international organisations,
most notably the United Nations and the European Union, have sought to assert
control over its definition through the deployment of an authoritative ‘script’ across
a range of communicative actions.4 This has had some impact in official pronounce-
ments, where official reports’ definitions are referenced in subsequent discussions, but
the use of the term outside these agencies of global governance remains flexible and
indeterminate.
As this might suggest, the popular rhetoric of the rule of law exhibits two oppos-
ing tendencies: on the one hand the rule of law is an increasingly ubiquitous political
terminology, the term is frequently invoked in the news media, in political discourse, by
oppositional pressure groups and in debates about what is wrong with other countries;
however, on the other hand there is also a notable lack of discussion of the meaning
or definition of the term outside the specialised jurisprudential literature, resulting in
it being taken for granted, with the inferred supposition that its (political) meaning is
secure. In many ways this central ambiguity underpins its political deployment, it is at
once both generally accepted as a normative value (in its rhetorical use) while also covering
a wide range of legal settlements which may diverge from each other quite significantly.
The term’s indeterminacy allows its widespread use while also resulting in its evaluative
role remaining contested and limited in practice. One might say it functions both as an
invocation of ‘civilisation’ and as a site of negotiation as regards the character and/or
actuality of what it is to be ‘civilised’. As Nasser Hussain has argued, the rule of law (in
its specifically British form) is intertwined with the racial politics of British colonialism
and the civilising mission of Empire.5 In a less critical manner, popular historian Naill
Fergusson once referred to the rule of law (in a triumph of anachronism) as one of the
3
May The Rule of Law.
4
Taylor, Veronica L. ‘Regulatory rule of law’ in: P.Drahos (ed.) Regulatory Theory:
Foundations and Applications Acton: Australian National University Press, 2017: p.398.
5
Hussain, Nasser The Jurisprudence of Emergency: Colonialism and the Rule of Law Ann
Arbor: University of Michigan Press, 2003.
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Introduction 3
‘killer aps’ of civilisation.6 The rule of law is the route to civilisation, shaping the form of
civility established, but at the same time may mask the unequal distribution of its benefits.
While popular politics has little engagement with the jurisprudential debates, the
more general notion of the importance of the rule of law has much more salience and
has considerable political rhetorical purchase (not least as it is amenable to quite radical
simplification). Moreover, this may relate to popular conceptions of what constitutes a
countries’ political character, with many developed states announcing that they abide by
the rule of law when contrasting their actions to others’.7 Indeed, one aspect of what is
sometimes referred to as the neoliberalisation of the global political economy is not the
abandonment of the rule of law, but rather its shift to an instrumental technology of
economic governance, and away from an emphasis on its support for political justice.8 The
rule of law becomes the terrain over which market-enabled competition between individu-
als takes place without recourse to wider issues of equality and justice, but is also a badge
of the refinement and accomplishments of the modern developed state. In the terms
we deploy in the next section, this is to say the rule of law is becoming thinner, but the
widespread rule of law talk may depend on thicker implications for its rhetorical strength.
The notion of the rule of law certainly has significant popular currency. For instance,
in the trailer for the film of the stage play Frost/Nixon, a quote from the original interview
of May 19th 1977 was used, and spoken by the actor playing President Nixon: ‘When the
President does it, that means that it is not illegal.’ Clearly intended to be a shock by virtue
of David Frost’s in-film response, and where it was placed in the trailer, this suggests how
widely the norm of the rule of law is valued in opposition to the rule of the individual, or
as more commonly put the rule of men. Thus, the norm may be widely accepted, even by
those who would probably find it difficult to describe its more formal dimensions. Indeed,
as the administration of President Donald Trump has gone from one public dispute to
another, the call has often been for the return to the rule of law, with some commentators
explicitly linking Trump and Nixon’s disregard for the rule of law in the former’s recent
pronouncements and actions.
Nor should we forget that law and its practices have become a key element in popular
culture: US TV series such as Perry Mason, Boston Legal, Law & Order, The Good Wife,
Ally McBeal and LA Law,9 as well as UK series like Rumpole of the Bailey, North Square,
Silk, Judge John Deed, Kavanagh QC have all aired on primetime TV and have no doubt
contributed to the familiarity many have with legal terminology and even legal debates.
Indeed in her presidential address to the Law and Society Association in Glasgow 1996,
Susan Silbey suggested that through such programmes the ‘practices and ideals of the law,
6
Ferguson, Naill Civilisation: The Six Ways the West Beat the Rest London: Allen Lane, 2011.
7
Loomis, Andrew Joseph ‘Legitimacy norms as change agents: examining the role of the
public voice’ in: R.Falk, M.Juergensmeyer and V.Popoovoski (eds) Legality and Legitimacy in
Global Affairs Oxford: Oxford University Press, 2012: p.87.
8
Brown, Wendy Undoing the Demos: Neoliberalism’s Stealth Revolution New York: Zone
Books, 2015: p.67; here is not the place to explore the debates about neoliberalism, but good discus-
sions can be found in: Brabazon, Honor (2017) (ed.) Neoliberal Legality: Understanding the role of
law in the neoliberal project Abingdon: Glass House/Routledge, 2017 and Eaglton-Pierce, Matthew
Neoliberalism (Routledge Key Concepts) London: Routledge, 2016.
9
For the top 25 legal TV series as voted for by the American Bar Association see: http://www.
abajournal.com/magazine/article/the_25_greatest_legal_tv_shows/ (accessed 5 June 2017).
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the history and the fictions, become part of the engagement between social movements
and corporate capital in diverse corners of the globe’.10 If one might doubt the legal
impact of TV programmes, Phillipe Sands has identified the role that the Fox TV series 24
played in contributing to the belief that torture was both effective and (legally) acceptable
at Guantanamo Bay prison camp. As he makes clear in a number of places in Torture
Team both military personal and government legal advisers were enthusiastic watchers of
24 and explicitly referred to it in their discussions with Sands about procedures of inter-
rogation at Guantanamo. This is not to claim a direct causal link but as Sands suggests it
(de)sensitised various individuals to the illegitimacy of torture, indicating some influence
over their views of the (rule of) law.11
Moreover, all this talk of the rule of law has led anthropologists John and Jean
Comaroff to observe that it ‘is not unusual any more to hear the Euro-language of
jurisprudence in the Amazon or Aboriginal Australia. Or among the poor of Mumbai,
Madagascar, Cape Town and Trench Town’.12 In their overview of anthropological stud-
ies of governance they find numerous and widely spread examples of the shift of politics
into the law, and the use of the idea(s) of the rule of law as a language through which
the poor now often articulate their political demands. For instance, in political upheavals
around the treatment of the judiciary in Pakistan, Abdullah Freed Khan has noted that
across the country in interviews with farmers, workers and others mobilising behind the
popular lawyers’ movement, the idea of the value of the rule of law had considerable
popular currency.13 This is also reflected in the reception of the work of Hernando de
Soto and the Commission for the Legal Empowerment of the Poor (discussed by Dan
Banik in Chapter 25); de Soto’s work has been much debated and again has expanded the
recognition of the idea of the rule of law in the analysis of development and economic
inequality.
To give one further example, and summarising an extended analysis May has published
elsewhere, we would also note the growth in the use of the term ‘the rule of law’, and use
of elements of its normative content in the OpEd section of the Economist over the last
40 years.14 The Economist is one of the few magazines that can make a reasonable claim
to be a global publication, and although it is clearly not part of the ‘popular press’ it has
consistently positioned itself as the journal of record for the global business elite. Indeed,
Martha Starr has argued that it seeks to develop for its readers an authoritative view of
the globalised economy.15 The Economist’s articulation of the rule of law in the twenty
10
Silbey, Susan S. ‘“Let Them Eat Cake”: Globalization, Postmodern Colonialism, and the
possibilities of Justice – 1996 Presidential Address’ (1997) 31(2) Law and Society Review 207–35,
at p.221.
11
Sands, Phillipe Torture Team: Deception, Cruelty and the Compromise of Law London: Allen
Lane, 2008: pp.73–4; 87–9; 272.
12
Comaroff, John L. and Comaroff, Jean ‘Reflections on the Anthropology of Law,
Governance and Sovereignty’ in: F.von Benda-Beckman, K.von Benda-Beckman and J.Eckert
(eds) Rule of Law and Laws of Ruling: On the Governance of Law Farnham: Ashgate, 2009: p.34.
13
Khan, Abdullah Freed ‘The Pakistani lawyers’ movement and the popular currency of
judicial power’, (2010) 123(7) Harvard Law Review 1705–26.
14
May Rule of Law, pp.xx–xxv.
15
Starr, Martha ‘Globalisation in popular media and through The Economist’s lens:
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Introduction 5
years either side of 1989 (the end of the Cold War), offers some interesting evidence of
the normalisation of the rule of law as a global common sense.
The rule of law may not be central to the concerns of The Economist but it is easy to
see an expansion of its interest across these 40 years. At the beginning of this 40-year
period The Economist seemed relatively uninterested in the rule of law, but by the 1990s,
there is a shift both in the frequency of discussions of the rule of law, and their focus.
Editorials start to make the link between law and development much more explicit and
the rule of law is presented as a multidimensional norm, including politics, law and
economic aspects. Most obviously, during the 1990s editorials increasingly set out the
need for reform in other countries to facilitate their economic development and (re)
integration into the international economic system; this is to say for The Economist the
rule of law has now become a key element of the global political economy. Moreover,
while earlier in the period it was felt necessary to (even if briefly) stipulate what the
rule of law might be, by the second decade of the new millennium, The Economist felt
confident of its readers’ knowledge to just deploy the term with no attendant definition
or elaboration. In presenting the rule of law as a vital component to the contemporary
global political economy, The Economist has certainly contributed to, and reflected, the
move to recognise law as contributing to progress and development; in the last 20 years it
slowly normalised its treatment of the rule of law. The editors now just assume you know
what they mean when they write the ‘rule of law’; they expect readers to have become
acclimatised to the rule of law.
However, this appeal to the idea of rule of law is not limited to the (global) political
economy; its normative influence spreads much further. In summer 2011 after a contro-
versy regarding the conduct of an English cricketer, James Lawton of the Independent
entitled his discussion of the day’s troubles: ‘Rule of Law is trampled on to protect
“spirit of the game”.’16 The discussion did not invoke the norm in any detail, but clearly
assumed that the rule of law itself (including the ‘laws’ of cricket) is an important value
to be upheld. Perhaps more in line with normal usage, one also finds much commentary
on the disputes among the smaller countries that are seeking to resist Chinese actions
in the South China Seas, citing one government or another demanding a return to the
(international) rule of law over the sea’s many disputed islands. Elsewhere, much of the
discussion of recent political developments in Poland and their relation to the country’s
membership of the European Union have been expressed as issues around the respect for
(and violation of) the rule of law.
This is to say, more normally the appeal to the rule of law is focussed on the political
realm, whether (in the UK) it was controversy over Archbishop Williams comments on
Sharia law (leading to critics invoking the rule of law against such legal pluralism), or
complaints about the UK government’s suspected complicity in the illegal rendition of
terrorist suspects for interrogation. From discussions of the reach of News International’s
control of the press to the role of twitter in libel cases; from the death of UK nationals
nowledge, representations and power’, in D.F. Ruccio (ed.), Economic Representations:

k
Academic and Everyday, London: Routledge, 2008: p.35.
16
Lawton, James ‘Rule of Law is trampled on to protect “spirit of the game”.’ The Independent
1st August 2011: [available at: http://www.independent.co.uk/sport/cricket/james-lawton-rule-of-
law-is-trampled-on-to-protect-spirit-of-the-game-2329584.html (20th July 2016)].
M4581 - MAY_9781786432438_t.indd 5 01/08/2018 14:47

in foreign countries (such as the investigation of the murder of Neil Heywood in China
in 2012) to discussions of corporate power, it is seldom long before someone refers to
the rule of law as the standard against which behaviour and practices should be judged.
Finally, it is worth noting that the contemporary rhetorical strength of the rule of law
articulated and promoted by key international agencies also encourages states to adopt
this language or terminology (even if their actions may fall short); to celebrate being a
state that does not accept the rule of law no longer seems to make much sense. As Shirley
Scott and Olivia Ambler observe:
States often demonstrate their acceptance of the ideology of international law by referring in
their rhetoric to the ‘rule of law’. . . [but this] ideology of international law is integral to the
international distribution of power, and hence the rhetorical emphasis that the US has for many
decades placed on the importance of the rule of law has served not only to strengthen interna-
tional law but [also] to reinforce a source of legitimacy on which the US has frequently drawn.17
The rhetoric may serve different states’ governments differently, with some using it to
demonstrate an interest and willingness to be seen as part of the ‘international com-
munity’ while more powerful states (most obviously the United States) use the rule of law
as a method to legitimate their position.
It is possible that the expansion of the rhetoric of the rule of law is a response to
perceived illegality (and its costs) in the now globalised political economy. If ‘deviant
globalisation’ is as widespread as some commentators believe,18 and criminal activities are
integral to the flows and structures of the global political economy,19 then one response
would be for governments to ratchet up the calls for the rule of law globally. This would
especially be the case as black markets and illegal activity, centred on morally suspect
services and products (drugs and the sex trade) are frequently an adjunct to ‘legitimate’
globalisation. Of course, in one sense it is the rule of law itself that ‘produces’ the criminal
activity, by establishing the distinction legal/illegal, but its rhetorical use also leaves aside
political discussions about the value or otherwise of prohibition or the question of what
encourages such activity, to focus on issues of enforcement, security and stability. Here,
the rhetoric of the (lack of) rule of law becomes a way of summarising problems in the
international system that stem from the ability of criminal actors and organisations to
enjoy sanctuary from which they can operate across the global system. The use of the
rhetoric of the rule of law to identify the ‘lawless’ has been abiding theme of US politi-
cal development: repeatedly ‘lawless others’ have been subjected to domination and/or
violence in the service of the greater civilising project of manifest destiny.
To a large extent the rhetoric we have briefly discussed in this section is generated and
used by the media, and one might regard this as a reflection not so much of social norms
as the normative concerns of social elites. While there has been much less work conducted
17
Scott, Shirley V. and Ambler, Olivia ‘Does legality really matter? Accounting for the decline
in US foreign policy legitimacy following the 2003 invasion of Iraq’ (2007) 13(1) European Journal
of International Relations 67–87 at pp.72, 74.
18
See for instance Gilman, Nils, Goldhammer, Jesse and Weber, Steven Deviant Globalization:
Black Market Economy in the 21st Century New York: Continuum, 2011.
19
Friman, H Richard (ed.) Crime and the Global Political Economy (IPE yearbook Volume 16)
Boulder: Lynne Rienner Publishers, 2009.
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Introduction 7
on the everyday narratives of the rule of law,20 once we have offered an inclusive definition
we turn to the World Justice Programme’s ambitious and extensive attempt to identify
the commitment to, and valuing of the rule of law in wider populations. While this may
remain partial it does suggest, a considerable level of non-elite valorisation of the rule of
law as the common sense of politics.
AN INCLUSIVE DEFINITION OF THE RULE OF LAW
While accepting that part of the logic of this handbook, as well as the underlying
implication of the discussion above is there is no easily established definition of the rule
of law that would garner widespread and uncritical support, nevertheless we need to
start somewhere a little more specific than the usual invocation of the norm with little
contextual discussion. At its most basic we might contrast the rule of law to the rule of
men; as Gianluigi Palombella puts it:
law can satisfy the rule of law ideal when ‘rule of men’ turns out to be legally channelled, up
to a point where the ruling power would face some other man made rule and legal institutions
sufficiently stable to prevent a monopoly on legal production and contents.21
This is to say, individuals mobilising the rule of law, for instance judges or legislators,
always at some point abut up to limitations of discretion and action under the rule of law.
However, while this distinction would likely generate widespread acquiescence, we also
need to go beyond this position if we are to understand the norm in any detail. Therefore,
partly due to its life beyond law schools and legal practice, we start with the inclusive
notion of the rule of law that Lord Bingham set out in his book of the same name.
The reason we deploy Bingham’s depiction of the rule of law is twofold: first, working
in an extended tradition that can be traced back a couple of centuries at least, Bingham’s
work is anchored in the disciplinary discussion that has been subsequently globalised, not
least by his work as Lord Chief Justice in the UK; secondly, Bingham’s final intervention
in these debates explicitly sought to set out his views on the content of the norm of the
rule of law for a non-legal, or even a popular audience. As such his definition acts as a
good bridge between the legal and the common-sense understandings of the rule of law
that this volume is intended to construct.
Tom Bingham did not seek to establish a simple definition of the rule of law but rather
to introduce the non-legal reader to the range of issues that are encompassed by the
term, and which it is vital for them to understand. To this end he starts his account with
a short and schematic history focusing on 12 moments he regards as vital to the develop-
ment of the rule of law: starting with Magna Carta 1215, and ending with the Universal
20
On the developing approach to everyday narratives in world politics see Stanley, Liam and
Jackson, Richard ‘Introduction: Everyday narratives in world politics’ (2016, special issue) 36(3)
Politics 223–5.
21
Palombella, Gianluigi ‘The rule of law as an institutional ideal’ in: L.Morlino and
G.Palombella (eds) Rule of Law and Democracy: Inquiries into Internal and External Issues Leiden:
Brill, 2010, at p.10.
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Declaration of Human Rights in 1948.22 Unlike Harold Berman, who traced the origins
of the norm to the Papal Revolution of the twelfth century,23 Bingham prefers to keep
his history firmly located in the British legal tradition, partly as recognition of the central
rhetorical role of A.V. Dicey.24 Bingham’s is not so much the history of the norm itself, but
an account of its ascendance to a central ideal of (British) liberal politics (which is also
discussed at length in John Allison’s chapters in Part II). Nevertheless the key point here
is that the rule of law only really makes sense as a norm if it retains a significant historical
continuity, even as it has developed as a norm. This ‘enduring continuity with its own past’
as Palombella argues, acts as a buttress against any ‘alleged coincidence with the exclusive
substance of one contemporary ideology’ be it liberal or otherwise.25 This is to say, while
the rule of law has its own (varied and multiple) history it must also be understood as
politically transcendent; a (now) global norm.
Bingham sets out a range of issues that together can be said to constitute the rule of
law as such a global norm. In a series of short chapters he proposes eight key components
of the rule of law which he regards as making up a rounded or inclusive understanding
of the idea or norm:
1. ‘The law must be accessible and so far as possible intelligible, clear and predictable.’
We can hardly expect law-abiding behaviour if it is impossible for those so governed
to ascertain what the law actually is.26
2. ‘Questions of legal right and liability should ordinarily be resolved by application of
the law and not the exercise of discretion.’ This is not to argue that there can be no
discretion, only that any discretion must be exercised within the bounds of the law;
no decisions should be arbitrary and without recourse to some law or another.27
3. ‘The laws of the land should apply equally to all, save to the extent that objective
differences justify differentiation.’ All must be equal before the law, with no distinc-
tion between, for instance the rich and the poor, the weak and the powerful. Where
the law distinguishes responsibility by age, there may be some reason to treat people
differently, but only when these differences are ‘objective’ and not social, political,
or economic (most importantly he is arguing against discrimination by race and
gender).28
4. ‘Ministers and public officers at all levels must exercise the powers conferred on them
in good faith, fairly, for the purpose for which the power were conferred, without
exceeding the limits of such powers and not unreasonably.’ This is intended to under-
pin judicial review, so that the state can be held accountable to the laws Parliament
has enacted and does not go beyond that democratically grounded intent.29
22
Bingham Rule of Law, pp.10–33.
23
Berman, Harold J. Law and Revolution: The Formation of the Western Legal Tradition
Cambridge, Mass: Harvard University Press, 1983: pp.94–9.
24
Bingham, Rule of Law: pp. 2–5.
25
Palombella, ‘The Rule of Law as an Institutional Ideal’: pp.17–18.
26
27
Ibid., pp.48–54.
28
Ibid., pp.55–9.
29
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Introduction 9
Up until this point Bingham’s elements are essentially procedural; requiring little or no
judgement of the content of the law, they are compatible with a thin depiction of the
norm. This sort of thin definition is often preferred by those who wish to ensure the law is
uncontaminated by politics (or social norms) and can reflect the common legal grounds of a
diverse range of societies. Even the invocation of objective differences under point three can
hardly be said to be normative towards a liberal sense of equality, as ‘objective’ differences
are often in the eye of the (political) beholder; for instance racists see differences between
ethnicities as objective. These elements can often be differently ordered: to take one example,
Postema puts Bingham’s fourth element right at the centre of his depiction of the rule of
law, making accountability (understood as a reciprocal recognition of the law by rulers and
ruled) a vital and necessary element of the rule of law.30 The next four elements of his depic-
tion move Bingham firmly towards a more substantive or thicker reading of the rule of law.
5. ‘The law must afford adequate attention to fundamental human rights.’ Bingham
explicitly rejects the thin reading of the rule of law, spending some time exploring
various articles of the European Convention on Human Rights. For Bingham,
the rule of law cannot be said to obtain where the procedures of law explicitly are
intended to underpin injustice.31
6. ‘Means must be provided for resolving, without prohibitive cost or inordinate delay,
bona fide civil disputes which the parties themselves are unable to resolve.’ This
extends the point about accessibility; if effective representation is blocked by costs
to all but wealthy defendants then the law is not treating all equally. He offers a clear
defence of legal aid and expeditious legal process as crucial to the maintenance of
the rule of law. Given questions about the impact of economic inequality and the
measures needed to ameliorate these difficulties, this element reflects a political
position about the good society which evokes issues of extra-legal inequality.32
7. ‘Adjudicative procedures provided by the state should be fair.’ The judiciary and legal
profession must be independent of the state, allowing both sides (prosecution and
defence) a fair trial. The defendant must know the charges against him or her and
be able to properly interrogate the evidence. Given this requires a judgement about
political organisation rather than the procedures of the law itself, again this might be
regarded as a thicker reading of the rule of law.33
8. ‘The rule of law requires compliance by the state with its obligations in international
law as in national law.’ Here, Bingham expands his purview from the previously essen-
tially domestic orientation of his discussion to argue that the state’s obligations do not
end with its own law, but rather extend to the realm of global politics. This includes
his invocation of human rights, but also the rules of war and other international
regulatory arrangements. Bingham does not recognise a moral difference between
politics inside and outside the state.34
30
Postema, Gerald J. ‘Law’s Ethos: Reflections on a Public Practice of Illegality’ (August 2010)
90 Boston University Law Review 1847–68.
31
32
Ibid., pp.85–9.
33
Ibid., pp.90–109.
34
Ibid., pp.110–29.
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The discussion of these elements of the rule of law is intended to demonstrate that the norm
itself is multifaceted but also that for Bingham merely recognising procedural norms should
not be sufficient for any state to be accorded the recognition of being governed by the rule
of law. More generally, any particular claim that the rule of law obtains in a particular socio-
political context might be best understood as sitting on a continuum which runs from the
thinnest view of the rule of law one might imagine (a series of legal procedures largely, but
not completely shorn of any normative content) to the thickest view (where social justice,
equality and claims of specific social value are encompassed by the law). The movement
between these two nodes might be regarded as starting at the thinnest end with merely a
normative concern for order, and with further norms added to legal instruments as the
position moved toward the thicker end. As this reveals there are a wide range of positions
along this continuum that might be regarded legitimately as reflecting the rule of law.
However, despite the relative complexity hiding behind the simple term ‘the rule of
law’ the epistemic community of lawyers (a community of practice that has promoted
the notion of legality across the various fora of global politics) has established the rule
of law as a multipurpose and non-political social technology.35 The world view of law,
or perhaps the grammar of the rule of law,36 reflects socialisation into the rule of law
as a common sense of global politics. That this common sense is inclusive, multifaceted
and indeterminate creates a range of issues that are discussed in various chapters in this
handbook. More immediately it also raises a question of assessing when and where the
rule of law might exist (or not exist).
THE RULE OF LAW, MEASUREMENT, AND THE RULE OF LAW

INDEX
One might assume that given the manner in which the rule of law is so often utilised in
political discussions as an evaluative norm, there would be a relatively consensual way of
measuring its existence or extent. However, this is not the case; there are many ways of
trying to measure the rule of law (as Tom Ginsburg will discuss in Chapter 3), but none
have reached anything like the general level of acceptance that other social measures have
achieved. In this section we briefly introduce one important and developing project to
establish a global measure of the incidence of the rule of law.
I shall not today attempt further to define the kinds of material I understand to be embraced
within that shorthand description, and perhaps I could never succeed in intelligibly doing so . . .
but I know it when I see it. . ..
If only Supreme Court Justice Potter Stewart’s admonition for quantifying obscenity in
Jacobellis vs Ohio37 was enough to satisfy our need to recognise and measure the rule of
35
May Rule of Law, p.72.
36
D’Aspermont, Jean Epistemic Forces in International Law Cheltenham: Edward Elgar, 2015:
p.10.
37
Jacobelli vs Ohio https://supreme.justia.com/cases/federal/us/378/184/case.html (20th Novemb
er 2017).
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Introduction 11
law. Certainly, it is clear that researchers desire ever more accurate data on the rule of law,
not least to allow comparison and commentary as well as underpinning further theories
of what the rule of law’s social role might plausibly encompass.
Fortunately, the rule of law (or at least its constituent parts) lends itself easily to quan-
tification, as long as we are addressing what is commonly referred to as the ‘thin version’
of the rule of law.38 As Jørgen Møller notes in Chapter 1, taking the principles of Joseph
Raz or Lon Fuller regarding formal legality, one might say the core of the rule of law can
be easily quantified.39 The number of judges per capita could give a clear numeric value
to a question about the amount of access to justice. We might say the percentage of cases
returned on appeal and subsequently overturned by higher courts provides an indication
of the levels and effectiveness of the judiciary’s independence. Determining whether laws
are proscriptive, clear, and well promulgated is an exercise in quantification, related to
textual assessment and coding, with little subjective input, as results based on accepted
modes of clarity and inclusivity can be simply counted and tabulated.
However, as the definitions of the rule of law begin to incorporate ‘thicker’ and more
substantial versions,40 with more constituent parts, then the possibility of measurement
becomes fuzzier as the perspective shifts from aspects one might regard as objective to
those that are clearly subjective. Measuring a country’s human rights performance or
the participation of the population in the civic or political spheres is not the same (or as
simple) as counting how many judges or lawyers a country may have registered. Certainly,
the thin view allows a relatively accurate snapshot of a country’s formal and legalistic
parameters, of potential use to those legal/lawyer based-civil society organisations of vari-
ous sorts in the field of promoting and advising on formal legal practice and organisation.
However, the accuracy and meaningfulness of an assessment of a thicker set of normative
elements generally degrades as attempts to codify and quantify the subjective aspects of
interest to social scientists are added to the range of metrics being assembled.
Therefore, the conundrum is that the thin perspective offers the most accurate account-
ing in formal terms but fails to really measure what is of most interest to political and
social scientists. When those parameters are inputted the results become less reliable,
more open to interpretation, and more vague which is exactly what most researchers
and analysts are seeking to avoid with any measurement tool. However, a decade ago,
the World Justice Project (WJP),41 offered the tantalising prospect of producing a more
definitive and authoritative measure of rule of law outcomes across the globe.
Prior to the Rule of Law Index (and just before the ‘rule of law’ became an important
element of the political zeitgeist), one could find the rule of law’s constituent parts
measured or quantified, but spread across various published indices leaving one to, in
effect, aggregate one’s own ‘snapshot’ of a country’s rule of law situation. Researchers and
analysts could and did refer to; Transparency International’s Corruption Index42 to gauge
corruption; the World Bank’s Ease of Doing Business Index43 to measure regulatory and
38
This volume. Chapter 1.
39
Ibid.
40
This volume. Chapter 2.
41
https://worldjusticeproject.org/.
42
https://www.transparency.org/country.
43
Ibid.
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administrative efficiency in the protection of property rights; the World Bank’s Worldwide
Governance Indicators44 to quantify government accountability, political stability, and the
effectiveness of civil society; Freedom House’s Freedom in the World Reports45 to include
press freedoms; and the Economist Intelligence Unit’s Democracy Index46 for a measure
of a country’s democratic mien. Armed with this data (and a general knowledge of
international current affairs) the analyst could assemble a relatively robust overview of a
country’s health in factors pertaining to the rule of law.
Even though this method allowed anyone to parse the data to include rule of law
factors they deemed more important or noteworthy, it remained an inefficient and overly
cumbersome method. Reflecting the well-known difficulty of this assembling to produce
comparable data, the WJP developed its flagship report: The Rule of Law Index (of which
a bold claim to definitive authority is included in its very title).47 The Rule of Law Index
is an annual offering based on two separate but connected questionnaire surveys, one for
the general population and another for a country’s ‘experts’ (lawyers, legal profession-
als, judges, academics).48 The Index considers 44 measurable indicators based on eight
broader themes of:
● Constraints on government power

Assessing constitutional and institutional, formal and informal checks on govern-
ment power, whether that is by law or convention, in order to measure the extent to
which those that govern are subject to the same laws as the populace.
● Absence of corruption
Assessing the occurrence of bribery, influence peddling, or the misappropriation of
government funds, to measure levels of corruption in the Executive, the Legislature,
the Judiciary, or in Law enforcement.
● Open government
Assessing the quality of the information the government makes public, the right
to that information, the civic participation that information engenders, and the
mechanisms in place to petition of complain to the government so as to measure
the empowerment of the population in civic participatory action and policy
deliberations.
● Fundamental rights
Assessing the individual’s right to life and liberty, the security of the person, access
to due process free from discrimination, and the guarantee of the rights to freedom,
privacy, association, faith, and expression so as to determine that a limited core of
basic human rights are being guaranteed by the government.
44
https://data.worldbank.org/data-catalog/worldwide-governance-indicators.
45
https://freedomhouse.org/report/freedom-press/freedom-press-2016.
46
https://www.eiu.com/topic/democracy-index.
47
https://worldjusticeproject.org/our-work/wjp-rule-law-index.
48
It should be noted for sake of disclosure that both editors of this volume have been contribu-
tors to the Rule of Law Index (although with differing opinions regarding its efficacy and utility).
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Introduction 13
● Order and security

Assessing the absence of civil strife and the control of crime, as well as the redress of
grievances through formal channels rather than direct personal action or violence,
so as to measure the effectiveness of the government’s action in securing both
persons and their property.
● Regulatory enforcement
Assessing the enforcement of government regulation and the speed and quality of
administrative action and redress so as to measure the extent to which both legal
and administrative regulations are fairly applied.
● Civil justice
Assessing whether the access to and outcomes of civil justice are timely, afford-
able, enforceable, impartial, and effective so as to measure whether the system in
place facilitates the peaceful and effective resolution of grievances by the ordinary
population.
● Criminal justice
Assessing if the criminal, investigative, and correctional facets of the justice system
are effective, timely, and result in a reduction of criminal behaviour while being
impartial, incorrupt, and respecting due process so as to measure and evaluate the
criminal justice system as the conventional mechanism to redress grievances and
promote the security of the person and property.
Like any attempt at definition and measurement, the Rule of Law Index’s utility is defined
by the indicators that have been included and those which have been excluded. It is the
marquee product of the WJP and as such reflects their desire to create the most authorita-
tive and expansive index possible without sacrificing inclusiveness and usefulness; too
narrow a focus (aligned with a ‘thin’ view) retards the utility of the Index to political and
social scientists; while a focus more in line with the thicker view and reflecting the western
liberal model (including expansive human rights or democracy) may alienate certain
illiberal or undemocratic countries which would limit any claim of the Index being truly
representative as a global instrument of measurement. It is beyond the scope of this short
introduction to make an assessment as to whether the WJP has succeeded in balancing
these concerns and any political discussion of the success or otherwise of the project will
reflect these concerns as its time-series data becomes more potentially useful in assessing
changes in the global incidence of the rule of law.
Unsurprisingly, the Rule of Law Index is a reflection of its particular ‘parentage’ inas-
much as the WJP’s genesis is solidly located in the legal tradition, being the philanthropic
brainchild of former President of the American Bar Association and Lead Counsel at
Microsoft; William Neukom. However, there would be limited utility and authority if
the Index simply measured and reported on the formal and technical legal conditions
on the ground. To be relevant to a much broader audience the Rule of Law Index had to
reflect broader expectations, not just of the political and social sciences but of a general
(Western) population who would consider it irreconcilable that in quantifying the rule of
law, themes such as social justice and human rights were not included and accounted for.
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The WJP has therefore developed a definition of the rule of law which is then reflected
in the Rule of Law Index. This definition is an aggregate of what the WJP considers to be
four separate and universal principles:
1. Accountability
The government and private actors are both equally accountable under the law;
2. Just laws
The laws are clear, publicised, stable, and just; are applied evenly; and protect funda-
mental rights, including the security of persons and property and certain core human
rights;
3. Open government
The processes by which the laws are enacted, administered, and enforced are acces-
sible, fair, and efficient;
4. Accessible and impartial dispute resolution
Justice is delivered timely by competent, ethical, and independent representatives and
neutrals who are accessible, have adequate resources, and reflect the makeup of the
communities they serve.
It is interesting to note that of these four universal principles that the WJP identifies as
being their categorical definition of what constitutes the rule of law, only one (Just laws)
can be regarded as being from the normative ‘thick’ end of the spectrum, while three are
more representative of the thin formalistic and legalist view, and even that inclusion has
been qualified.49
In the end, how the WJP decided which indicators it uses and which it ignores is not
readily apparent nor explained, but given the range of debates about the rule of law,
all such decisions possess some degree of arbitrariness. We can be sure there are robust
technical reasons that human rights or democracy don’t figure more as constituent parts
of the Rule of Law Index, not least as there are already indices which purport to quantify
the human rights performance or levels of democratic efficacy within states. However,
taken to a logical conclusion, such a position would see the Rule of Law Index reduced
to measuring just the thin and legalistic account of a country’s rule of law performance,
rather than the broader, more authoritative index that the WJP clearly envisage as its
major contribution (and unique proposition). This leads to the question: why does the
WJP include only a limited accounting of some fundamental human rights but not
others, and why ignore democracy altogether as a category, preferring instead to measure
civic participation as an indicator under the rubric of Open Government which seems to
measure what democracy would entail without actually calling it ‘democracy’?50
As the terminology of the rule of law has escaped the technical realms of, first, the legal
profession, and then the political and social sciences, it has entered the consciousness of
both political actors and increasingly (via the media) what we might term global civil
society. Should there be a corresponding shift in what a rule of law index purports to
measure? Politicians and the media utilise the term ‘rule of law’ as, if not interchangeable
49
https://worldjusticeproject.org/our-work/wjp-rule-law-index.
50
Ibid.
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Introduction 15
with democracy, at least as a permanent adjunct, indivisible from its ideals with the
UN having declared: ‘human rights, the rule of law and democracy are interlinked and
mutually reinforcing and that they belong to the universal and indivisible core values and
principles of the United Nations’.51 So should the Rule of Law Index with its authoritative
and definitive title, reflect what we the end-users consider the rule of law to mean rather
than what the WJP think it should mean? In other words, does the Rule of Law Index
distort, to an unquantifiable and thus unacceptable degree, the value of its time series data
and extensive perception-based global research?
The Rule of Law Index is certainly imperfect and even the authors gave a nod to this
when they noted that:
. . .the findings should be interpreted in light of certain inherent limitations.
While the Index is helpful in taking the ‘temperature’ of the rule of law in the countries under
study, it does not provide a full diagnosis or dictate concrete priorities for action.52
Whether it is the indicators selected or ignored, the ‘inherent limitations’ of canvass-

ing entire countries and condensing the qualitative data into quantitative form, or the
reductionism of distilling these reams of country data into a single numerical rank, any
approach to such a global task will be flawed. What may be of greater importance is the
divide between the potential end-users: there are those who believe that it is better to have
some data produced (regardless of the flaws) and then there are those who feel the una-
voidable flaws (which often cannot be fully accounted for) mean that any results from such
data would be too unreliable to draw meaningful conclusions. In the end, for readers of
this volume, the best thing is to examine the Index yourself and make of it what you will.
Perhaps in the end this is a question of the utility, not just of the Rule of Law Index but
of measurement indices in general; on one side, there are academics and researchers who
value the data and time-series which can underpin analysis, the development of models
and theories of the rule of law and can help the development of publications (as we know
required within the academy). On the other side are the practitioners and professionals
‘in the field’, who may be less forgiving of flawed or generalised data, especially when the
use of such metrics to compare national projects and programmes would have tangible,
real world effects on real communities and people. Here, we merely note that in the realm
of the rule of law the WJP’s index, with all its flaws represents the most detailed attempt
to provide a level of data, information and assessment that would be required if the
assertions tied up with the rule of law’s common sense invocation are to be assessed fully.
A (VERY BRIEF) GUIDE TO THE FOLLOWING SECTIONS/

CHAPTERS
As will be clear to the reader of this handbook the chapters we have commissioned take
a range of approaches to the rule of law and its connection with various (global) political
51
https://unchronicle.un.org/article/rule-law-and-democracy-addressing-gap-between-policies
-and-practices.
52
https://worldjusticeproject.org/sites/default/files/documents/WJP_Rule_of_Law_Index_201
1_Report.pdf p.2.
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issues. Broadly speaking our contributors have either approached the rule of law from
below (via detailed cases studies of specific examples of how the norm has played out)
or from above, seeking to establish the analytical place of the norm in a particular set of
legal and/or political issues. The important point is that there is no definite way of inter-
rogating the rule of law; when choosing one or other of the various approaches deployed
by our contributors, the reader needs to be aware of, and factor in the insights from the
other slices through the subject. Thus, the point of this volume is to help the (relatively)
new researcher interested in the rule of law to find a range of approaches in one place.
Thus, here we do not detail the arguments of each of our contributors in turn, but rather
briefly set out the logic of the organisation of the volume as a way of suggesting different
routes through the handbook.
In our first section we offer a range of approaches to defining the rule of law. Above we
have already offered what we have called an inclusive definition of the rule of law drawn
from the work of the late Lord Bingham, but in this first section we essentially muddy
the waters somewhat, but this is purposeful. Having offered some conceptual terra firma
in this introduction, the first section suggests that really there is much less that is fixed
about the idea of the rule of the law. Our contributors take a series of slices through the
subject, and the section is completed by Antje Wiener’s contextualisation of the rule of
law ‘problem’ in the wider field of norms research. This first section will help those new
to the debates about the rule of law get a feel for the contours and scope of these debates,
and perhaps most importantly offers a set of resources that will allow a definition to be
stipulated for particular and specific uses as required by any researcher seeking to develop
their own work on the rule of law.
This process of contextualisation is then taken up in the second section where the
history of the development of the norm of the rule of law is explored and revealed.
These four chapters are not intended to provide an established, singular and consensual
story of the rule of law, but rather, again, are intended to stress that as a norm even
its history is far from certain or even fixed. That the rule of law has a history, that
it is a social and political artefact is clear, and in these four chapters (including some
important new analyses by John Allison that we are privileged to have been able to
include here), the contested contours and shifting histories are laid out for readers to
assess and respond to in their own work. In some senses the history of the rule of
law is a history of forms of institutionalisation and so in the next section we move to
examine through six very differently focused chapters, how the rule of law interacts
with a number of important institutions from global governance to the epistemic
communities of law and legal education. Here we hope that our readers’ understand-
ing of the rule of law will be enhanced by an appreciation of its various and varying
institutional politics.
In the last two sections we present a wide range of studies in which our contributors
both offer a a series of contexts within which we can appreciate the impact of the rule of
law and some case studies that allow us to push the possibilities of analysing the rule of
law in a number of different directions. Overall these last two sections map out the terrain
over which much debate on the rule of law travels. Our intent in commissioning these
studies has been both to collect together some innovative and interesting research on the
rule of law and to demonstrate the various ways that rule of law research intersects with
other areas of social, political and economic research.
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Introduction 17
To be clear, we do not intend this volume to be read through in the order the chapters
are presented, rather the handbook is a resource for thinking about the contemporary
rule of law in different and contrasting ways. Surfing the index, dipping into chapters that
seem particularly salient at the time, we hope readers of these compelling contributions
will come away from the volume each time they open it with both useful insights and ideas
for pushing their own research into the rule of law in interesting and innovative directions.
This research handbook is not intended to present the last word on the rule of law, but
instead is intended to help scholars, researchers, analysts, commentators, and activists to
both appreciate the centrality of the rule of law as a common sense of (global) politics
to our everyday lives and political selves, and to understand its continuing indeterminacy
and contested character.
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M4581 - MAY_9781786432438_t.indd 18 01/08/2018 14:47
PART I
DEFINING THE RULE OF LAW
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M4581 - MAY_9781786432438_t.indd 20 01/08/2018 14:47
1. The advantages of a thin view
Jørgen Møller
The concept of the rule of law is notoriously difficult to pin down. As with democracy,
it is an essentially contested concept. This means that no general consensus about how
to define it is likely to be established and that any attempt to define it must consider a
series of different attributes.1 It is against this background that several recent works have
attempted to capture the variation in rule of law definitions via the use of typologies.2
These typologies serve to order different attributes, which have been associated with the
rule of law in prior scholarship. For instance, as illustrated in Figure 1.1 below, Møller
and Skaaning3 identify no less than five attributes of the overarching concept of the rule
of law.4
Formal legality entails that laws are general, prospective, clear, certain, and consistently
applied. Checks and balances can be understood in terms of what Guillermo O’Donnell5
terms ‘horizontal accountability’, i.e., an institutional system that sets power against
Concept Rule of Law
Attributes Formal Checks and Sovereignty Negative Positive

legality balances of the people rights rights
Note: Adapted from Møller and Skaaning, 2014, 21.
Figure 1.1 Attributes of the rule of law6
1
Gallie, W. B. (1956). ‘Essentially Contested Concepts’. Proceedings of the Aristotelian
Society, 56, 167–98; Waldron, J. (2002). ‘Is the Rule of Law an Essentially Contested Concept (in
Florida)’. Law and Philosophy, 21, 137–64; Collier, D., F. D. Hidalgo and A. O. Maciuceanu (2006).
‘Essentially Contested Concepts: Debates and Applications’. Journal of Political Ideologies, 11(3),
211–46.
2
E.g. Tamanaha, B. (2004). On the Rule of Law: History, Politics, Theory. Cambridge:
Cambridge University Press; Møller, J. and S.-E. Skaaning (2014). The Rule of Law: Definitions,
Measures, Patterns, and Causes. London: Palgrave Macmillan.
3
Møller and Skaaning, ibid.
4
This chapter draws on a number of points formulated by Møller and Skaaning, ibid.
5
O’Donnell, G. (2007). Dissonances: Democratic Critiques of Democracy. Notre Dame:
University of Notre Dame Press.
6
Note that this overview does not contain the attribute that might be termed ‘order’, reflecting
whether the citizens actually obey the rules. As I argue elsewhere (Møller and Skaaning, 2014),
this reflects an outcome- or result-oriented dimension, which differs from both the procedural and
substantive attributes identified in Figure 1.1.
21
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power within the state, such as in the form of independence of the judiciary and penalties
for political or administrative misconduct. Sovereignty of the people – or ‘consent’ as it
is often simply termed – means that the laws are formulated via the democratic channel.
Negative rights are the classical liberal rights such as freedom of expression and freedom
of association, whereas positive rights are social or welfare rights.7
This mapping drives home a simple but important point. As with other essentially
contested concepts, the rule of law is multidimensional and complex. Moreover, as Bedner
(in Chapter 2) points out, there is likely to exist an inherent tension between some of the
attributes that scholars identify as defining the rule of law.8 In fact, the notion that laws
are to be a product of democratic ‘consent’ potentially conflicts with all other attributes.
If the people are truly sovereign, making decisions via the democratic channel, the people
can tamper with everything from formal legality over checks and balances to freedom
rights (whether negative or positive). This is a core insight of Joseph A. Schumpeter’s9
renowned ‘realist’ theory of democracy, which I shall return to below. Numerous other
potential trade-offs can be identified as well, for instance, Friedrich Hayek has forcefully
argued that rights that seek to create social equality (‘positive rights’ in Figure 1.1) are
difficult to reconcile with formal legality because they give discretionary power to the
state institutions.
What are we, as researchers, to do in this situation? My point of departure in this
chapter is two-fold: on the one hand, we must recognise the essentially contested nature
of the rule of law; on the other hand, we still want to retain the possibility to do empirical
research on rule of law developments, their causes, and their consequences. This presents
us with a challenge, which is well reflected in the state of recent research on the rule of
law. Empirical analysis of this subject has flourished in recent decades, but because of
conceptual disagreements – and confusion – scholars have reached strikingly different
conclusions regarding inter alia the causes of the rule of law.10
What follows is an attempt to suggest a way out of this mess. One possibility, further
appraised in Bedner’s chapter, is to embrace complexity. In conceptual terms, this means
acknowledging the multidimensional (or ‘thick’) nature of the rule of law, which can then
be made an explicit part of the theorising of its causes and consequences.11 A thick defini-
tion of the rule of law is one which includes substantive aspects of the rule of law, e.g.,
democratic consent or the social outcomes stipulated by ‘positive rights’ in Figure 1.1.
7
See Møller and Skaaning, 2014, 17–20.
8
See also Barro, R. (2003). ‘Dictatorship and the Rule of Law: rules and Military Power in
Pinochet’s Chile’. In: Maravall, J. M. and A. Przeworski (eds) Democracy and the Rule of Law.
Cambridge: Cambridge University Press; Ferejohn, J. and P. Pasquino (2003). ‘Rule of Democracy
and Rule of Law.’ In: ibid.; Lauth, H.-J. and J. Sehring (2009). ‘Putting Deficient Rechtsstaat on the
Agenda: Reflections on Diminished Subtypes.’ Comparative Sociology, 8(2), 165–201.
9
Schumpeter, J. A. (1974[1942]). Capitalism, Socialism, and Democracy. London: Unwin
University Books.
10
See Haggard, S. and Tiede, L. (2013). ‘The Rule of Law in Post-Conflict Settings: The
Empirical Record’. International Studies Quarterly, doi: 10.1111/isqu.12103; Møller and Skaaning,
2014.
11
See Coppedge, M. (1999). ‘Thickening Thin Concepts and Theories’. Comparative Politics,
41(4), 465–76; Coppedge, M. (2012). Democratization and Research Methods. Cambridge:
Cambridge University Press.
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The advantages of a thin view 23
Empirically, a ‘thick’ approach to the rule of law entails finding ways of aggregating
across different attributes.12 This approach has several strengths: it allows us to appreciate
that the rule of law is multidimensional to most of those who refer to it and it enables us
to work with ‘thicker’ theories.13
However, there is another possibility; namely, to tease out specific properties contained
in the overarching concept of the rule of law, conceptually as well as empirically. This can
be done either by arguing that one particular attribute makes up the core of the rule of
law (and is in this respect more important than others) or by interchangeably isolating and
investigating different attributes. The former solution means opting for a ‘thin’ definition
which focuses on the formal aspects of the laws, for instance, their character.14 As this
chapter will show, this ‘thin’ approach has a number of merits with respect to theorising,
measurement, and causal analysis. In fact, I shall argue that it represents a way of solving
some of the disagreements that the essentially contested nature of the rule of law has
given rise to.
THICK VERSUS THIN CONCEPTS: SOME GENERAL

CONSIDERATIONS
It might seem overkill to devote two entire chapters to discuss the merits of thin versus
thick definitions of the rule of law. Are we losing ourselves in the kind of academic exer-
cises that so repulse laymen? Is this a contemporary equivalent of medieval scholasticism,
famously dismissed with the notion that scholars debated how many angels could dance
on the head of a pin?15
The answer to these objections are a resounding ‘no’. The question about definitions
has priority because it determines everything that comes after it (again see Bedner).16 This
is particularly important for empirical research; the prism through which I look at the
definition of the rule of law in this chapter. In short, every conclusion about rule of law
developments or the causes or consequences of the rule of law hinges on the definition
of the concept.
Let us touch upon both these points, the first descriptive then the second explanatory,
in turn. As Sartori17 once put it, ‘concept formation stands prior to quantification’.
Before we can measure how, say, a country fares on the rule of law, we need to define
the concept. Furthermore, depending on the definition, we are likely to reach strikingly
12
See Munck, G and J. Verkuilen (2002). ‘Conceptualizing and Measuring Democracy:
Evaluating Alternative Indices’. Comparative Political Studies, 35(1), 5–34; Coppedge, M. and
J. Gerring, with D. Altman, M. Bernhard, S. Fish, A. Hicken, M. Kroenig, S. I. Lindberg,
K. McMann, P. Paxton, H. A. Semetko, S.-E. Skaaning, J. Staton and J. Teorell (2011). ‘Defining
and Measuring Democracy: A New Approach’. Perspectives on Politic, 9(2), 247–267.
13
Coppedge, 2012.
14
See Møller and Skaaning, 2014, Chapter 1.
15
There is no direct evidence that medieval scholasticism ever debated this particular question,
but questions of the same ilk were treated as part of dialectical reasoning.
16
Sartori, G. (1970). ‘Concept Misformation in Comparative Politics’. American Political
Science Review, 64(4), 1033–53.
17
Sartori, 1970, 1038.
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different conclusions. This is exemplified by the Muslim-majority countries in the Middle

East and Northern Africa (MENA). These countries score relatively high on some rule
of law measures and relatively low on others. Upon inspection, it turns out that measures
that privilege what might be termed ‘political constitutionalism’ award quite low scores to
MENA-countries whereas measures that instead privilege ‘order’ tend to grant relatively
high scores to these countries.18 The eye of the beholder simply determines what we see
and what, in turn, is valued.
It follows that explanatory findings or inferences about the causes and/or consequences
of the rule of law are fragile and susceptible to even subtle changes in the conceptualisa-
tion. It has been convincingly demonstrated that existing rule of law indices are not
interchangeable in large-N statistical analysis.19 Depending on which index we use, we
are likely to reach different conclusions about what occasions a positive rule of law
development or what the consequences of the rule of law are for e.g. economic growth
and human development.
Finally, it is worth noting that the very possibility of analysing whether certain factors
are causes or consequences of the rule of law are affected by the definition. If the rule of
law is conflated with e.g., democracy – by including ‘consent’/’sovereignty of the people’
in rule of law definitions or the rule of law in democracy-definitions – then we cannot
empirically probe whether there are causal relationships between the two phenomena.20
In fact, in this case, these are not distinct phenomena, so it makes no sense to argue that
one affects the other. As Bedner (Chapter 2) puts it, ‘[a]n analytical concept needs to be
sufficiently circumscribed to denote a phenomenon that can be distinguished from other
phenomena, even if the latter bear a close relation to it’.
The question of definition is thus significant and not something to be dismissed as
an exercise in scholasticism. Conceptual choices have priority in empirical research,
and we therefore need to face the essentially contested nature of the concept of the
rule of law head-on. We can start by noting that scholars working on conceptualisation
disagree vehemently about the general merits of thick versus thin concepts. Coppedge21
has forcefully defended the use of ‘thick’ concepts. His basic point is that such concepts
are a precondition for the kind of ‘thick’ theorising that any mature science needs to
engage in. Furthermore, Coppedge argues that ‘thickening thin concepts’ – and hence
theories – is always a possibility, for instance by systematically aggregating across various
sub-components based on analysis of e.g. dimensionality. Finally, if a concept can be
measured as a latent variable, measurement error will decrease as more indicators are
added to the analysis.
Mazucca, on the other hand, has defended the other option;22 namely, to go for ‘thin’
concepts, a strategy he refers to as ‘conceptual atomism’.23 Mazucca argues that this is
18
Møller and Skaaning, 2014.
19
Møller, J. and S.-E. Skaaning (2011). Requisites of Democracy: Conceptualization, Measurement,
and Explanation. London: Routledge; Møller and Skaaning, 2014.
20
Mazzuca, S. (2010a). ‘Access to Power versus Exercise of Power: Reconceptualizing the Quality
of Democracy in Latin America’. Studies in Comparative International Development, 45, 334–57.
21
Coppedge, 1999; 2012.
22
Mazucca, 2010a.
23
Personal correspondence.
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necessary in order to, first, analyse whether different aspects of an overarching concept
are affected in different ways by certain explanatory factors, and then second, whether
different aspects of an overarching concept affect each other in causal terms. Mazucca
exemplifies this with the concepts of the state, which he defines as pertaining to the
exercise of power, and the concept of the regime, which he defines as relating to access
to power. These are conceptually distinct phenomena, but they have often been lumped
together in e.g., thick democracy definitions. In this case, it becomes impossible to
analyse whether explanatory factors such as generalised geopolitical pressure facilitate
state-building but not democratisation and whether, say, democratisation has positive or
negative knock-on effects on state-building.
Elsewhere, Mazucca24 has demonstrated that many seemingly competing findings
about the causes of democracy come down to differences in the democracy definition.25
For instance, whether the working class or the middle class emerges as the most important
driver of democratisation depends on whether equal and universal suffrage is included as
a defining attribute or not.26 Other work has shown that thin concepts decrease the risk
of making false historical analogies in comparative historical analysis;27 the point here is
that the danger of rendering unequal things equal (and hence erroneously controlling for
them in historical comparisons) increases as we thicken the concepts.
Thus, we can return again to the underlying notion that the rule of law is an essentially
contested concept. While we will probably never agree on a final definition of such a
concept (the concept is open, as Gallie indicated) we might well agree on the thinnest
core of the concept. That is, even if people disagree about the outer boundaries or about
how far to go conceptually, they might agree about the genesis or starting point. This
approach has helped scholars working on democracy strike at a minimum definition that
is amenable to measurement. To get a better grasp of the merits of the ‘thin’ approach,
we can turn to this literature for guidance.
THEORISING AND MEASURING DEMOCRACY: THE

SCHUMPETERIAN SOLUTION
Scholars working on democracy and democratisation face the same conundrum as

scholars working with the rule of law: how to deal with an essentially contested concept
in empirical research?28
However, whereas empirical research on the rule of law has only flourished in recent
decades, similar research on the causes and consequences of democracy has a much more
24
Mazucca, S. (2010b). ‘Macrofoundations of Regime Change: Democracy, State Formation,
and Capitalist Development’. Comparative Politics, 43(1), 1–19.
25
See also Møller, J. and S.-E. Skaaning (2013). Democracy and Democratization in Comparative
Perspective: Conceptions, Conjunctures, Causes, and Consequences. London: Routledge, Ch. 8.
26
Ibid.
27
Møller, J. (2016). ‘Composite and Loose Concepts, Historical Analogies, and the Logic of
Control in Comparative Historical Analysis’. Sociological Methods and Research, 45, 651–77.
28
In fact, ‘democracy’ serves as the essentially contested concept par excellence for Gallie, 1956.
See also Collier et al., 2006.
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impressive pedigree.29 One reason for this is probably that the conceptual question of how
to define democracy in a way that is amenable to theorising and measurement was con-
fronted a long time ago. In that sense, empirical work on democracy and democratisation
is more mature than similar work on the rule of law.
The key intervention here was Schumpeter’s Capitalism, Socialism, and Democracy.30
In this book, Schumpeter rejects what he terms the ‘classical doctrine’ of democracy,31
which he construes as an arrangement that realises ‘the common good’ for the people. This
classical notion is therefore very thick, but according to Schumpeter, it is also hopelessly
vague and unrealistic. In its stead, he introduces a very thin definition of democracy: ‘the
democratic method is that institutional arrangement for arriving at political decisions in
which individuals acquire the power to decide by means of a competitive struggle for the
people’s vote’.32
In a nutshell, Schumpeter argues that democracy simply ‘means that the reins of
government should be handed to those who command more support than do any of
the competing individuals or teams’.33 It follows from this that liberal rights, such as the
freedoms of expression and association, are not defining attributes of democracy, and
neither is equal and universal suffrage. On the contrary, Schumpeter34 argues that the
demos delimit itself, e.g., by disenfranchising women or lower classes, and that democracy
does not guarantee liberal rights.35
We need not go into the debate about whether Schumpeter misrepresents the clas-
sical notion to point out that, in the guise he presents it, the classical concept serves
as an almost pure specimen of a ‘thick’, substantive definition. One of Schumpeter’s
objections is that democracy, in this sense, is not amenable to measurement. In his
work on so-called ‘polyarchy’, Robert A. Dahl famously criticised the details of the
Schumpeterian definition but accepted the notion of actually-existing democracy being
what Schumpeter terms a modus procedendi; an institutional framework for gaining
executive power via elections.36 What Dahl did was, first, to add to the Schumpeterian
conception the aforementioned liberal rights as a set of surrounding liberties necessary
for genuine democratic competition and, second, to argue that equal and universal
suffrage is necessary to appreciate the normative ideal of the sovereignty of the people.
Many scholars see Schumpeter’s and Dahl’s definitions as being too minimalist.37
However, even these critics tend to agree that the attributes highlighted by Schumpeter
29
See Møller and Skaaning, 2013.
30
Schumpeter, 1974 (1942).
31
Ibid., 250.
32
Ibid., 269.
33
Ibid., 272–3.
34
Ibid., 243–5.
35
Ibid., 243, fn. 9. Schumpeter uses an example from the New Testament to make this point:
‘In particular it is not true that democracy will always safeguard freedom of conscience better
than autocracy. Witness the most famous of all trials. Pilate was from the standpoint of the Jews,
certainly the representative of autocracy. Yet he tried to protect freedom. And he yielded to a
democracy.’
36
Dahl, R. A. (1971). Polyarchy: Participation and Opposition. New Haven: Yale University
Press; Dahl, R. A. (1989). Democracy and Its Critics. New Haven: Yale University Press.
37
See Held, D. (2006). Models of Democracy. Cambridge: Polity Press.
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and Dahl form the core of the concept. In fact, it is largely meaningless to define democ-
racy in a way that does not include the electoral attribute.38 One way of thinking about this
is by saying that contested elections make up the condiciones sine quibus non of democracy,
that is, a set of defining properties necessary for the concept to make sense.39 To anticipate
a point made below, this is analogous to the role of ‘formal legality’ in the rule of law.
Schumpeter’s and Dahl’s conceptual contributions have provided a foundation for later
empirical research on democratisation and democratic stability. For instance, in his hugely
influential work on these subjects, Adam Przeworski enlists a Schumpeterian definition to
make democracy amenable to measurement.40 Przeworski sees democracy as institutional-
ised uncertainty defined by recurrent elections, which in turn are characterised by ‘ex ante
uncertainty’, ‘ex post irreversibility’, and repeatability.41 Together with a group of collabora-
tors, he has used this definition to reassess a number of influential theories of democra-
tisation and democratic stability.42 Others have favoured the somewhat more demanding
‘Dahlian’ definition, which also proves amenable to empirical measurement and analysis.43
Even if many scholars favour thicker definitions, they would at least agree that these
empirical measures are tapping into the core of democracy, and therefore they would
find the corresponding empirical results relevant for comprehending the processes of
democratisation. What is more, many would accept that the best way of investigating
whether democracy, as such, has certain causal effects is by isolating its electoral core
empirically.44 If we instead use thicker definitions, it becomes blurred as to what exactly
it is about democracy that causes or follows from something else.
THE RULE OF LAW: GOING MINIMALIST
The rule of law research agenda is still awaiting its Schumpeter or its Dahl. I make no
presumption of trying to fill this role. However, in the following, I will peruse existing
writing on the rule of law and discuss whether we can identify a rule of law core equivalent
to the electoral core of democracy identified by Schumpeter and elaborated by Dahl.
38
Collier, D. and R. Adcock (1999). ‘Democracy and Dichotomies: A Pragmatic Approach to
Choices about Concepts’. Annual Review of Political Science 2, 537–565, (559); Collier, D. and S.
Levitsky (1996). Democracy with Adjectives: Conceptual Innovation in Comparative Research. The
Helen Kellogg Institute for International Studies, University of Notre Dame, Working Paper 230.
39
Møller and Skaaning, 2011.
40
Przeworski, A. (1991). Democracy and the Market: Political and Economic Reforms in
Eastern Europe and Latin America. Cambridge: Cambridge University Press, 14.
41
Alvarez, M., J. A. Cheibub, F. Limongi and A. Przeworski (1996). ‘Classifying Political
Regimes’. Studies in Comparative International Development, 31(2), 529–46, (50–51).
42
Przeworski, A., M. E. Alvarez, J. A. Cheibub and F. Limongi (2000). Democracy and
Development: Political Institutions and Well-Being in the World, 1950-1990. Cambridge: Cambridge
University Press; see also Svolik, M. (2012). The Politics of Authoritarian Rule. New York:
Cambridge University Press; Boix, C., M. K. Miller and S. Rosato (2013). ‘A Complete Dataset of
Political Regimes, 1800–2007’. Comparative Political Studies.
43
Bernhard, M., T. Nordstrom and C. Reenock (2001). ‘Economic Performance, Institutional
Intermediation, and Democratic Survival’. Journal of Politics, 63(3), 775–803.
44
Carbone, G. (2009). ‘The Consequences of Democratization’. Journal of Democracy, 20(2),
123–37, (126).
M4581 - MAY_9781786432438_t.indd 27 01/08/2018 14:47

Table 1.1 Principles of the rule of law of Fuller and Finnis
Fuller Finnis
● Generality of law ● Rules are prospective
● Promulgation ● Rules are possible to comply with
● No retroactive laws ● Rules are promulgated
● Clarity of laws ● Rules are clear
● No contradictions in the laws ● Rules are coherent with one another
● Laws do not require the impossible ● Rules are sufficiently stable
● Relative constancy of laws through time ● The making of decrees is limited
● Congruence between official action and ● Officials are responsible and accountable for
declared rule compliance with the rules
Note: Adapted from Møller and Skaaning (2014, 15).
As good a place as any to start is with Raz’s45 well-known assertion that the rule of law ‘is
not to be confused with democracy, justice, equality (before the law or otherwise), human
rights of any kinds or respect for persons or for the dignity of man’. This of course speaks in
favour of a thin definition that isolates the core of the rule of law. What then does Raz mean
by the rule of law? Basically, he construes it as a combination of what in Figure 1.1 is termed
‘formal legality’ and some aspects that pertain to what in Figure 1.1 is termed ‘checks and
balances’. More particularly, Raz identifies the following principles of the rule of law:46
● laws are prospective, open, and clear

● laws are relatively stable
● open, stable, clear, and general rules guide the making of laws
● independence of the judiciary must be guaranteed
● principles of natural justice must be observed
● courts have review powers over the implementation of the other principles
● courts are easily accessible
● the discretion of the crime-preventing agencies is not allowed to pervert the law.
These principles are not far from those listed in two other classical treatments; namely,
those of Fuller47 and Finnis,48 respectively. As illustrated in Table 1.1 above, these largely
concern ‘formal legality’.
Hayek49 too, in his influential work on the rule of law emphasises these very attributes.
Formal legality rests on the maxim that ‘ought implies can’.50 The notion of the rule of
45
Raz, J. (1979). The Authority of Law: Essays on Law and Morality. Oxford: Clarendon Press, 211.
46
See Møller and Skaaning, 2014, 15.
47
Fuller, L. L. (1969). The Morality of Law. New Haven: Yale University Press, 39.
48
Finnis, J. (1980). Natural Law and Natural Rights. Oxford: Clarendon Press, 170–71.
49
Hayek, F. A. v. (1960). The Constitution of Liberty. London: Routledge; Hayek, F. A. v.
(1973). Law, Legislation, and Liberty. Vol. 1. Chicago: University of Chicago Press.
50
HiiL (2007). ‘Rule of Law: Inventory Report’, http://www.HiiL.org/uploads/File/1-947-
Rule_of_Law_Inventory_Report_2007.pdf
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law is premised on the normative position that subjects ought to obey the law, but this, in
turn, entails that it is possible for them to do so. The principles listed in Table 1.1 can be
seen as a way of accomplishing this.
If we were to identify a core of the rule of law, the criteria pertaining to formal legality
would clearly be the place to start. This approach to the rule of law would also fit well with
the term, which does not in itself indicate that laws should have any particular substance; as
Raz once observed, it is not called the ‘rule of good law’.51 The ‘formal legality’ criteria by
definition presuppose an even thinner conception; namely, rule by law (power is exercised
via law). Furthermore, as Bedner (in Chapter 2) shows, they also entail that state action is
subject to law; otherwise ‘formal legality’ is by definition undermined.52 On top of this, the
criteria describe the characteristics of laws, i.e., that they are general, public, prospective,
certain, and consistently applied. Finally, most would argue that the properties general and
consistently applied mean that formal legality include equality before and under the law.
Most scholars would probably be ready to accept that these characteristics make up
necessary defining properties of the rule of law. This once again shows that even essen-
tially contested concepts might not be contested if we only seek to identify their core.
Waldron53 lends support to this point when observing that while there is considerable
dispute over the institutional or political arrangements that the rule of law requires, there
is a relative consensus over its basic juridical requirements – namely, the aforementioned
criteria pertaining to formal legality.54 This is illustrated in Figure 1.2 below where formal
legality is a part of an inner uncontested core of the rule of law with a contested outer
circle comprising the politico-institutional requirements of the rule of law. The point is
that the vehement debates about the rule of law do not concern the conception of formal
justice but the characteristics of the legal system that is to apply it and the political system
that is to realise and guarantee it.
Considering that formal legality is the core attribute of the rule of law and that nearly
everyone accepts it as a defining attribute, it is all the more paradoxical that there are
Democracy State capacity
Formal
legality
Rule of law
Figure 1.2 Formal legality, the rule of law, and overlaps with neighbouring concepts
51
Raz, 1979, 211. My emphasis.
52
See also Raz, 1979, 212.
53
Waldron, 2002.
54
Collier et al., 2006, 228–230.
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virtually no large-N indices that measure it. In fact, only with The World Justice Project’s
recently published ‘Rule of Law Index’ do we have a measure that covers formal legality.55
The equivalent would be that the most influential democracy measures did not tap into
the Schumpeterian core of electoral competition for power. This situation underscores
that empirical research on the rule of law is still rather immature compared with the
neighbouring literature on democratisation and democratic stability.
Besides capturing the core of what legal scholars mean by the rule of law, there are
several additional advantages in focusing on formal legality. In doing so, the rule of
law becomes something analytically separate from a series of neighbouring concepts,
including state capacity, checks and balances, freedom rights, and democracy. In other
words, it is possible to investigate empirically whether explanatory factors (say, the level
of socio-economic modernisation or a Muslim majority) affect formal legality in different
ways than they affect these neighbouring concepts. Furthermore, we are well placed to
investigate causal interrelationships between, among other things, formal legality and
democracy.
Finally, by isolating formal legality, we can probe whether the rule of law has conse-
quences for economic growth or human development independently of, say, democracy
or state capacity. This will arguably tell us more than an empirical analysis showing that
the rule of law in a more general, and thus indistinct sense, has such corollaries. This is
illustrated in Figure 1.2.
Much therefore speaks in favour of a thin definition of the rule of law as formal
legality – at least if the purpose is to do empirical research. However, there are some
important objections. These turn upon the notion that the normative foundation of the
rule of law is to avoid arbitrary exercise of power and hence to safeguard liberty. For
instance, Benjamin Constant objected to Montesquieu’s argument that liberty is to be
able to do what is legal56 by pointing out that such ‘legal liberty’ matters little if the laws
are despotic.57 Caldwell58 similarly notes that ‘the characteristics that Hayek required
law to possess (e.g., that they should be abstract, universal, prospective, and consistently
enforced) are, because they focus on the form rather than the substance of restrictions,
not sufficient to guarantee that personal liberty is preserved’.
Here we can start by responding that formal legality actually places some important
limitations on the exercise of power, hence tempering arbitrariness and favouring liberty.
For instance, it does so by foreclosing the kind of retrospective laws that make the future
consequences of one’s actions unpredictable and by making sure that subjects can reason-
ably know when they break the law (because it is made public). Even more important is
the criteria that laws are general and consistently applied. These criteria serve to avoid the
historically extremely frequent abuse of power so well captured by a famous statement
55
See Møller and Skaaning, 2014, Ch. 1. The new Varieties of Democracy-project also includes
one indicator that taps into aspects pertaining to formal legality.
56
Montesquieu, 1989 (1748), 155, puts it as follows: ‘Liberty is the right to do everything the
laws permit; and if one citizen could do what they forbid, he would no longer have liberty because
the others would likewise have this same power.’
57
Tamanaha, 2004, 37.
58
Caldwell, B. (2004). Hayek’s Challenge. An Intellectual Biography. Chicago and London: The
University of Chicago Press, 347.
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attributed to Peruvian President Oscar Benavides (1876–1945): ‘For my friends, anything.

For my enemies, the law.’ As Bedner (in Chapter 2) describes, this was the reason E. P.
Thompson could end up endorsing a legal system that, in his belief, was clearly skewed
in the favour of elites. Simply because repression or even exploitation had to take legal
forms in the English system that Thompson discussed, it inherently limited the exercise
of power and hence exploitation.59
However, even if direct arbitrariness is avoided, the objection that formal legality does
not guarantee liberty cannot simply be left at the wayside. Laws could still be repressive
in a way that would make a mockery of the normative ideal of the rule of law, however
conceived. Adapting Martin Krygier’s terms, while formal legality mitigates the arbitrari-
ness that follows from unruly power, it does not mitigate the arbitrariness that follows
from unlimited power.60 Furthermore, countries increasingly implement formal legality
as a kind of façade, below which we find ineffective and/or repressive legal systems. This
problem is avoided if we instead see the core of the rule of law as constitutionalism.
Sartori defines this concept as follows:
[t]he constitutional solution adopts rule by legislators, but with two limitations: one concerning
the method of law-making, which is checked by a severe iter legis; and one concerning the range
of law making, which is restricted by a higher law and thereby prevented from tampering with
fundamental rights affecting the liberty of the citizen.61
Reaching back to Figure 1.1, the concept of constitutionalism therefore includes the
two attributes termed ‘checks and balances’ and ‘negative rights’. We can also frame this
in terms of the supremacy of law, or in other words that law transcends politics.62 This
would be an alternative rendering, based on the rule of law being something that explicitly
constrains the exercise of power, not only in form but also in substance. Meanwhile, it
would still make the rule of law analytically distinct from neighbouring concepts such as
democracy and state capacity. In fact, as mentioned earlier, there would be some tension
with democracy as constitutionalism qualifies and diminishes the sovereignty of the people.
A simple empirical example serves to illustrate the difference between the two
conceptions of the rule of law. Singapore, which is an autocracy, would probably score
high on formal legality (as the exercise of power is predictable) but much lower on
constitutionalism (as power is not constrained).63 This example also drives home an
important point, which follows from the attempt to distinguish between rule of law
and neighbouring concepts: formal legality can co-exist with political systems that are
illiberal, authoritarian, and/or undemocratic in nature.
59
See also Krygier, M. (2016). ‘The Rule of Law: Pasts, Presents, and Two Possible Futures’.
Annual Review of Law and Social Science, 12, 209–10.
60
Krygier, 2016, 203–4.
61
Sartori, G. (1987). The Theory of Democracy Revisited. Chatham: Chatham House, 308.
See also Holmes, S. (1995). Passion and Constraint: On the Theory of Liberal Democracy. Chicago:
University of Chicago Press.
62
Berman, H.J. (1983). Law and Revolution: The Formation of the Western Legal Tradition.
Cambridge: Harvard University Press, 9.
63
Krygier, 2016, 211. But see also Møller and Skaaning 2014, Ch. 7 who show that Singapore
scores higher than expected on several rule of law components.
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However, using constitutionalism as the key to be understanding the concept of the rule
of law is difficult for a particular reason: it is premised on isolating aspects of the broader
institutional arrangements that guarantee the judicial principles pertaining to formal
legality. As already pointed out, these institutional or even political requirements are much
more contested in the literature, meaning that it will probably be much more difficult to
get scholars to find a specific definition of constitutionalism that can gain acceptance as
a core meaning of the rule of law.
The final possibility would be to abandon the notion that we can identify one specific
core of the concept and simply recognise its multifaceted nature by disaggregating it in
empirical research. This strategy entails interchangeably isolating the different attributes
included in Figure 1.1 above – and possibly including ‘order’ (whether people obey the
laws) as an additional attribute (see fn. 5 above). Empirically, this would entail identifying
measures for formal legality, checks and balances, consent, negative rights, and positive
rights (and, if one wishes, order). This would enable scholars to investigate whether these
aspects of the overarching concept are affected in different ways by key explanatory
factors and whether they affect each other. Likewise, it might be possible to identify
sequences or syndromes by which countries progress in the direction of the rule of law or
how they diverge from the same. That is, scholars will be in a favourable position to probe
whether some attributes go together empirically and which are first affected if a country
experiences a negative rule of law development.
This strategy has become more realistic as a number of rule of law indices have been
published in the latest years.64 Furthermore, the Varieties of Democracy-project (V-Dem)
has recently published hundreds of disaggregated indicators, many of which can be used
to get at the attributes listed in Figure 1.1.65
CONCLUSIONS
The aim of this chapter has been to couch an argument in favour of thin definitions of
the rule of law within some more general considerations about the trade-offs between
thick and thin concepts. This is probably the place to restate a caveat alluded to in the
Introduction: the choice of definition is not something that can be settled in a final way
when working with an essentially contested concept such as the rule of law. Rather, it
depends on the purpose of the specific investigation (see also Bedner in Chapter 2).
The vantage point of this chapter has very much been one that focuses on the possibility
to identify the causal drivers of the rule of law, its potential consequences, and the way
different attributes of the overarching concept affect each other. This way of approaching
the rule of law almost automatically gives a competitive edge to thin definitions that make
the rule of law analytically distinct from neighbouring concepts and amenable to measure-
ment. Most obviously, it speaks in favour of separating the rule of law from democracy
and state capacity, two phenomena that might plausibly be corollaries to, or causes of,
the rule of law. The advantages of this strategy can be demonstrated by glancing at the
64
See Møller and Skaaning, 2014, Ch. 3.
65
See Coppedge and Gerring et al., 2011.
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neighbouring democratisation literature – or, more particularly, the way scholars working
within this field have dealt with the definition of democracy. Recent research on democ-
ratisation, democratic stability, and the consequences of both has benefited hugely from
the prior conceptual work of Schumpeter and Dahl. These seminal contributions have
provided an anchor for later empirical work, even though democracy is also an essentially
contested concept. They have done so by isolating the electoral core of democracy – a
strategy that has enabled scholars to analyse causal relationships.
Is it possible to do something similar with the rule of law? In this chapter, I have argued
that if we are to identify a clear core, formal legality would be it. This is clearly the best way
to isolate the core of the rule of law and thus to investigate whether this core affects devel-
opments in a different way than neighbouring phenomena such as democracy. Not only
is the concept of formal legality distinct from virtually everything else of interest to rule
of law scholars, it also has the merits that (if the criteria pertaining to formal legality are
in fact observed) it serves as a way of avoiding some of the arbitrariness that is clearly the
antithesis to the rule of law, however understood. In fact, I went quite some way towards
arguing that formal legality limits the exercise of power more than is often recognised.
Finally, as it pertains to basic judicial requirements it is a relatively uncontested part of
the otherwise essentially contested concept of the rule of law.
With that said, one might still object that formal legality can co-exist with very oppres-
sive laws – something that is also often seen as inimical to the rule of law. Based on this,
one might instead favour a (less thin) definition premised on constitutionalism, thereby
entering the murky waters of the politico-institutional requirements of the rule of law.
Finally, one might throw one’s arms in the air, give up the search for a particular core,
and instead embrace disaggregation. A number of new datasets makes this a realistic
approach. However, this approach is clearly less satisfying than one that succeeds in creat-
ing some consensus about the thin core of the rule of law while still recognising that the
essentially contested nature of this concept means that there will never be an agreement
about how far to go in thickening the concept.
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2. The promise of a thick view
Adriaan Bedner
With the rise of the rule of law as a development goal in international co-operation since
the 1990s, the debates about the meaning of this concept have multiplied. While it is true
that jurists and legal philosophers have never agreed on a single definition of the rule of
law (or the equivalent notions of Rechtsstaat, état de droit, etc.), the surge in the rule of
law programmes sponsored by international organisations such as the World Bank, the
IMF and the UNDP has invigorated and broadened the differences of opinion.1 These
debates are not limited to meaning; they also concern such questions as whether the rule
of law is a precondition for or a result of social and economic development; how the rule
of law can be measured, and how the rule of law can be promoted. Yet, the issue of what
the meaning of the rule of law is will always emerge at some point.
At the core of the debates is the opposition between those promoting a ‘thin’ version
of the rule of law and those who prefer a ‘thick’ interpretation. The former believe the
concept should focus on the systemic quality of law and the government being bound
to it, whereas the latter add ideals about what rights the rule of law should guarantee
and/or how the law is made. Legal scholars are divided on this issue. The British rule
of law tradition has been marked by the seminal definition of A. V. Dicey, which
has often been read as excluding civil rights. Another famous British contribution to
the rule of law literature is E. P. Thompson’s essay at the end of his historical study
Whigs and Hunters, which was certainly concerned with a thin version. However, the
equally British prominent former justice Tom Bingham squarely advocates a thick
version.2 Similar differences can be seen in rule of law debates in the US. By contrast,
in the German and French discourse about their equivalents to the rule of law (the
Rechtsstaat and the état de droit) truly thin versions do not feature; in both cases there
seems to be agreement that individual rights and liberties are a fundamental constituent
part of the rule of law.3
Organisations involved in rule of law development show a strong preference for even
‘thicker’ versions than commonly found in scholarly literature. In 2004 the UN Secretary-
General described the rule of law as:
a principle of governance in which all persons, institutions and entities, public and private,
including the State itself, are accountable to laws that are publicly promulgated, equally enforced
1
Humphreys, S. (2010) Theatre of the Rule of Law: Transnational Legal Intervention in Theory
and Practice. Cambridge University Press, 4–5.
2
Bingham, T. (2011) The Rule of Law. Penguin UK, 67, and see the introduction to this
volume.
3
For Germany, see for instance Pierot, B. (2011) ‘Historische Etappen des Rechtsstaats in
Deutschland’, Jura, 10, 735 or Schmidt-Abmann, E. (2015) Handbuch des Staatsrechtst Band II,
Müller Jur. Verlag, 552–4. For France, e.g., Heuschling, L. (2010) ‘Etat de droit’, in Auby, J.B.,
L’influence du droit européen sur les catégories juridiques du droit publique Dalloz, 549.
34
M4581 - MAY_9781786432438_t.indd 34 01/08/2018 14:47

The promise of a thick view 35
and independently adjudicated, and which are consistent with international human rights
norms and standards. It requires, as well, measures to ensure adherence to the principles of
supremacy of law, equality before the law, accountability to the law, fairness in the application
of the law, separation of powers, participation in decision-making, legal certainty, avoidance of
arbitrariness and procedural and legal transparency.4
The UN’s idea of the rule of law consists of a set of components which can be pursued
separately, but putting them together has the advantage of suggesting that they possess
a coherence. By opting for the term ‘international human rights norms’ the UN even
exceeds the notion of individual rights and liberties, because international human rights
norms also include socio-economic rights. On top of that, the listing of ‘participation
in decision-making’ inserts democracy into the UN’s rule of law definition. Democracy
arguably is an aspect of governance that finds itself at the same level as the rule of law,
and it constitutes a broad and complex field of study in itself. The question is whether
its inclusion stretches the rule of law concept so far as to be no longer of any use as an
analytical tool.
How can we explain the preference for such sweeping lists of rule of law components,
or in other words, what is the promise of a thick view of the rule of law? This chapter
will first address the question of what a thick version of the rule of law is by juxtaposing
it to thin versions. I will proceed by demonstrating how the preference for particular
thin or thick versions can be explained by the purpose the rule of law concept is to
serve. I will also argue that by excluding all substantive elements most of the thin ver-
sions are ahistorical in nature, since all rule of law concepts have developed together
with the notion of fundamental rights. My conclusion in the end is that the choice for
a thick over a thin version of the rule of law is dependent on the purpose for which
the concept is deployed: an analytical tool, an aspirational ideal, or something in
between.
THIN AND THICK VERSIONS OF THE RULE OF LAW
One may conceive of the rule of law as consisting of different elements, which can
be derived from the various definitions in use.5 Underlying these elements are two
functions the rule of law is intended to serve and which are widely agreed upon: to
protect citizens against the state, and to protect citizens from their fellow citizens. The
first function is the more prominent one and has been central to the development of
the rule of law concept in the western world. The second one intends to promote social
4
Report of the Secretary-General: The rule of law and transitional justice in conflict and
post-conflict societies (S/2004/616).
5
Bedner, A. (2010) ‘An elementary approach to the rule of law’. Hague Journal on the Rule
of Law, 2(1), 55. The basis for this approach can be found in Tamanaha, B. Z. (2004) On the Rule
of Law: History Politics, Theory. Cambridge, Cambridge University Press, and Peerenboom, R.
(2004). ‘Varieties of rule of law: An introduction and provisional conclusion’. In: Peerenboom, R.
Asian Discourses of rule of Law. London, Routledge Curzon, 4. Note that Peerenboom uses
a slightly different classification than Tamanaha, including democracy under the substantive
elements. On this point, I follow Tamanaha 2004 (see below).
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order,6 and has received particular attention in the framework of global rule of law
promotion, notably in addressing concerns about security and ‘repairing’ dysfunctional
states.7
It is important to see that there is a tension between these two functions. Whereas
protecting citizens against the state demands limitations on the latter’s power, protecting
citizens against one another requires a strong state. Nick Cheesman has therefore argued
that the second function should be considered separately, and that the rule of law should
not be conflated with ‘law and order’.8 In other words, he proposes a thin version of
the rule of law already at the level of function. However, few have followed this sugges-
tion, probably because they see a link between the two functions. Peter Rijpkema – for
instance – holds that these functions ought not to be separated because both have as their
ultimate aim to ‘enable people to live their lives as responsible persons in accordance with
their plans’.9 To achieve this, citizens need protection both against the state and against
their fellow-citizens.
One finds other variations on the two functions the rule of law is to serve,10 yet for
the purpose of the present chapter this matter is only of secondary importance. All the
elements I will discuss below are relevant for a rule of law concept that is based on the
first function alone. It is only in determining the weight the different elements carry that
the distinction between the functions becomes important.
Since it takes function as its point of departure, the approach to distinguish thin from
thick conceptions is ‘teleological’ rather than ‘anatomical’ in nature. It is concerned in the
first place with what the rule of law tries to achieve and not with the specific institutions
or features that are its constituent elements.11 In other words, the ‘anatomy’ of the rule of
law depends on the purpose and not the other way around.
Turning our attention now from functions to elements, we can distinguish thick and
thin versions of the rule of law as they are commonly understood: the more elements the
rule of law definition encompasses, the thicker it is. There is, however, not a straight line
from the thinnest to the thickest rule of law concept. While ‘rule by law’ is the starting
point for any version of the rule of law, one cannot neatly stack ‘legal formality’, an
independent judiciary, fundamental rights, etc. one onto the other to build a thicker rule
of law. The reason is that some authors add certain elements to their definition which
others leave out. Likewise, some authors use the notion of rule by law as the antithesis to
6
Bedner 2010, 50–52.
7
Cf. Møller and Skaaning, who argue that order ‘could be termed a “result-oriented”
dimension, as the point is whether the law effectively keeps anarchy at bay in the societal relations
between individuals and groups’, Møller, J. and S. Skaaning (2012) ‘Systematizing thin and thick
conceptions of the rule of law’. Justice System Journal, 33(2), 141.
8
Cheesman N. (2014) ‘Law and order as asymmetrical opposite to the rule of law’. Hague
Journal on the Rule of Law, 6(1), 107-112.
9
Rijpkema, P. (2013) The rule of law beyond thick and thin. Law and Philosophy, 32(6), 813.
10
To Krygier, for instance, the central objective of the rule of law is reducing the arbi-
trary exercise of power (Krygier, M. (2012) ‘Rule of law’. In: Rosenfeld, M. and A. Sajó (eds)
The Oxford Handbook of Comparative Constitutional Law. Oxford: Oxford University Press,
241–2).
11
Krygier, M. (2008) ‘The rule of law: legality, teleology, sociology.’ In: Palombella, G. and
N. Walker (eds) Re-locating the Rule of Law. Oxford: Hart Publishers.
M4581 - MAY_9781786432438_t.indd 36 01/08/2018 14:47

rule of law. By contrast, for most authors rule by law is the first element of the definition
of the rule of law.12 In short, there exists no agreed upon sequence of rule of law elements.
However, most authors who have written on the subject follow similar lines of reasoning,
which allows us to distinguish a common pattern.13
One generally made distinction that plays an important role in the thin-thick discussion
is the division between procedural and substantive elements of the rule of law. Procedural
elements refer to the way in which the authorities exercise power, as well as to the quality
of the law. Substantive elements, by contrast, set standards for the contents of the law
itself. They are not so much concerned with the effectiveness and procedural fairness of
the legal system, but rather with guarantees to ensure that the legal system produces fair
outcomes for citizens.
Since certain procedural elements are part of all rule of law definitions, whether thin or
thick, we may start by listing those first:
● rule by law (law is used as an instrument of rule);

● rule of law (all state actions are subject to law);
● formal legality (law must be clear and certain in its content, accessible and predict-
able for the subject, and general in its application).
These three procedural elements are present in even the thinnest rule of law definitions.
Most of those championing a thin version add to this that the law should be applied by
an independent judge. This requirement is ontologically different from the procedural ele-
ments above: the focus is on the quality of a particular actor (the judiciary’s independence)
rather than on a situation (general rules are used as a tool of government) or on the quality
of those rules (formal legality). For this reason it makes sense to subsume an independent
judiciary under a third category, i.e., ‘mechanisms’ for implementation.14 I will return to
this third category below.
The next element in the procedural category takes us far beyond a thin conception:
● consent determines or influences the content of the law and legal actions.
This refers to forms of democracy, or the existence and operation of particular procedures
to determine the content of rules. Habermas considers this element as essential for any
rule of law system: ‘From the standpoint of legal theory the modern legal order can draw
12
E.g. Peerenboom 2004, 2; Rajah, J. (2012) Authoritarian Rule of Law: Legislation, Discourse,
and Legitimacy in Singapore. Cambridge, Cambridge University Press, 4. For a discussion of the
relation between rule of law and rule by law, see Cheesman, 2014, 103–7.
13
Møller and Skaaning, 2012, take this point even further, by speaking of asymmetrical rela-
tions between rule of law components in their exploration of the relation between rule of law and
law and order.
14
See also Summers, R. S. (1993) ‘A formal theory of the rule of law’. Ratio Juris, 6(2),
128–9. Carl Schmitt made a similar distinction: procedural elements are deduced from the so-
called ‘distributive principle’ (Verteilungsprinzip), mechanisms from the ‘organisation principle’
(Organisationsprinzip). The first one is connected to the nature of laws (acts of parliament), the
second to the division of powers (Schmitt, C. (1954/1928) Verfassungslehre. Berlin: Duncker &
Humblot, 126–7).
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its legitimacy only from the idea of self-determination: citizens should always be able to
understand themselves as authors of the law to which they are subjects as addressees.’15
Yet, Habermas did not include democracy in his rule of law concept, but considers the
two as mutually constitutive.16 Carl Schmitt, when he wrote about the rule of law in a
democratic state (the Weimar Republic), even juxtaposed the two: democracy represents
the ‘political’ in a constitution, the rule of law (bürgerliche Rechtsstaat) serves to contain
the tyranny of the majority.17
The next category consists of substantive rule of law elements, which refer to the
contents of the law instead of to its use, its clarity, or its provenance. This category is
composed as follows:
● all law and its interpretations are subject to fundamental principles of justice;
● individual rights and liberties are recognised and protected;
● socio-economic rights are guaranteed and promoted;
● group rights are recognised and protected.
These substantive rule of law elements have their origin in natural law theory.18 They build
on the assumption that there are fundamental principles of justice and rights, which are
universal and which no human being can be denied.19 These principles can be articulated
in the form of ‘the common law’ – as in the British tradition – or in a bill of rights, as in
the American and the continental European traditions. According to Dworkin, they are
implicit in the legal system itself.20 If we look at the main function that the rule of law
is supposed to serve – to protect citizens against the state – principles of justice as well
as individual rights and liberties play a central role. In the liberal rule of law tradition
individual rights are key to constraining the powers of majoritarian rule in a democratic
system.21 Group rights are a more recent invention, but they are similarly constituted as
individual rights and therefore not difficult to fit into this model.
This is different for socio-economic rights. Such rights impose a duty on the state to
provide welfare; in this case the state is not something a citizen needs to be protected
against, but quite the opposite: the state is a political entity that has the obligation to act
for the benefit of its citizens, not to refrain from interfering in their actions. Underlying
the promotion of socio-economic rights is the fear that elites will turn the state into a
vehicle for serving their private interests, instead of focusing on the ‘common good’
15
Habermas, J. (1997) Between Facts and Norms: Contributions to a Discourse Theory of Law
and Democracy. John Wiley & Sons, 449.
16
See for instance Habermas, J. (1995) ‘On the internal relation between the rule of law and
democracy’, European Journal of Philosophy, 12-20.
17
Schmitt, 1954/1928, 201. This distinction is often made in Germany and other continental
countries where it is common to refer to the ‘demokratische Rechtsstaat’ (democratic state under
the rule of law).
18
Tamanaha, 2004, 107.
19
See on this point also Palombella, G. (2010) ‘The rule of law as institutional ideal’,
Comparative Sociology, 9(1), 4–39.
20
Dworkin, R. (1978) Taking Rights Seriously. London: Duckworth.
21
See e.g., Tamanaha’s discussion of the liberal tradition (2004, 38) and the making of the US
Constitution (2004, 54–5).
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or the well-being of the less privileged. By formulating entitlements to proper living

conditions, social-economic rights offer a basis for redistribution of goods and limit the
sanctification of private property rights associated with a libertarian or (neo-)liberal
approach.
The first and second substantive elements – all exercise of law is subject to basic
principles of morality and individual rights and liberties are guaranteed – are included
in most rule of law definitions. Socio-economic rights do not really ‘fit’, and indeed are
seldom explicitly referred to. Some theorists, starting with Dicey, have even argued that
the welfare state is fundamentally incompatible with the rule of law. Continuing this
line of thought, Hayek rejected any form of coercive redistribution of goods and the
related attribution of legislative powers to administrative agencies because this would
undermine the rule of law’s core of procedural elements.22 Yet, because socio-economic
rights fall under the notion of ‘human rights norms’ they are at least implicitly included
in many rule of law definitions, including the one from the UN quoted above. The
same applies to group rights: in as far as these can be subsumed under ‘human rights
standards’ they are automatically part of the many rule of law definitions that refer to
such standards.
As a preliminary conclusion we may say that the watershed between thin and thick
versions of the rule of law depends on the inclusion of one or two elements. The first is
the procedural element of democracy, the second the substantive one of human rights.
Although there seems to be a correspondence between ‘thin = procedural elements’ and
‘thick = all procedural elements + substantive elements’, this distinction does not hold:
many rule of law definitions do include human rights, but they exclude the procedural
element of democracy.23
The final category of rule of law elements concerns mechanisms of enforcement. As
I already mentioned, these mechanisms are sometimes listed as procedural elements, but
they deserve to be treated separately. The importance of this ‘institutional side’ of the rule
of law has been emphasised by Ugo Mattei in his proposal to reconfigure legal families
for the purpose of comparison. Mattei introduces the distinction between the ‘rule of
traditional law, the ‘rule of political law’ and the ‘rule of professional law’. Central to the
distinction between the latter two is the development of the institutional aspect of the
legal system, with an independent judiciary at the centre of the rule of professional law.24
The elements in this category can be summarised as follows:
● there exists an independent judiciary charged with the administration of justice;

● there are other, specialised institutions to protect citizens’ rights.
22
Hayek, 1976/1944, 59–60. See also Tamanaha, 2004, 63.
23
Differently Tamanaha, 2004, 102.
24
Mattei, Ugo (1997) ‘Three patterns of law: taxonomy and change in the world’s legal
systems’, The American Journal of Comparative Law 45.1, 30–31. Mattei adds other requirements
for legal autonomy, such as availability of legal literature and adequate distribution of judicial
opinions. What this indicates is how each element of the rule of law brings along a whole set of
prerequisites and associated problems which impinge on the functioning of that particular element
of the rule of law. This is not only true of an independent judiciary, but also applies to other
elements. See also Bedner, 2010.
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The requirement of an independent judiciary is included in all rule of law definitions in

the western liberal tradition. This excludes from the rule of law list those states whose
organisation is not based on the trias politica, such as China and Vietnam where the judi-
ciary is constitutionally subject to the control of the communist party.25 The same goes
for an illiberal democracy such as Singapore, where the rule of law has been emptied of all
substantive content, with ‘the executive appropriating judicial functions and preventing
the courts from conducting judicial review’.26 On the other hand, the judiciaries in these
countries in practice often act independently to a certain level, while in other countries
that do provide the formal guarantees for an independent judiciary practical problems
may inhibit the judiciary’s ability to administer justice in an independent manner.27∆123
The second element of special institutions is relatively new and a consequence of the
increasing complexity of governance. In today’s world citizens confront all kinds of
authorities of a sometimes highly specialised nature and a generalist judiciary may not be
able to provide the degree of protection they need against such agencies. Specialisation
within the judiciary may help, but the formalised proceedings of a court are not always the
most adequate answer. The result has been a rapid proliferation of tribunals, ombudsmen,
human rights commissions, etc. which add to the function of an independent judiciary.
Some of these institutions may also specifically address relations between citizens, such
as anti-discrimination tribunals. Many of them, for example national human rights
institutions, have been actively promoted by the UN in the framework of ‘rule of law
development’ and can therefore now be found all over the world.28
While an independent judiciary is often mentioned explicitly in rule of law definitions,
these other ‘guardian institutions’ can be read into the broad definitions as the UN-one
reproduced above. This definition speaks of ‘independent adjudication’, but it does not
say whether it is the judiciary that should be charged with this task.
An independent judiciary finds itself on a par with the three procedural elements found
in most thin definitions. Other ‘guardian institutions’ are characteristic for those thick
definitions which do not mention explicitly which institution should ensure ‘independent
adjudication’. They are typically included in the development-oriented definitions guiding
international legal co-operation programmes. I have graphically represented the model
discussed so far in Table 2.1 overleaf.
Let us now return to our initial question: how can we explain the continuous debate
about ‘thick’ and ‘thin’ definitions of the rule of law? An obvious reason for some states
to support a thin version is that the rule of law is generally considered as something
25
Li, L. (2016) ‘The Chinese Communist Party and People’s Courts: judicial dependence
in China’, The American Journal of Comparative Law, (64)1; Nguyen, H. T. (2016) ‘Contesting
constitutionalism in Vietnam: The justifications and proposed models of judicial review in the 2013
constitutional amendment process’. In: Bünte, M. and B. Dressel (eds) Politics and constitutions in
Southeast Asia, Routledge, 271–90.
26
Rajah, 2012, 281.
27
See for instance Gloppen, S. (2003) ‘The accountability function of the courts in Tanzania
and Zambia’, Democratization 10.4, 112–36.
28
Cardenas, S. (2003). Emerging global actors: The United Nations and national human rights
institutions. Global Governance, 9(1), 23–42.
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Table 2.1 Elements of the thin and thick norms of the rule of law
Procedural Substantive Enforcement mechanisms

Thin rule by law fundamental principles of independent judiciary
justice
rule of law individual rights and specialised institutions
liberties
formal legality social and economic
Thick rights
democracy group rights
Source: Author’s table.
positive and that it is easier to qualify as a state under the rule of law if this rule of law is
less demanding – I have already mentioned the examples of communist states and illiberal
democracies. Conversely, social activists and critics of authoritarian states usually prefer
a thick definition of the rule of law because this supports their critique on anti-human
rights policies.29 The answer thus lies in the different ideals implied in a thin and a
thick version. Yet, this does not explain why scholars are also divided on the topic. One
explanation is that to scholars the rule of law is not only an ideal, but also an analytical
concept. The preference for a thin or a thick definition can be partly reduced to the choice
scholars make between discussing the rule of law in terms of an ideal or using the rule
of law as an analytical concept.30 For analytical purposes the rule of law concept needs
to be sufficiently circumscribed to denote a phenomenon that can be distinguished from
other phenomena, even if the latter bear a close relation to it. This makes a thin version
of the rule of law appealing to scholars who emphasise its analytical use.
Looking at the debates, we may distinguish three approaches which result in a
preference for a ‘thin’ rule of law: one legal-historical, one legal-philosophical, and one
pragmatic. To start with the first, the rule of law has traditionally been a concept of
legal scholars, many of whom are concerned in the first place with the quality of the
legal system. This explains why thin definitions focus on procedural elements, but why
most legal scholars do not consider democracy as a part of the rule of law. Democracy
does not primarily belong to the domain of legal scholarship, but to political science. It
concerns the political processes producing legal rules, not the quality of these rules as a
system. The requirement that all government action is subject to law is key to political
philosophers, but the demand of legal formality – that law must be clear and certain in
its content, accessible and predictable for the subject, and general in its application – is
typically a jurists’ concern.
Nonetheless, the most powerful argument that formal legality is at the heart of the rule
of law concept has been made by the historian E. P. Thompson. According to Thompson,
formal legality is something inherently positive. This conclusion comes as something of a
29
Peerenboom 2004, 1.
30
Ibid.
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surprise after 257 pages in the Marxist tradition of exposing law as an instrument of class
exploitation. Thompson’s Whigs and Hunters relates the story of the enclosure of the com-
mons in the forests of Windsor and Hampshire in the eighteenth century, when England’s
oligarchic elite deployed the law as a tool for dispossessing the local population of land
and forest products. The Black Act of 1723 threatened with the death penalty almost all
acts of resistance against this dispossession. Those who had to obey the new rules had
had no say in their making, nor could they exert any influence on how they were applied.
The book is thus certainly not about rights and liberties, but focuses almost entirely on
the dark side of law. Yet, in the end Thompson introduces the notion of rule of law as an
‘unqualified human good’ – not in terms of rights, but in terms of a certain quality of the
legal system. His use of the term rule of law is analytical, and concerns the constraints
inherent in the use of law as a tool of oppression. In his own words: ‘On the one hand,
it is true that the law did mediate existent class relations to the advantage of the rulers
[. . .] On the other hand, the law mediated these class relations through legal forms, which
imposed, repeatedly, inhibitions upon the actions of the rulers.’31 This, to Thompson, is
the core of the rule of law.
Thompson added that the jurists who make up a legal system must take the law seriously.
Law and legal studies are imbued with ideas about legal certainty and ‘fairness’, or formal
justice. Paraphrasing Thompson, studying law for many years makes no sense if this
knowledge is a mere ‘masquerade’ of power. To give effect to these qualities of the law also
requires an independent judiciary. Consequently, even if the law is tilted against the lower
classes, women, ethnic minorities, etc., jurists within the limitations of the system and their
own knowledge will try to further formal legality. If they do not, this will have two conse-
quences. First, it will undermine the power of law to legitimise state action. According to
Thompson, law is in the first place an efficient way of exercising power, but no longer so
if the public perceives its administration as ‘unfair’. Second, the absence of this very thin
version of the rule of law will eliminate the legitimacy of the legal profession. Why would
one bother to study law for many years if it is nothing but a sham that can be bent at will by
those in power? Taking law seriously in this manner inevitably leads to some protection of
citizens against the state, or more precisely, against the executive. From the perspective of
citizens, therefore, in their encounters with the law at least they are not treated arbitrarily.32
The second route to a thin version comes from analytical legal philosophy. Probably the
most prominent contemporary protagonist of a thin version on an analytical philosophi-
cal basis is Joseph Raz. In his essay ‘The Rule of Law and Its Virtue’ he argues that the
rule of law it ‘is not to be confused with democracy, justice, equality (before the law or
otherwise), human rights of any kind or respect for persons or for the dignity of man’.
According to Raz:
The rule of law means literally what it says: the rule of the law. Taken in its broadest sense this
means that people should obey the law and be ruled by it. But in political and legal theory it has
come to be read in a narrower sense, that the government shall be ruled by the law and subject
to it.33
31
Thompson, 1976, 264.
32
Cf. Krygier, 2012, 239–40.
33
Raz, J. (2009/1979) ‘The rule of law and its virtue’. In: Raz, J. The Authority of Law: Essays
on Law and Morality, Oxford: Oxford University Press, 211.
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Raz elaborates this concept in the form of a number of principles which include all the
procedural elements minus democracy but plus the independence of the judiciary.34
He defends this interpretation as that ‘it presents a coherent view of one important
virtue which legal systems should possess.’ Although Raz refers to the rule of law as an
ideal, it is an analytical ideal: it indicates a specific quality of the legal system that can
be described independently. This also shows in Raz’s main objection against including
substantive elements: ‘if the rule of law is the rule of the good law, then to explain its
nature is to propound a complete social philosophy. But if so the term lacks any useful
function’.35
The third, ‘pragmatic’ approach is defended by Brian Tamanaha. Tamanaha not only
argues in favour of a thin rule of law conception for reasons of analytical rigour but also
because there is no consensus in modern societies about a shared morality – including
human rights – and, finally, because for practical reasons he thinks that a thin version
of the rule of law has advantages when it is used in development co-operation. On the
first point Tamanaha is in agreement with Thompson and Raz, and on the second with
Raz, but he makes this point more elaborately: morality and human rights are contested;
natural law has fallen from its pedestal, so there is no basis for a shared morality or a
shared conception of human rights. Worse, giving human rights such a prominent place
goes against democracy and leads to the judicialisation of what should be a political
debate.36
Tamanaha has elaborated his third reason for using a thin conception in the context of
legal development co-operation. The more encompassing the rule of law, he argues, the
larger the chance that its promotion will stimulate legal pluralism and create a mismatch
between expectations of what the state can achieve and the actual power it wields.37 One
might add that a thin definition helps to provide guidance to rule of law programmes,
which have to compete with development programmes pursuing other goals. The broader
the rule of law is defined, the less clear it becomes where the focus for intervention should
lie. Another consequence of promoting a thicker version of the rule of law is that it influ-
ences the way in which we look at countries that may not subscribe to a liberal worldview,
but that do pay attention to procedural rule of law elements.38 The danger is that one loses
sight of their achievements in this realm.
There is no denying that a thin rule of law concept has analytical advantages.
Nonetheless, most scholars writing on the rule of law do not promote a thin version.
Raz seems aware that in the end the meaning of a concept depends on how it is used in
practice. He claims that it is not only ‘good reasons’ causing this preference, but also that
‘it is not original, that I am following in the footsteps of Hayek and of many others who
34
Note that Raz does refer the ‘principles of natural justice’, which seems to indicate the
recognition of a substantive element, however, Raz interprets these merely in a procedural manner
(e.g., the requirement of an open and fair hearing and the absence of bias in applying the rule). See
Raz, 2009/1979, 217.
35
Ibid. 211. For a critique on this point see e.g., Krygier, 2012, 237–8.
36
Tamanaha, 2004, 80-81, 103–4. Similarly, Peerenboom, 2004, 9.
37
Tamanaha, B. Z. (2011) ‘The rule of law and legal pluralism in development’, Hague Journal
on the Rule of Law, 3(1), 1–17.
38
Cf. Peerenboom, 2004, 5–6.
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understood “the rule of law” in similar ways’.39 Raz unfortunately does not provide a
reference to ‘the many others’ – and for truly good reasons this time, for it seems to me
that there are not that many. Worse is that he misreads Hayek, who did include individual
rights and liberties in his rule of law concept.40 Tamanaha makes an equally unsubstanti-
ated claim, when he says that ‘formal legality is the dominant understanding of the rule
of law among legal theorists’. Historically speaking, as from the late eighteenth century
thick rule of law conceptions have been dominant in legal theory, in the sense that
they incorporate individual rights and liberties. So, what then were the reasons for this
preference.
Upon a superficial reading, Dicey, the first British author to use the term ‘rule of law’
in modern times and hugely influential indeed, seems not to include individual rights and
liberties in his definition of the rule of law in his Introduction to the Study of the Law of
the Constitution of 1885. Nonetheless, after Part I (‘The Sovereignty of Parliament’), Dicey
moves to Part II (‘The Rule of Law’) which is little more than an elaborate discussion of
rights and liberties. In Dicey’s own words: ‘This supremacy of the law, or the security given
under the English constitution to the rights of individuals looked at from various points of
view, forms the subject of this part of this treatise’.41 To Dicey, the rule of law is all about
individual rights. His discussion simply presupposes that they are there. In the German
tradition a formal conception of the rule of law may have been dominant during the second
half of the nineteenth century, but it certainly was not during that century’s first half or
during any period in the twentieth century. All major authors writing on the Rechtsstaat
during these two periods agreed that individual rights and liberties were central to it, in addi-
tion to the procedural thin rule of law elements and the independence of the judiciary.42 In
France the concept of ‘état de droit’ never played such a prominent role in legal and political
debates as it did in Germany, but Duguit, Hauriou and Carré de Malberg who championed
the notion during the early twentieth century, all supported a substantive version.43 These
scholars, and most scholars after them, have promoted a rule of law concept that offers
complete protection against tyranny – whether the tyranny of a dictator or of a democrati-
39
Raz, 2009, 211.
40
As Hayek wrote:
Whether, as in some countries, the main application of the Rule of Law is laid down in a Bill of
Rights or a Constitutional Code, or whether the principle is merely a firmly established tradition,
matters comparatively little. But it will readily be seen that whatever form it takes, any such
recognised limitations of the powers of legislation imply the inalienable right of the individual,
inviolable rights of man
Hayek, F. A. (1976/1944) The Road to Serfdom, London, and Henley: Routledge & Kegan
Paul, 63.
41
Dicey, A. V. (1889) Introduction to the Study of the Law of the Constitution, London and New
York: MacMillan and Co, 172.
42
See Pierot, 2011, 732–3. Some authors even deny that a formal conception has ever been
dominant; for more information on this debate see the Wikipedia page about Rechtsstaatbegriff
(https://de.wikipedia.org/wiki/Rechtsstaatsbegriff#Forschungskontroverse:_Gab_es_eine_
Etappe_der_Formalisierung_des_Rechtsstaatskonzeptes.3F, accessed 27-9-2017). This goes against
Brian Tamanaha’s assertion that ‘From the mid-nineteenth century, up through the mid-twentieth
century, it [the rechtsstaat] came to be understood more in terms of rule by law.’ (2004, 109).
43
Heuschling, 2010, 544.
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cally elected majority. For the latter reason, they do not include democracy as an element.
This line of thinking has been further reinforced after the Second World War, when natural
law made a comeback in the form of the Universal Declaration of Human Rights.
Next to this legal-historical pedigree of a thick rule of law concept, an original and
more recent contribution to the support for a thick version of the rule of laws comes from
legal sociologist Philip Selznick. According to Selznick, there is a ‘larger promise of the
rule of law’ than just constraining the state. This promise consists of moral values implicit
in the rule of law concept that are appealing to citizens, such as ‘dignity, integrity, and
moral equality’. They convey a positive sense on the concept, stimulating citizens to hold
the state accountable and reinforcing the state’s own willingness to obey such values.44
Although these values are implicit in a rule of law that includes individual rights and
liberties, they fit even better with socio-economic rights and provide a reason for including
these as well. Selznick’s approach is not merely normative, but also sociological; his focus
is on the meaning of the rule of law for citizens, not for legal philosophers.
The issue of reducing the rule of law to a set of institutions instead of emphasising its
inherent values has gained prominence with the rise of rule of law indexes.45 In her study
about rule of law in Singapore Jothie Rajah gives the telling example of Lee Kuan Yew,
who rebuked the critique of the International Bar Association (IBA) on the condition
of the rule of law in Singapore by pointing at Singapore’s high rankings in several rule
of law indexes.46 Apparently the makers of these indexes are more concerned about legal
certainty in commercial law than about the civil rights the IBA promotes.
A third, and very practical reason why even thicker conceptions of the rule of law that
also include democracy and socio-economic rights have become more popular during the
past decades is that from a socio-liberal perspective they offer a shorthand for an ideal
state. The UN-definition cited above is a good example; but in 1959 the International
Commission of Jurists went even further in its so-called Delhi Declaration:
[. . .] the Rule of Law is a dynamic concept for the expansion and fulfilment of which jurists
are primarily responsible and which should be employed not only to safeguard and advance the
civil and political rights of the individual in a free society, but also to establish social, economic,
educational and cultural conditions under which his legitimate aspirations and dignity may be
realized.47
Following Raz and Tamanaha, one may wonder whether it is sensible to bring all forms of
social development under the banner of the rule of law. The danger is obviously that the
primary function of the rule of law – protection of citizens against the state – loses atten-
tion. A similar point has been made about economists who in the 1990s started to hijack
44
Selznick, P. (1999) ‘Legal cultures and the rule of law’, In Krygier, M., and Czarnota, A. W.
(eds) The Rule of Law after Communism: Problems and Prospects in East-Central Europe (Vol. 5).
Dartmouth Publishing Company. Cited and discussed in Krygier 2012, 244.
45
See for a concise critique Ginsburg, T. (2011) ‘Pitfalls of measuring the rule of law’, Hague
Journal on the Rule of Law, 3(2), 269–80. More generally about the problems of measuring: Merry,
S. E., Davis, K. E., and Kingsbury, B. (eds) (2015) The Quiet Power of Indicators: Measuring
Governance, Corruption, and Rule of Law. Cambridge: Cambridge University Press.
46
Rajah, 2012, 1–3.
47
‘The Declaration of Delhi’, Journal of the International Commission of Jurists, 2(1), 7.
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the rule of law concept for promoting economic development, neglecting its primary
legal-political function.48 A cynical explanation for the popularity of such thick rule of
law versions is similar to the one that explains the transition from using ‘government’ to
‘governance’: it is a way to hide the political action in which donor agencies are involved,
as they try to impose their neo-liberal recipes for development on recipient countries.49
On the other hand, the same mechanism can be judged more positively. Thick versions
may help change the political discourse in a particular country. Brought under the rule of
law politically controversial issues may be discussed. Peerenboom provides the example of
China, where the rule of law opened up new space for democracy, separation of powers
and human rights issues.50
A final reason for promoting thick versions of the rule of law has to do with changes in
the nature of the state in combination with its obligation to protect citizens against their
fellow citizens (the second function of the rule of law). The rule of law originally emerged in
response to the demands of the bourgeoisie in seeking protection against the monarch; Carl
Schmitt even consistently speaks of the bürgerliche Rechtsstaat (bourgeois state under the
rule of law). Its main objective was to protect the sphere of freedom of citizens, where they
could lead their lives without interference from the monarch. With the rise of the welfare
state the freedom of citizens became more limited, as the state increasingly interfered in the
distribution of wealth and benefits in order to protect the working classes against exploita-
tion by the owners of capital. The inclusion of socio-economic rights provides legitimacy
for such interference, without completely rejecting the bourgeois version of the rule of law.
In summary, the preference for a thick version can rely on five different grounds: (1)
the wish to provide a shorthand for an ideal state, or a substantial part of it; (2) the view
that the state’s powers can be limited in a meaningful way only if at least individual rights
and liberties are included; (3) the historical evolution of the concept; (4) the support for
holding the state accountable that comes from conceiving of the rule of law in terms
of moral values; and (5) on the ground that the nature of the state has changed from a
bourgeois to an inclusive one.
CONCLUSION
This chapter is not a plea for a thick version of the rule of law, even if it has outlined strong
arguments in favour of such a version. I have argued that the choice for a thick over a thin
conception depends on two issues. The first is purpose:51 one may use the concept rule of
law as an analytical tool to assess the quality of a particular legal system; or one may use
it for referring to a desirable state of the legal system. The latter is the preferred objective
in the world of rule of law development. The second issue is the discourse one wishes to
engage with. Misunderstandings about the meaning of the rule of law concept are around
the corner and different discursive settings impose different limitations on its use.
48
J. Ohnesorge (2003) ‘The rule of law, economic development and developmental states in
Asia’. In: C. Antons, Law and Development in East and Southeast Asia, London: Routledge.
49
Bedner, 2010, 53.
50
Peerenboom, 2004, 10.
51
As already argued by Peerenboom, 2004, 10.
M4581 - MAY_9781786432438_t.indd 46 01/08/2018 14:47

Purpose is related to the functions ascribed to the rule of law, but not uniquely so. If one
emphasises the protection of citizens against the state, it makes sense to include individual
rights and liberties. If, by contrast, one considers that the rule of law mainly serves to guar-
antee the quality of the legal system, the focus will be on formal legality and an impartial
judiciary. Purpose is also context-dependent: this is evidenced by the preference for thick
definitions within the field of international rule of law promotion, which focuses on places
where economic disparities have huge implications for the ability of individuals to find
protection against the state. Positing the rule of law as a broad, aspirational ideal in this
situation may help to overcome resistance against discussing issues of distributive justice
that are political in nature. At the same time, as I have argued above, the use of thick ver-
sions may obscure what is most important about the rule of law and serve as legitimation
for international projects that are solely concerned with security and economic growth.52
Such variance and contestation need not be a problem; it actually makes sense to opt for
different definitions of the rule of law. It is a convenient shorthand for addressing a number
of features of a legal system. At the same time, when one gets to the level of formulating
a critique on a legal system, or of promoting a specific intervention, one should explain
which aspect or element of the rule of law is being addressed. The use of rule of law indexes,
based on selected indicators for different aspects of the rule of law, seems to promote such
specificity, but in practice this is seldom how they work. Many indexes have built-in biases
and suggest a universal logic and importance of different elements in different contexts,
often measured by problematic indicators. The problem is precisely that there is no universal
logic; at best, there is a path-dependent logic that varies from one context to another.53 The
contexts in which the classical theories of the rule of law and its equivalents emerged were
moreover completely different from the ones in countries where rule of law promotion is now
being implemented, for instance when it comes to popular attitudes about law and legality.54
We have also seen that the distinction between a thick and a thin version of the rule of
law may be located at the level of function. I do think that the suggestion by Cheesman,
to found the rule of law solely on its function to protect citizens from the state, i.e., to
leave out the protection of citizens from their fellow-citizens, has a considerable downside.
With the rise of governance by institutions other than the state, this function seems to
have gained rather than diminished in importance.
Finally, this chapter has demonstrated that among those who favour a thick version of
the rule of law there is considerable consensus regarding what it should include. It consists
of all procedural elements (rule by law, rule of law and formal legality), the institutional
element of an independent judiciary, and the substantive elements of general principles of
justice and individual rights and liberties. Democracy, socio-economic rights, group rights
and other institutions charged with implementation are far less common. The conclusion
therefore is that the most popular thick version is remarkably similar to what the classical
liberal legal theorists presented in the nineteenth century. The promise of a thick version
is therefore at least to continue a tradition of almost two centuries.
52
Humphreys, 2010, 7.
53
Cf. Krygier, 2012, 236–7. This point is also emphasised by Tamanaha, 2004, 57–8 and
Humphreys, 2012, 220–21.
54
Krygier, 2012, 247–8. See also Tamanaha, 2004, 138.
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3. Difficulties with measuring the rule of law
Tom Ginsburg
The rule of law is the central political ideal of our time and there is a near-global consensus
that it is a desirable feature of government. Yet this superficial consensus should set off
alarm bells: any political ideal shared by the Chinese Communist Party, the American
Bar Association, and Jurgen Habermas is likely to be so vague as to have little meaning.
There is considerable conceptual confusion and disagreement about what exactly the rule
of law is. There are many theories as to the thickness of its normative content, about its
antinomies, and regarding its scope.1
This conceptual disagreement has important implications for policy and social science.
Precisely because it is an important ideal, there is significant demand for cross-national
and cross-temporal measurement of the rule of law as both social scientists and the
development community want to understand its causes and consequences across time
and space.
Perhaps unsurprisingly, measurement indicators for the rule of law and have proliferated
in recent years.2 As Merry3 notes, we live in an era of quantification and measurement.
We rank our academic institutions, our sports and entertainment figures, our leaders, and
even countries. With billions of dollars of aid and investment at stake, it makes good sense
to try to figure out how the rule of law differs across contexts. Yet conceptual confusion
poses challenges to systematic measurement.
In my own earlier work,4 I have called for paying attention to fundamental social
science ideas of conceptualization and measurement in approaching the rule of law.
Fortunately, there have been some advances, and several efforts to bring both conceptual
clarity and measurement rigor to bear.5 There has also been an expansion of data and
indicators. These developments suggest that the rule of law is not only an important
topic of inquiry, but a field through which to examine more general challenges and risks
in social science measurement. This chapter surveys some of the issues, starting with the
challenges of conceptualization and measurement, and then turns to a brief discussion
of the various indicators. It argues for disaggregation as a strategy for many lines of
research.
1
See: Tamanaha, Brian. 2004. On the Rule of Law: History, Politics, Theory. Cambridge.
Cambridge University Press; Bingham, Tom 2010. The Rule of Law. London: Allen Lane.
2
Haggard, Stephen, Andrew MacIntyre and Lydia Tiede. 2008. ‘The Rule of Law and
Economic Development.’ Annual Review of Political Science 29: 205–34.
3
Merry, Sally. 2015. The Seductions of Quantification: Global Governance and Indicators of
Human Rights, Violence against Women, and Sex Trafficking. Chicago: University of Chicago Press.
4
Ginsburg, Tom. 2011. ‘Pitfalls of Measuring the Rule of Law.’ Hague Journal of the Rule of
Law 3: 269–80.
5
Møller, Jørgen, and Svend-Erik Skaaning. 2014. The Rule of Law: Definitions, Measures,
Patterns, and Causes. New York: Palgrave Macmillan.
48
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Difficulties with measuring the rule of law 49
THE CHALLENGES OF CONCEPTUALIZATION
Conceptualization and measurement are closely linked stages of social inquiry.6 The social
science literature on these topics is vast,7 but too often ignored by lawyers, notwithstand-
ing some similarities to the architecture of legal thought. Law, after all, is a way of
structuring data in the form of concrete cases into larger and broader categories. In some
sense, legal tests can be treated as concepts, which would benefit from the same rigorous
scrutiny that social scientists apply.8
As Gerring9 writes, a good social science concept can be evaluated on several dimen-
sions. It should have resonance, in that it should ‘makes sense’ to observers; it should have
a stipulated domain over which it applies; it should be consistent (in the sense of carrying
the same meaning in different contexts); it should be ‘fecund’ (meaning that it has richness
and depth); it should be differentiated from other concepts; it should have causal utility
(meaning that it is useful); and it should in principle be measurable (that is, capable of
being operationalized within social science frameworks). We will focus on the last criteria,
while discussing some of the others.
As to the concept we are concerned with, the rule of law, there are many possible
attributes that one might point to in articulating the concept. Analysts distinguish,
for example, between thick and thin conceptions of the rule of law, or procedural
and substantive versions10 though in any of these categories, observers differ on what
would be the necessary and sufficient attributes. Clearly the rule of law is a complex of
phenomena and multidimensional in character which, nevertheless, ‘resonates’, to use
Gerring’s term.
While it might be feasible to develop concepts without regard to measurement, the
reverse is either impossible or inadvisable. Take a simple example of a concept like life
expectancy. The core idea here is something like the predicted length of a human life.
Relevant data or indicators might consist of a sample of actuarial information on ages at
death, but the measurement of life expectancy is more complicated than that. The concept
of life expectancy suggests that we are looking prospectively, at predictions. This in turn
requires some conceptual choices that will reflect the measurement enterprise. Are we
conceiving life expectancy from the point of view of birth? Or given that someone has
already reached a certain age? Do we want to base our measures only on observed deaths,
or predictions about people currently living? These measurement choices indicate how
even a simple concept requires careful consideration in formulation and in measurement.
Data is not self-interpreting, and requires supporting theory.
6
Blalock, Hubert M. Jr., 1982. Conceptualization and Measurement in the Social Sciences.
Beverly Hills: Sage Publications.
7
See: King, Gary, Robert Keohane, and Sidney Verba. 1994. Designing Social Inquiry:
Scientific Inference in Qualitative Research. Princeton NJ: Princeton University Press; Gerring,
John. 2011. Social Science Methodology: A Unified Framework. New York: Cambridge University
Press; Brady, Henry and David Collier, eds. 2004. Rethinking Social Inquiry: Diverse Tools, Shared
Standards. Lanham, MD: Rowman and Littlefield.
8
Ginsburg, Tom, and Nicholas Stephanopolous. 2017. ‘The Concepts of Law’. University of
Chicago Law Review.
9
Gerring. 2011.
10
Tamanaha. 2004.
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There may be some tension between ease of measurement (which requires relatively
precise indicators) and the need for abstraction and generalizability (which requires a
more extensive conceptual apparatus). The more precise the concept, the easier it is to
measure but the less generalizable. The debate over the ‘thin’ and ‘thick’ conceptions of
the rule of law provides a textbook illustration. Advocates of a thin conception of the rule
of law argue for a kind of minimal definition. Fuller’s11 (1969) classic procedural defini-
tion might be considered as the embodiment of a thin version. For Fuller, a legal system
that satisfies certain criteria—he terms it the inner morality—is one that produces law
properly called. His eight attributes are that rules should be general; publicly announced;
prospective (meaning that rules govern future behaviour after announcement); clear;
internally consistent with other rules; potentially subject to compliance (meaning that the
rules are realistic); stable in the sense of not changing too often; and enforced (generally)
as announced. Each of these is a matter of degree, but in Fuller’s view, a legal system that
fails on one or more dimensions moves outside the category of law entirely. As he puts it
‘A total failure in any [of the attributes] does not simply result in a bad system of law; it
results in something that is not properly called a legal system at all.’12 This is a clear and
operationalizable definition that is nevertheless not imbued with too much normative
content. It does not, for example, require that the laws be ‘good’ laws based on some
external criteria; it does not require that a legal system uphold basic human rights or
be liberal in character, or be embedded in a democracy. For this reason, it is sometimes
termed a procedural definition.
A slightly thicker ‘thin’ theory is offered by Joseph Raz.13 Raz has many of the same
features as does Fuller in his definition, but adds the institutional element of independent
courts with the power of supervising the implementation of the rules. This institutional
dimension is at the core of much of the practitioner literature on the rule of law which
focuses on institutional transfers from developed countries to developing countries.14
One challenge to thin theories is that the rule of law as a concept is normatively laden in
the manner it is perceived. In an era in which everyone agrees that the rule of law is a good
thing, trying to separate the concept from its normativity may amount to obfuscation.
The thin version associated with Fuller and other scholars may have a broader domain
as a concept, allowing us for example to analyse the rule of law in authoritarian political
systems, but it may also lead to ambiguous cases that do not match intuitive ideas about
the rule of law. For example, it was a famous debate with H. L. A. Hart15 on Nazi law that
prompted Fuller to develop his thin conception in the first place. Fuller16 thought Nazi
law did not qualify, but that there may be other ‘evil’ systems that do meet the thin test.
11
Fuller, Lon. 1969. The Morality of Law. New Haven: Yale University Press.
12
Ibid., p 39.
13
Raz, Joseph. 1979. The Authority of Law. Oxford, Clarendon Press
14
See: Carothers, Thomas. 1998. ‘The Rule of Law Revival.’ Foreign Affairs. March/April:
95–106; Carothers, Thomas. 2009. ‘Rule of Law Temptations.’ Fletcher Forum on World Affairs
33(1): 49–61.
15
Hart, H. L. A. 1958. ‘Positivism and the Separation of Law and Morals.’ Harvard Law
Review 71(4): 593–629.
16
Fuller, Lon. 1958. Positivism and Fidelity to Law — A Reply to Professor Hart. Harvard
Law Review 71(4): 630–67.
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Another strategy of conceptual definition is maximal.17 Instead of looking for the mini-
mum necessary attributes, maximal definitions include the ultimate version of a particular
concept inclusive of all helpful attributes. An ideal-type rule of law system, for example,
might be very thick indeed, and enjoy lots of human rights protections, reinforcement of
individual autonomy and other related values. As with all ideal types, one might never
observe such a system in practice but it might still be helpful as a yardstick.18 For the rule
of law, a thick version is something like a maximal one. Examples of thick definitions
are those that include human rights and equality; Ronald Dworkin and Friedrich Hayek
are examples of theorists who offer such views.19 These scholars believe that specific and
particularly substantive values must be included for a system to conform to the rule of law.
One of the problems with the maximal views is differentiation. When the rule of law
is imbued with other concepts like democracy or human rights, it becomes impossible
to distinguish the two in any empirical analysis. Yet we might want to understand the
relationship between, for example, the rule of law and human rights protections. Does
one cause the other? Are they correlated? Aggregating the concepts at a definitional level
takes these questions off the table.
Gerring20 offers a third strategy of concept formation, namely a cumulative approach
that seems to combine elements of minimal and maximal strategies. This involves listing
attributes that need not all be essential, but can be ordered in terms of essentialness. So, as
an example we might say that, clarity in the law is a desirable attribute but not as essential
as conformity with the rules by public officials. This would allow us to produce an ordinal
index of the rule of law across contexts. Something like this may be found in Bingham’s21
definitional strategy which starts with a core, and then adds thickening elements thus
allowing for ordinal comparison, at least in theory.
FROM CONCEPTUALIZATION TO MEASUREMENT
The conceptual dimension of the rule of law has been highly contested, particularly in
the context of concrete measurement efforts. Any definition that acknowledges that the
rule of law has multiple dimensions raises measurement issues of aggregation, no small
challenge. One needs measures of each of the subcomponents and a mode of aggregating
them into a single feature. Weighting various subcomponents can be a source of bias
in the measures. For example, if 90 per cent of laws produced in one legal system are
prospective, and all of them are clear and easy to understand, does it then approximate
the rule of law more than another legal system which is always prospective yet with laws
that are difficult to understand?
The rule of law is conceived of as an absolute good for which more is always better. As I
17
Gerring. 2011.
18
See: Weber, Max. 1949. The Methodology of the Social Sciences. New York: Free Press;
Gerring, 2011.
19
See: Hayek, Friedrich. 1944. The Road to Serfdom. Chicago: University of Chicago Press;
Dworkin, Ronald. 1980. Political Judges and the Rule of Law. London: The British Academy.
20
Gerring. 2011.
21
Bingham. 2010.
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noted in an earlier article: ‘No one complains that officials follow the rules too predictably
or that the legislature is too clear in announcing rules prospectively.’22 But some of the
institutional features that are necessary for the rule of law might not be absolute goods,
but rather goods for which we should think in terms of optimal rather than maximal
values. Judicial independence is one example. While judicial independence is important,
it is not an unlimited good, and we might also want some institutional accountability for
the judiciary. If some components of a larger concept require optimization rather than
maximization, then the formula for aggregating components will be critical. Variance
from an optimum for different subcomponents might cancel each other out. In addition,
there is an implicit assumption in aggregating that the subcomponents do not interact
with each other, which is probably indefensible.23
Clearly a more sophisticated approach to aggregation is necessary if one is to speak
of the rule of law in toto. But these thorny methodological issues are to some extent
intractable. Perhaps the better strategy would be for us to be more precise and limited in
our concepts.
Another crucial issue in rule of law measurement concerns context, especially for
cross-national comparison. A multidimensional concept might involve different levels of
incorporation depending on features of the local context. If some elements of the rule
of law are absent in some places, others might compensate for it. It may be that, in some
countries, an independent judiciary is a crucial element to realizing the rule of law, but
in other countries the judiciary can become too independent in the sense that it seeks
to judicialize areas of governance that are better left to ordinary legislative politics.24
Sometimes an independent bar may be the key to sustaining the rule of law, while in other
countries it might be well-trained government officials that internalize the relevant values.
For example, in Japan, the bureaucracy has developed various mechanisms to make sure
that officials follow rules, and bureaucratic corruption is not common. Lawsuits are rare.
Variation in such contextual factors may undermine conceptual consistency, the idea that
a concept must carry the same meaning in each empirical context.25
This in turn pushes us back toward the virtues of a thinner conception. The thicker
and more varieties there are of the rule of law, the more difficult it will be to meet the
criteria of contextual consistency. In short, a thinner view of the rule of law may have less
conceptual resonance and fecundity, but it has a broader domain, promises more consist-
ent application, and is more easily differentiated from other neighbouring concepts. The
next section will discuss whether it is measurable.
In conclusion, we should recognize that the rule of law is an essentially contested
concept.26 But this does not mean that it is incoherent. Thinking rigorously about
conceptualization will be helpful, and will require attention paid to the specific purposes
and theories of the analyst.
22
Ginsburg. 2011.
23
Møller and Skaaning. 2014. p. 57.
24
Garoupa, Nuno and Tom Ginsburg. 2015. Judicial Reputation: A Comparative Theory.
Chicago: University of Chicago Press.
25
Gerring. 2011.
26
Møller and Skaaning. 2014.
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MEASUREMENT
Social science measures can be assessed in terms of validity (are they measuring what
they purport to be measuring); reliability (are they likely to produce consistent measures
for repeated attempts to measure the same phenomenon); and bias (does the measure
produce values that systematically differ from the true value they purport to capture.)
Valid, reliable, and unbiased measures of institutional quality are extremely challenging
to produce; ‘quality’ in this context is unobservable and so we are really looking at proxy
indicators. There are two measurement strategies that are generally pursued: surveys of
experts and objective data. Surveys, as subjective measures, raise concerns of validity and
bias. We do not know whether survey respondents are answering questions based on the
actual phenomenon we are seeking to measure, or some other phenomenon. We also do
not have any way of systematically getting at measurement error.
Objective data, on the other hand, are difficult to obtain. One might think of the
percentage of enforced court decisions in which the government loses, for example, as
one indicator, or the average speed of decisions in the higher courts. But these indicators
are by their nature related to subcomponents of the rule of law and so raise problems of
aggregation discussed in the previous section.
Proxy variables, such as the influential and creative idea of using ‘Contract-Intensive
Money’ as a measure of institutional quality,27 raise their own problems. Contract-
intensive money—the proportion of the money supply kept in formal institutions such
as banks—tends to be correlated with institutional quality because people will only trust
banks where the regulatory regime is of high quality. But this still does not allow us to dis-
tinguish between, say, the quality of bank supervision, the role of contract enforcement,
or the rule of law in determining the level of such money.
As measures have proliferated a small literature has emerged evaluating them.
Skanning has played an important role.28 Most of the rule of law measures in existence
are subjective in the sense that they rely on survey data, or else rely on expert coding. For
example, the Freedom House Rule of Law Index, and the Bertelsemann Foundation’s
Transformation Index each have rule of law indices that use expert coding. Other projects,
such as the International Country Risk Guide’s Law and Order Index and the Fraser
Institute’s Economic Freedom Index are slightly different in that they ask about concepts
that are related to the rule of law, though not identical to it. The former is coded in a
non-transparent process, as a private company produces, it while the latter is based on
existing indicators.
The World Bank’s Worldwide Governance Indicators (WGI) project draws on other
datasets to produce an aggregate measure of the rule of law. As a meta-indicator, it is
subject to some of the concerns about aggregation generally. For example, if the compo-
nent measures have correlated errors (for example if a respondent to a survey based their
assessment of a country in part on one of the other published sources, or the experts
27
Clague, Christopher, Philip Keefer, Stephen Knack, and Mancur Olson. 1999. ‘Contract-
Intensive Money: Contract Enforcement, Property Rights, and Economic Performance’, Journal
of Economic Growth 4: 185.
28
See: Skaaning, Svend-Erik. 2010. ‘Measuring the Rule of Law.’ Political Research Quarterly.
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answering various instruments are the same people), then the aggregate measure will be
biased in the direction of that error. If the components are truly independent, and the
errors uncorrelated, then the aggregate measure in principle will be an improvement on
the subcomponents.
Another criticism of the WGI index is that it has modified its component subconcepts
over time, raising challenges to claims of reliability and validity. If the index measure
is purporting to capture different things in different years, cross-temporal comparison
will not be possible. At one point, the World Bank defined the rule of law as ‘the extent
to which agents have confidence in and abide by the rules of society, and the quality of
contract enforcement, the police and the courts, as well as the likelihood of crime and
violence’.29 This definition aggregates crime and contract enforcement, which are likely
to have different institutional indicia and be produced by different causal factors. It is a
thick definition, since it includes both procedural elements about the character of legal
rules and substantive concepts such as security of the person and freedom from crime.
Because only some of these features may be within the control of government, the policy
implications of conflating different factors are muddied. For example, the crime rate
might be determined more by economic or demographic conditions than by any policies
of the police or the state. If so, a country could have a rule-following, well-ordered police
department, but still rate low on ‘rule of law’. To reduce the crime rate in such a place
might require different economic policies, not fixing institutions.
One very ambitious effort that has received positive assessment by scholars30 is the
World Justice Project (WJP), which includes both elite and mass surveys about institu-
tional quality. The WJP measurement strategy is distinctive in that it conducts expert
surveys and representative polls among the population in the top three cities of each of 99
different countries. This allows for comparison of perceptions between elites and masses.
This project also conceives of the rule of law in a richer way than other efforts: it has
eight components and several dozen subcomponents that are then aggregated to produce
an overall score. This approach allows the analyst to identify the specific dimensions or
domain of the legal system of greatest interest. It also allows modular aggregation that
is transparent. Finally, the project subjects its data to a rigorous statistical audit. In this
sense, it is the state of the art.
The proliferation of rule of law measures has led to some exploration of their v alidity.
Møller and Skanning have a book-length treatment that explores these issues in depth,
and make a number of important points.31 They conduct a factor analysis and find a
common latent dimension among many indicators.32 They also examine pairwise cor-
relations among seven different indicators, finding that the coefficients are generally
positive and relatively high.33 But overall, they are quite critical of measures developed
to date, concluding that ‘the problems pertaining to measurement are so incriminating
that it seems fair to declare that much extant research on the rule of law rests on feet of
29
World Bank, 2011. World Governance Indicators, available at: http://info.worldbank.org/
governance/wgi/pdf/rl.pdf.
30
Møller and Skaaning. 2014.
31
Ibid.
32
Ibid., p. 59.
33
Ibid., p. 65.
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clay’.34 They call for more careful conceptual specification and a close link between theory
and measurement; they also argue for the kind of disaggregated data that the WJP has
produced.
In a similar vein, Versteeg and Ginsburg35 compare four major indicators of the rule of
law: those of the WJP, the WGI, the Heritage Foundation, and Freedom House. Noting
that the different indicators have distinct approaches to the concept of the rule of law and
use different types of measures, they predicted that the various indicators of the rule of
law would be weakly correlated. Surprisingly, however, they found high correlations for
their four indicators as well as for other governance measures like indicators of corrup-
tion. Following Rothstein36 they argue that the high correlations, both internally among
rule-of-law measures and externally with other concepts, suggest that an unobserved miss-
ing variable likely drives the rule-of-law measures. In this sense, Versteeg and Ginsburg37
suggest that the measures capture something broader than the features of the legal system,
and instead are driven by a more encompassing concept of impartial administration.
This finding may be consistent with Møller and Skanning’s38 historical argument that
there was something distinctive in the evolution of western constitutionalism that gave
rise to the modern rule of law. They show that the North Atlantic had a distinct trajectory
and is still the region of the world in which the rule of law is most robust. But even if
deep historical structures or cultural foundations determine the rule of law, there is still a
strong case for measuring the quality of particular institutions associated with the legal
system. Without doing so, longitudinal progress or regress is hard to demonstrate, and
policy interventions hard to evaluate. The argument of this chapter is that such measures
must be developed with the kind of care and rigour that the best social scientists deploy.
CONCLUSION
As the role of law has become more important in the real world, the rule of law has burst
onto the agenda of social sciences and development practice. There is a need to under-
stand the causes and consequences of the rule of law, and this in turn requires indicators
to compare the level or presence of the rule of law across time and space. The ideal of
the rule of law was initially developed by legal theorists, experts in concept formation
but not measurement, and this peculiar evolution has created analytic and measurement
challenges
Social science rules constrain our ability to measure such an abstract and multifaceted
concept as the rule of law, but following those rules is the best way to proceed if the goal
34
Ibid., pp. 174–5.
35
Ginsburg, Tom, and Mila Versteeg. 2017. ‘Constitutional Correlates of the Rule of Law.’ In
Maurice Adams and Anne Meuwese, eds, Constitutionalism and the Rule of Law: Bridging Idealism
and Realism. New York: Cambridge University Press.
36
Rothstein, Bo. 2014. ‘What is the Opposite of Corruption?’ Third World Quarterly 35(5):
737–52.
37
Ginsburg, Tom, and Mila Versteeg. 2016. ‘Measuring the Rule of Law: A Comparison of
Indicators.’ Law and Social Inquiry.
38
Møller and Skaaning. 2014, pp. 149–72.
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is inference. Indeed, even if the goal is explanation or ‘retro-diction’,39 social science rules
are a good place to start. The search for indicators that are valid, reliable, and unbiased
will continue, and these qualities allow us to critique existing measures. One interesting
feature of these existing measures is that they seem to be highly correlated with each other
notwithstanding different strategies and slightly different conceptualizations. This in turn
suggests that either they are all valid, or perhaps that they are measuring some deeper
latent, yet undefined, variable.
The rule of law should perhaps be conceived of as a subconcept of impartiality within
the particular domain of the legal system.40 It is sometimes said that good social science
concepts are distinct from neighbouring concepts, therefore if the concept of the rule of
law is observationally equivalent to impartiality, it suggests the rule of law is itself not an
outstanding concept from a social science point of view, even if it is a useful and resonant
label for popular and policy discourse. Integrating this notion would in turn require us
to be much more fine-grained in conceptualizing and measuring what are now conceived
of as subcomponents of the rule of law. Disaggregation, not aggregation, is probably the
best way to proceed.
39
Elster, Jon. 2009. ‘Excessive Ambitions’. Capitalism and Society. 4(2): 1–30.
40
Rothstein. 2014.
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4. The rule of law, legal pluralism, and challenges
to a Western-centric view: Some very preliminary
observations
Peer Zumbansen*
Pluralism is most often used in a political context, to describe a state in which many voices and
opinions, and in particular political groupings, are able to co-exist. This is possible in politics
because a choice for one group – an election – simply entails that the others lose power, not
that they cease to exist.
This translates rather uncomfortably to law. A law, or judicial decision, renders other views
legally irrelevant. A legal system, unlike a pluralist political system, does not aim at maintain-
ing the coexistence of diverse opinions, but rather at ending this state of affairs, in the name of
legal certainty and authority. One may ask whether law can be, or even should be, pluralist.1
THE CONTEXTUAL NATURE OF THE RULE OF LAW
Which signals must we heed in search of assessing and ascertaining the current state of
the ‘rule of law’? Perhaps we should look for instances of the triumphant rescue or of a
tragic failure of the concept. Alternatively we might focus on judicial pronouncements,
legislative advances, or administrative orders as a way to test the rule of law’s current
state, its mode of operation and its levels of resilience against market forces and inter-
nationalisation. Then we might ask: what is the vantage point from which one should
assess the rule of law today? Is there a particular historical record we can assume as ‘gold
standard’?2 However it is not necessarily clear that there should even be such an indicator,
not least as we might argue that each and every concrete example of the rule of law is
different and unique. In that sense, we could adopt the position that the rule of law is not
a suitable nor promising label for the comparative analysis of potentially very different,
idiosyncratic experiences. This requires us to then ask: how abstract and ‘general’ can the
concept become before it loses its explanatory power? How far from the particular context
can we remove the concept of the rule of law before stripping it of all its analytical, critical
potential?
The sensible urgency of the just reiterated points of departure for our investigation
* This chapter has benefitted from generous comments and feedback from Daniel Drache
and Jothie Rajah. I am furthermore very grateful for conversations with Harry Arthurs on the
use of the term ‘rule of law’ in the present-day context and indebted to the editors of this volume,
Christopher May and the late Adam Winchester for very helpful guidance in finalizing the chapter.
1
Gareth Davies, What is a pluralist legal system, and is the EU one?, manuscript on file with
author, available at: http://www3.law.ox.ac.uk/denning-archive/news/events_files/Davies-2.pdf
2
See, e.g., James A. Dorn, The Rule of Law and Freedom in Emerging Democracies: A
Madisonian Democracy. There is no viable ‘Third Way’, FEE Foundation for Economic Education,
1 August 2001, available online.
57
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can barely hide what have long been open questions in scholarship regarding the rule of
law. The concept has been a key component in contemporary discourses in legal theory,
political philosophy, development theory and jurisprudence.3 Meanwhile, its definitional
openness, on the one hand, and its contextual variety, on the other, underscores the fact
that the rule of law raises a number of fundamental questions about the relationship
between law and politics and the relationship between law and the state, as well as about
the relationship between the rule of law and law itself.4 As the just referenced debates are
mostly associated with analytical traditions in legal theory, we want to leave them aside
for the time being and direct our attention to another field of inquiry into the rule of law.
Given the task of illuminating the ramifications of both legal pluralist and non-Western
approaches to the rule of law, it is warranted to start with a few observations about the
use and functions of distinctions in such an undertaking. One set of distinctions we are
confronted with in this project concern alleged differences between rule of law concep-
tions and, arguably, practices, between ‘the West’ and other parts of the world. The other
set of distinctions we will focus on in the context of this short contribution regards the
tension-ridden relationship between positive and legal pluralist theories and conceptions
of law. Commenting on both we will try to show how they are interrelated but also how
the investigation into alternative approaches to the rule of law is likely to start us off on
a journey deep into the secrets of law and (legal) culture. With this caveat in mind, this
contribution cannot hope to do much more than to identify some of the issues we should
keep in mind when approaching the rule of law in a manner that aspires to critically
engage not only its conceptual basis but also explore possibly varied ‘lives’ of the rule of
law in different times and spaces around the world. We shall, therefore, in the following
revisit some of the assumptions regarding the rule of law’s core components by placing
them in the context of different uses of the concept over time. This should help us to gain
a little more clarity of what might be achieved by contrasting ‘Western’ and ‘non-Western’
conceptions of the rule of law.
THE WEST AND THE ‘REST’: DREAMS OF UNIVERSALITY

AND THE LURE OF SUPREMACY
The invocation of ‘non-Western’ RoL conceptions itself is based on a complex set of

assumptions related, among others, to the idea of there being ‘a’ concept of the rule of law
which can be defined, explained and spelled out more or less coherently and effectively.
Of course, everyone is in agreement that there is no such singular concept and, further-
3
John K. Ohnesorge, The Rule of Law, University of Wisconsin Legal Studies Research Paper
1051/2007, 2: ‘The diversification of Rule of Law’s applicability across a wider range of academic
disciplines has led to an explosion of literature either debating the role of Rule of Law or employ-
ing it as a variable in economic and political development models.’
4
Neil MacCormick, The Legal Framework: Institutional Normative Order (1999); Joseph Raz,
The rule of law and its virtue, 93 Law Quarterly Review (1977), 195–229; Jeremy Waldron, The
concept and the rule of law, 43 Georgia Law Review (2008), 1–61; Barry R. Weingast, The politi-
cal foundations of democracy and the rule of law, 91 American Political Science Review (1997),
245–263.
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The rule of law 59
more, that the rule of law continues to be one of the least defined concepts or principles
in legal theory.5 A further assumption concerns the ability to locate – historically and
geographically – the origins of the concept of the rule of law. With these two assump-
tions operating somewhere in the background, the next step is to assume the possibility
of there being an account, a proven record of some sort, of the concept’s evolution, its
historical and cultural history, as well as of the experiences that mark its development.6
This history, to be sure, is a complex one: it bears the scars of conflict and contestation,
which is why we are able to appreciate that the now famous distinction between ‘formalist’
and ‘substantive’ conceptions of the rule of law7 is not a merely theoretical one, but is
reflective of the concept’s troubled journey through time. The here given task to address
‘non-Western’ approaches to and understandings of the rule of law prompts us to ques-
tion the basis on which this distinction can be made in the first place. Is it imaginable, in
other words, to assume, on the one hand, a Western place of origin for a concept which
over time has not only been associated with a set of universal traits but is remembered
for its past and present, colourful, inspiring as much as disturbing8 life, on the other?
Looking at the rule of law as a concept that ‘travels’,9 we need to consider the impact of
the rule of law ‘here’ as much as ‘there’. But, positing a contrast between ‘Western’ and
‘non-Western’ concepts and experiences of the rule of law begs the question about the
relationship between them and what factors need to be considered regarding the drivers,
forces and consequences of the concept’s impact in different parts of the world. Beginning
to appreciate the historical roots and instances of the concept’s journeys, transplantations
and ‘exports’ into contexts ranging from colonial rule10, imperial expansion,11 economic
5
See, e.g. Ohnesorge, Rule of Law (1997), above note 3, at 3: ‘Our tradition has produced no
agreed definition of the Rule of Law, and there is no important tradition of academic analysis and
explication of the term, as there is with the German Rechtsstaat ideal (. . .).’
6
See, e.g., Brian Z. Tamanaha, On the Rule of Law. History, Politics, Theory (2004), who traces
the concept’s history from classical Greece through the German middle ages into the ideational
realm of ‘liberalism’. See also Jonathan Rose, The Rule of Law in the Western World: An Overview,
35:4 Journal of Social Philosophy (2004), 457–470, 457: ‘The various ideas contained in Rule of
Law are very old, as perhaps is its emergence as an aspect of legal and political systems. However,
its expression as a formal component of liberal democracy is recent, likely a product of the 19th
century.’
7
Paul P. Craig, Formal and substantive conceptions of the rule of law: an analytical frame-
work, Public Law (1997), 467–487.
8
Such accounts emerge far and close from ‘home’: see, e.g., Jothie Rajah, Authoritarian Rule
of Law. Legislation, Discourse and Legitimacy in Singapore (2012), Nick Cheesman, Opposing the
Rule of Law. How Myanmar’s Courts Make Law and Order (2016), Sally Merry, What is the Rule
of Law? Perspectives from Myanmar, 9:1 Hague Journal on the Rule of Law (2017), 11-14, and
Nicholas Bagley, Trump’s legal attack on the ACA isn’t about health care. It’s a war on the rule of
law, Vox, 8 June 2018, available online.
9
William Twining, Have concepts, will travel: analytical jurisprudence in a global context, 1:1
International Journal of Law in Context (2005), 5–40.
10
Ananta Kumar Giri, Rule of Law and Indian Society. Colonial Encounters, Post-colonial
Experiments and Beyond, Jura Gentium. Rivista di filosofia del diritto internazionale e della politica
globale (2005), online: http://www.juragentium.org/topics/rol/en/giri.htm.
11
Mark Brown, ‘An Unqualified Human Good?’ On Rule of Law, Globalization, and
Imperialism, Law & Social Inquiry (2017), pre-publication version online. See also Lauren Benton,
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development12, ‘technical assistance’ and post-conflict settlement13 on to its contempo-

rary use in a transnational discourse around the crisis of democratic deliberation, the
rise of populism and a renewed focus on the ‘losers’ of globalization14, the rule of law
emerges as an ideological battle ground par excellence. It can either be a laboratory and
lens through which we embark on a critical analysis of the role of law in the development
of legal, economic and political cultures, or it can be an abstract, pristine formula and veil
underneath which are lions, lamb and slaughter.
These preliminary observations should already give us a slightly clearer picture of the
challenges involved in capturing what ‘are’ or is meant by ‘non-Western’ approaches to
the rule of law. While we can identify a number of by now iconic references to the rule of
law, its contents15 and its ‘virtues’16, it is important to appreciate that the ongoing engage-
ment with the concept in both affirmative and critical fashion attests to its importance
as a place of encounter as well as of contention, resistance and struggle.17 That means,
Made in Empire: Finding the History of International Law in Imperial Locations, Leiden Journal
of International Law (2018), pre-publication version online.
12
Optimistic: Thomas Carothers, The Rule of Law Revival, 77:2 Foreign Affairs (1998),
95–106. Not so much: William E. Scheuerman, Economic Globalization and the Rule of Law, 6:1
Constellations (1999), 3–25; Alvaro Santos, The World Bank’s Uses of the ‘Rule of Law’ Promise
in Economic Development, in: David Trubek & Alvaro Santos (eds.), The New Law and Economic
Development (2006), 253–300; Balakrishnan Rajagopal, Limits of Law in Counter-Hegemonic
Globalization: The Indian Supreme Court and the Narmada Valley Struggle, in: Boaventura de
Sousa Santos & Cesar Rodriguez-Garavito (eds.), Law and Globalization from Below. Towards a
Cosmopolitan Legality (2006), 183–217, specifically 183-193, and 211; Yves Dezalay & Bryant G.
Garth, The Internationalization of Palace Wars. Lawyers, Economists, and the Contest to Transform
Latin American States (2002), 4: ‘It is their belief that a good legal program will improve the
position of the disadvantaged. (. . .) This optimism (. . .) is part of the social context that must be
explained. The participants in these efforts to export a socially progressive or otherwise reformist
agenda tend to be characterized by a partial blindness that is structurally determined by who they
are and their strong conviction about that role.’
13
Heinz Klug, Constituting Democracy: Law, Globalisation and South Africa’s Political
Reconstruction (2000); Jane Stromseth, Post-Conflict Rule of Law Building: The Need for a Multi-
Layered, Synergetic Approach, 49 William & Mary Law Review (2008), 1443–1471.
14
Michael Cox, The Rise of Populism and the Crisis of Globalisation: Brexit, Trump and
Beyond, 28 Irish Studies in International Affairs (2017), 9–17.
15
A.V. Dicey, Introduction to the Study of the Law of the Constitution (9th ed., 1952 [1885]),
arguably ‘inventing’ the term of the rule of law and famously developing it in three steps (‘the
omnipresence or undisputed supremacy throughout the whole country of the central government’
(id., at 183), ‘the rule or supremacy of law’ (id., at 183–194), and that ‘Our constitution, in short,
is a judge-made constitution, and it bears on its face all the features, good and bad, of judge-made
law.’ (id., at 196), and leads him to a definition of the rule of law through the following features: 1.
‘[t]he absolute supremacy or predominance of regular law as opposed to the influence of arbitrary
power’, 2. the ‘equality before the law, or the equal subjection of all classes to the ordinary law of
the land’, and 3. ‘the rules which in foreign countries naturally form part of a constitutional code,
are not the source but the consequence of the rights of individuals, as defined and enforced by the
courts’ (id., at 202–203).
16
Raz, Rule of Law and Its Virtue (1977), above, note 4.
17
Oscar Vilhena Viera, Inequality and the subversion of the rule of law, in: César Rodríguez-
Garavito (ed.), Law and Society in Latin America. A New Map (2015), 23–42, 24; Katharina Pistor,
Antara Haldar, & Amrit Amirapu, Social norms, rule of law, and gender reality: an essay on the
limits of the dominant rule of law paradigm, in: James L. Heckman, Robert L. Nelson, & Lee
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The rule of law 61
however, that our engagement with the rule of law and its alternatives, its critiques and
contestations takes us to the place where law meets ‘reality’, in other words an engagement
with the rule of law as undertaken here, becomes part of a distinctly socio-legal analysis
of the rule of law. This in turn, has significant consequences for the analysis which we are
set to undertake here. It requires us to identify the perspectives from which the topic of
‘non-Western’ approaches to the rule of law will be carried out and what will be excluded.
In that regard, this chapter can only offer a glimpse at the discursive contexts in which
opposing understandings and uses of the rule of law have become audible. Rather than
attempting to provide an even cursory overview of ‘non-Western’ rule of law conceptions
with regard to, for example, the status of the concept in different legal cultures18 or
religions19 around the world, the aim of this contribution is different and considerably
more modest. Recognizing the importance of what, in fact, Dicey had already highlighted
in his elaboration of the rule of law with regard to the need to move from the abstract to
its concrete manifestations and practices20, we take another cue from William Twining’s
call for a revision of ‘general jurisprudence’ that is context-sensitive, inter-disciplinary
and dependent on and sensitive to ethnographic input.21 In that vein, we will dedicate
the remainder of this chapter to lay out some of the methodological concerns that we
think are central to an effective ‘cosmopolitan’22 engagement with law between ‘Western’
and ‘non-Western’ approaches to (the rule and the role of) law. This approach is based
on the conviction that a conversation about the value and limits of law, and specifically,
the rule of law, may lead to greater awareness of one’s own blind spots but also foster the
development of a critical understanding of analogies, similarities as well as frictions and
differences. This project is further inspired by the sentiment that a critical analysis must
seek to unpack and challenge one’s own tacit assumptions. This would mean that we
approach the qualities associated with the rule of law on a conceptual level with caution,
Cabatingan (eds.), Global Perspectives on the Rule of Law (2010), 241–278, 254: ‘Rather than sug-
gesting that the rule of law paradigm is under-theorized, we suggest that it is based implicitly on a
social theory which is deeply flawed.’
18
See, e.g., Rachel Sieder & P. Domingo, Promoting the Rule of Law: Perspectives on Latin
America (2001); Tom Ginsburg & Tamir Moustafa (eds.), Rule by Law: The Politics of Courts in
Authoritarian Regimes (2008); Hisahsi Owada, The Rule of Law in a Globalizing World: An Asian
Perspective, 8 Washington University Global Studies Law Review (2009), 187–205; Melissa Curley,
Björn Dressel & Stephen McCarthy, Competing Visions of the Rule of Law in Southeast Asia:
Power, Rhetoric and Governance, 42:2 Asian Studies Review (2018), 192–209.
19
See, e.g., Timur Kuran, The rule of law in Islamic thought and practice: a historical perspec-
tive, in: Heckman et al (eds.), Global Perspectives (2010), above note 17, 71–89; Lawrence Rosen,
Islam and the Rule of Justice (2018), 173: ‘Thus in the case of the Arab Middle East (. . .) we can
see that there are indeed constraints on power, that a process based on a cultural idea of person
perception takes pride of place over formal substantive rules, that placing people back into work-
able relationships may be a better way to secure society against chaos than rigid application of
formal strictures, and that in each instance – and with considerable local and historical variation
– it is possible to discern many related principles that are coincident with a popular sense of when
justice is being done.’
20
Dicey, Introduction (1952 [1885]), above note 15, at 204–205.
21
Twining, Have concepts will travel (2005), above note 9; ibid., General Jurisprudence (2009).
22
This term is here used in reference to the work by Boaventura de Sousa Santos and César
Rodríguez-Garavito, for example, in their landmark contribution: Law and Globalization from
Below. Towards a Cosmopolitan Legality (2006).
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for example when we differentiate between formal and substantive conceptions of the
rule of law. Rather than using this dualist characterization as a formula through which we
should be able to study rule of law examples around the world, we must remain mindful
of the specific local and historical context in which we have learned to operationalize the
distinction. Secondly, then, when we revisit the trajectory of the rule of law as a token in
liberal thought and its appropriation by thinkers on the right23 as much as on the left24, we
should be mindful not to confuse ‘our’ struggle with ‘theirs’. Socio-legal scholars have in
that regard been producing a rich and resourceful analysis of local rule of law experiences,
which defy generalization and reiterates the here underlined need to focus on depth, not
breadth, and to foster differentiated ethnographic, empirically based assessments of the
rule law.
THE RULE OF LAW: A LEGAL PLURALIST PERSPECTIVE

In the Narmada Valley struggle law was always very relevant. From private law relating to
land acquisition, to constitutional rights, to international human rights law, the struggle in the
valley was profoundly affected. The political opportunities for the struggle were severely con-
strained by private law, for instance in the kinds of claim that the movement could legitimately
advance within the system. While private law and regulatory law relating to the environment
were more relevant during the initial years of the struggle, international law became more
relevant later and constitutional law was crucial in more recent years. Secondly, the meaning
of ‘law’ has changed irrevocably from a normative order within territorial states to a global
normative order. As such, this requires a broad framework that is capable of appreciating the
local and global engagements between law and social movements. This could be contrasted
with traditional assessments of the role of law in social movement struggles which remain
centered on national law. In the case of the Narmada Valley struggle, law operated at virtually
all conceivable levels and the role of international law was crucial. Thirdly, the ‘law’ that social
movements engage with includes not only state law, but inter-state, sub-state, and non-state law
as well.25
This excerpt at the end of Balakrishnan Rajagopal’s critical account of the interac-
tion between different actors and norms in the Narmada Valley struggle in India in
the 1990s provides a suitable segue into the next section of our analysis. As suggested
at the outset, the critical engagement with allegedly ‘non-Western’ concepts of the rule
of law must involve an appreciation of the tension between (formal, official, positive)
‘law’ and (informal, unofficial, non-)law, which lies at the heart of the theory of legal
pluralism. The reason for this linkage can be found in the fact that a legal pluralist
approach to the study of ‘foreign’ legal orders is more likely to capture the dynamics
between different bodies and types of norms that might be at work locally than if we
were to unquestioningly apply an existing legal understanding to the study of a legal
‘system’ in a different place. Legal pluralism, as we will see, applies a more receptive
and fine-grained lens to the study of norms and social relations and thus promises
a more accurate picture of the norms that – actually – govern a community’s life.
23
Friedrich Hayek, The Road to Serfdom (1944); ibid., The Constitution of Liberty (1960).
24
E.P. Thompson, Whigs and Hunters. The Origins of the Black Act (1975)
25
Rajagopal, Limits of Law in Counter-Hegemonic Globalization, note 12 above, at 211.
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The rule of law 63
Furthermore, though, a specific focus on the ‘actors, norms and processes’ in a given
place holds the promise of shedding more light on the way in which legal norms arise
out of, are embedded in and evolve in relation to a specific socio-economic and cultural
setting. In difference to an approach based on positive law, traditionally associated with
an understanding of law as part of a nationally confined and defined collective, the
study of the actors, norms, processes (A-N-P) constellation does not a priori shut the
windows on the interrelations between ‘local’ and ‘international’ norms, actors and the
ways in which these evolve.
We will have to say more about the concept of A-N-P within a methodological
framework of transnational legal pluralism. But, before that, a number of clarifications
are in order with regard to the here made distinction between ‘law’ and law. ‘Law’ is, on
the one hand, constituted and constantly challenged, amended and reformed through the
elaboration and contestation of rules and principles over time. While such efforts do not
occur in a complete vacuum of time and space, they may retain a considerably theoretical
and abstract nature. We can, in other words, either theorize about the rule of law in a
manner which is quite removed from a concrete social, political, historical and cultural
context or take a more ethnographic stance, if you will, and explore possible formations
of the ‘rule of law’ in very divergent settings around the world. While the first approach
appears to be based on a confident use of the concept of law to depict a formalized body
of norms, generated within an institutional framework of norm creation and enforce-
ment, the latter might be characterized as being more inclusive and tolerant with regard
to different types of the actors, norms and processes associated with law. Let us refer to
the first group of such efforts, for the sake of clarity, as ones that regard ‘law’. On the
other hand, a different and, arguably, wider and more inclusive understanding of law,
namely law, might furthermore capture the lived experience of social ordering in all of
its geographical, social, cultural and historical diversity.26 We know, of course, that ‘law’
and law live and, indeed, co-exist in an intriguing relationship of affinity and rejection,
mutual recognition and blissful ignorance. Any assertion of ‘law’, then, inevitably occurs
with law as its silent sibling, its alter ego, its embarrassment and correction. This is, in
essence, the stuff of legal pluralism, and as we can see, the ‘law’/law tension pervades
all of our dealings with law.27 As a consequence, law is and can only be ‘law in context’,
and this acknowledgement of law’s contextual nature should be seen to go beyond
what is regularly associated with a particular strand of legal theory, which has its basis
in sociological28 and anthropological29 analysis of legal norms. In the here promoted
concept of ‘law in context’, a contextual understanding of law also applies to theories
26
See, e.g., Craig Proulx, Current Directions in Aboriginal Law/Justice in Canada, XX
Canadian Journal of Native Studies (2000), 371–409; Eve Darian-Smith, Ethnographies of Law, in:
Austin Sarat (ed.), The Blackwell Companion to Law and Society (2006), 545–568.
27
Insightful presentations of legal pluralism are offered by Sally Engle Merry, Legal Pluralism,
22 Law & Society Review (1988), 869, and Brian Z. Tamanaha, Understanding Legal Pluralism:
Past to Present, Local to Global, 30 Sydney Law Review (2008), 375–411. A brilliant and com-
prehensive study has recently been presented by Ralf Seinecker, Das Recht des Rechtspluralismus
(2015).
28
Roger Cotterrell, The Sociological Concept of Law, 10:2 Journal of Law and Society (1983),
241–255.
29
Annelise Riles, Anthropology, Human Rights and Legal Knowledge: Culture in the Iron
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of law in a philosophical and analytical vein: no theory exists in a veritable vacuum

but is by default part of explicit and implicit assumptions, categorizations and world
constructions.30
Several crucial parameters become visible here: on the one hand, scholars in these
fields debate the horizontal and vertical ‘situatedness’ of legal orders while simultane-
ously emphasizing the contextual embeddedness of the legal architecture in historically
evolving political orders and, more particularly, that of the law’s role in the West’s
emergence of the nation-state31 and the capitalist order.32 On the other, the RoL’s
normative ambiguity, in other words, its slippery assertion of a value system caught up,
endorsed and given validity in the constitution and the execution of an institutional-
ized legal architecture, prompts challenge and resistance on various other levels. The
RoL both posits and questions normative assertions of a legal order and how and for
whom it is established. Who is setting up the RoL and whose values does it serve to
represent and protect? As such, the critique of the RoL cannot be sensibly separated
from an assessment of the historical and socio-economic context in which a particular
instantiation of the RoL is being debated, something which E.P. Thompson so master-
fully laid out in the bulk of Whigs and Hunters that precedes the famous observations
on the rule of law at the end of the book, too often cited in isolation from the rest.33
In that context, then, it also became visible how the RoL raises significant concerns
regarding its relation to other formations of ‘legal’ ordering. One of the key questions
in Thompson’s analysis concerned the relationship between the legal order and the
newly introduced system, represented by the ominous ‘Black Act’, it confronted.
Rather than presupposing a legal void, the carefully presented analysis made visible
and tangible the tension that existed between what was already in place and the more
recent superimposition. The recognition of a legal pluralist universe in which a legal
Cage, 108:1 American Anthropologist (2006), 52–65; Mark Goodale, Anthropology and Law. A
Critical Introduction (2017).
30
In this vein also Jesús Vega, Legal philosophy as practical philosophy, Revus. Journal
for Constitutional Theory and Philosophy of Law (2018), 1–24, 2: ‘I argue that the nature of
law itself makes its practice inevitably and ineluctably associated with philosophical ideas and
conceptions.’
31
Austin Sarat, Lawrence Douglas and Martha Merrill Umphrey, ‘Where (or What) Is the
Place of Law? An Introduction’, in: The Place of Law 1 (Sarat, Douglas and Merrill Umphrey, eds.,
2006), 2: ‘[Q]uestions of jurisdiction lead us to consider the very sources and limits of legal author-
ity, and to consider the law’s role in the construction of the classical political form of Western
modernity: the sovereign nation-state.’
32
‘Weber’s account sees the rule of law as contributing to the rationalization of contemporary
capitalist society, but (in a dialectical relationship) also reflecting such rationalization.’ May (n 8),
34. In that vein, compare David Trubek’s seminal analysis: David Trubek, ‘Max Weber on Law and
the Rise of Capitalism’, Wisconsin Law Review 720 (1972), at 724, 725:
Weber believed that European law was more ‘rational’ than the legal systems of other civiliza-
tions, that is, it was more highly differentiated (or autonomous), consciously constructed, gen-
eral, and universal. [. . .] The failure of other civilizations to develop rational law helped explain
why only in Europe could modern, industrial capitalism arise.
33
Thompson (n 24).
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The rule of law 65
positivist order intervenes and with which it will (perhaps forever) stand in tension, is
an insight of crucial significance.
When the renowned anthropologist, Sally Engle Merry, published a short article on
‘Legal Pluralism’ in the Law and Society Review in 1988, its appearance marked an
important intervention in an already lively debate, which touched upon the nerve of legal
theory right and left. At the outset of her article, Professor Merry observed:
The intellectual odyssey of the concept of legal pluralism moves from the discovery of indig-
enous forms of law among remote African villagers and New Guinea tribesmen to debates
concerning the pluralistic qualities of law under advanced capitalism. In the last decade, the
concept of legal pluralism has been applied to the study of social and legal ordering in urban
industrial societies, primarily the United States, Britain, and France. Indeed, given a sufficiently
broad definition of the term legal system, virtually every society is legally plural, whether it has
a colonial past. Legal pluralism is a central theme in the reconceptualization of the law/society
relation.34
Looking at the RoL through a legal pluralist lens reveals a complex and constantly
shifting and evolving assemblage of actors, norms, and processes. Instead of a neatly
constituted and institutionalized system of, say, ‘checks and balances’,35 ‘constitutional
democracy’,36 and the legality principle,37 we are confronted with a living organism,
pulsating and shaking, multidimensional and with sensitive nervous fibres, operating at
different levels of the political, cultural and socio-economic systems it relates to. Most
importantly, however, the legal pluralist RoL presents us with a methodological challenge
echoing those that early private-law oriented approaches to comparative law posed for
efforts to elaborate a comprehensive framework for the study of comparative public law;
one which does not reduce public law to anything ‘governmental’, done by the state.38
The legal pluralist perspective on the RoL must, in response, seek to de-centre the mate-
rial infrastructure of the state, its institutions, and processes, as based on constitutional
and administrative law.
34
Sally Engle Merry, ‘Legal Pluralism’, 22 Law & Society Review 869 (1988), 869.
35
Compare Federalist Paper No. 51, ‘The Structure of the Government Must Furnish the
Proper and Balances Between the Different Departments’, http://avalon.law.yale.edu/18th_century/
fed51.asp
36
Michel Rosenfeld, ‘The Rule of Law and the Legitimacy of Constitutional Democracy’, 74
Southern California Law Review 1307 (2001), 1308.
37
Compare the RoL definition as offered by the World Justice Project, which posits, inter alia,
that: ‘The government and its officials and agents as well as individuals and private entities are
accountable under the law.’ See http://worldjusticeproject.org/what-rule-law.
38
Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law, 3rd ed. (1996);
Jonathan Hill, ‘Comparative Law, Law Reform and Legal Theory’, 9 Oxford Journal of Legal
Studies 101 (1989); Sunil Khilnani, Vikram Raghavan and Arun K. Thiruvengadam, ‘Introduction:
Reviving South Asian Comparative Constitutionalism’, in: Comparative Constitutionalism in South
Asia 1 (Khilnani, Raghavan and Thiruvengadam, eds., 2013), 11.
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LEGAL PLURALISM AND THE MANY WORLDS OF LAW
At the same time, how may we explain the considerable gap between legal pluralist
approaches to the study of the RoL and other RoL work? Is there a valid concern of
the use of a legal pluralist lens leading us too far away from what would otherwise have
been the conceptual frameworks to be employed for the task of studying the RoL in
a transformed and globalized context? But, which concepts would be adequate today?
Which conception, definition, or model of the RoL should we take as our reference
point and which disciplinary (law, political science, ‘governance studies’, sociology,
anthropology) or sub-disciplinary frameworks (comparative, ‘global’ and ‘transnational’
constitutional law,39 ‘global administrative law’,40 comparative politics, ‘fragmented
sovereignties’, ‘assemblages’41 or Sharma and Gupta’s ‘anthropology of the state’42)
should be adopted?
Rejecting a traditional and highly influential North-American and European bias and
focus on the part of much ‘comparative constitutional law’,43 scholars from the ‘global
south’, in particular, have been arguing for a widening, if not a reversal of perspective.
Scholars such as Rachel Sieder, Javier Couso and Alexandra Huneeus, picking up on
the theme of the ‘judicialization of politics’,44 have recently pressed for a legal culture
perspective on the already actively studied processes of judicial interventions in different
societal transformation processes in Latin America. Sieder and her colleagues argue for a
three-fold expansion of the existing analysis by political science, theory, and law scholars
on the role played by law and legal institutions in Latin America. First by claiming a
particular role of the concept of legal culture to expose the symbolic and discursive
dimensions of law, second, by drawing on the ‘law and society’ movement to render more
visible the impact that extrajudicial actors and developments have on the formal legal
system, and, thirdly, by contextualising the ‘judicialization of politics’ within the concrete
developments in Latin America (rather than comparing local instances against an alleged
matrix imported from the North): ‘. . . judicialization in the developing world unfolds in a
39
For an overview of the literature at the time, see Peer Zumbansen, ‘Comparative, Global
and Transnational Constitutionalism: The Emergence of a Transnational Constitutional Pluralist
Order’, 1 Global Constitutionalism 16 (2012).
40
Benedict Kingsbury, Nico Krisch and Richard Stewart, ‘The Emergence of Global
Administrative Law’, 68 Law & Contemporary Problems 15 (2005).
41
Stephen J. Collier and Aihwa Ong (eds), Global Assemblages: Technology, Politics, and Ethics
as Anthropological Problems (2008).
42
Aradhana Sharma and Akhil Gupta (eds), The Anthropology of the State: A Reader (2005).
43
‘The newly revitalized field of comparative constitutional law has tended to let Europe and
North America and Europe dictate the agenda.’ Rosalind Dixon and Tom Ginsburg, ‘Introduction:
Comparative Constitutional Law’, in: Research Handbook on Comparative Constitutional Law 1
(Dixon and Ginsburg, eds., 2011), 1.
44
Compare here Ran Hirschl, ‘The Judicialization of Politics’, in: The Oxford Handbook of
Law and Politics 119 (Caldeira/Kelemen andWhittington, eds, 2008). See also the contributions to
Rachel Sieder, Line Schjolden andAlan Angell (eds), The Judicialization of Politics in Latin America
(2005). A fascinating study on the interpretive-political space opened up by the judicialization of
politics is offered by Philip Liste, ‘Transnational Human Rights Litigation and Territorialized
Knowledge: Kiobel and the “Politics of Space” ’, 5 Transnational Legal Theory 1 (2014).
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The rule of law 67
context in important ways different from that of developed countries with longer histories
of centralisation of power’.45
Similarly, the renowned Colombian socio-legal scholar, César Rodríguez-Garavito,
in 2015 published a forceful call-to-arms for a new, locally based and locally informed
approach to the study of law and society with regard to the transformations currently
underway in a number of countries in Latin America. Lamenting that ‘Latin American
scholars spend an excessive amount of time, resources and energies assimilating, translat-
ing and interpreting (or simply “staying current” with) materials in the North’, while
with regard to legal theory ‘[i]n their writings about the law, Latin American authors
have a marked predilection for exegesis and commentary without reference to the actual
practice of law or, even less, the reality of how law is applied in local contexts’, Rodríguez-
Garavito concludes, that ‘[m]any scholars try to explain institutions and legal practices
in the region by comparing their realities with ideal types (in a normative sense, that is to
say, as superior models) extracted from an uncritical reading of the realities of Europe
or the United States’.46 Drawing, on the one hand, on Sousa Santos’ image of law as ‘a
map of misreading’, and, on the other, on Diego López’ seminal study from 200447 and,
in particular, López’ suggestion to distinguish between (the North as) a ‘site of produc-
tion’ and (the South as) a ‘site of reception’ for legal theory, legal-political concepts and
legal philosophical principles,48 Rodríguez-Garavito sets out to propose a ‘new legal
45
Alexandra Huneeus, Javier Couso and Rachel Sieder, Cultures of Legality: Judicialization
and Political Activism in Contemporary Latin America, in: Cultures of Legality. Judicialization
and Political Activism in Contemporary Latin America 3 (Couso, Huneeus and Sieder, eds.,
2010), 5.
46
César Rodríguez-Garavito, ‘Remapping Law and Society in Latin America. Visions and
Topics for a New Legal Cartography’, in: Law and Society in Latin America. A New Map 1
(Rodríguez-Garavito, ed., 2015), 3, 4.
47
Diego Eduardo López Medina, Teoría impura del derecho. La transformación de la cultura
jurídica latinoamericana. Prólogo de Duncan Kennedy (2004), 15–21.
48
López Medina, Teoría impura, at 15:
La filo Sofía del derecho presenta un grueso blindaje frente a un posible asalto del perspectiv-
ismo teórico. De esta forma se genera la impression que la filosofía de derecho son discursos
abstractos de alcance global. (. . .) Ese campo intellectual transnacional en el que los iusteóricos
nos hallamos inmersos podría denominarse teoría tansnacional del derecho (TTD) . . .
[The philosophy of law presents a firm armor front against a possible assault of theoretical
perspective. From this form arises the impression that the philosophy of law consists of abstract
discourses of global scope. (. . .) This intellectual transnational camp in which we found
immersed the jurisprudes might be called transnational theory of law (TTL) . . . [PZ transl.]
On p.16, he continues:
La TTD se produce comúnmente en un lugar que me gustaría characterizers abstractamente
come ‘sitio de producción’. Un sitio de producción parece ser un medio especial en donde se
producen discusiones iusteóricas con altos niveles de influencia transnacional sobre la naturaleza
y las políticas del derecho. Los sitios de producción están usualmente afincados en los círculos
intelectuales e instituciones académicas de Estados-nación centrales y prestigiosos.
And, on p.17, he goes to contrast them with the ‘sites of reception’:
La contracara des los sitios de producción son los sitios de recepción. Dentro de un sitio de
recepción, por lo general, la iusteoría producida allí ya no tiene la persuasividad y circulacíon
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cartography’. Considering the by now well-established routine practice of studying law

(and society) in Latin America through the use of imported and assimilated conceptual
approaches and categories, he asks a number of guiding questions:
How can we escape this trap? How can we overcome the continuing legacy of law-and-
development thinking? How can critical scholarly perspectives, from inside and outside the
region, foster a horizontal transnational dialogue among equals about law in Latin America?
How can we create a community of scholars that produce richer theoretical and empirical
analyses, and foster legal practices that deepen democracy, equality, plurality and human rights
in Latin America?49
Among the elements he identifies in the existing and emerging socio-legal scholarship in
Latin America that contributes to a more locally oriented analysis and understanding, is
the detailed study of different constitutionalist projects in the region, focusing not only on
the place of socio-economic rights in many constitutional texts, but on the particular role
played by constitutional courts and tribunals in enforcing such rights. Connected hereto
and indeed echoing the analysis offered by Sieder and her colleagues is the emphasis on
the importance of impact studies regarding the real-world consequences of ambitious
constitutional shifts.50 Another important aspect in this regard is the intensification in
courts as well as public debates of the treatment of and the engagement with the rights
of indigenous and other racially or ethnically discriminated peoples, brought into the
spotlight of wide attention, for example, through the growing resistance against the grant-
ing of mining licenses for foreign multinationals and the frequent cases of expropriation
and dramatic displacement of affected indigenous communities.51 In the words of Julian
Burger of the University Essex, who authored the 2014 research report on ‘Indigenous
Peoples, Extractive Industries and Human Rights’ for the European Parliament’s
Subcommittee on Human Rights: ‘Human rights abuses associated with the exploration
and exploitation of non-renewable resources include, among others, violation of the right
to life, forced displacement and destruction of the environment on which indigenous
peoples depend.’52 While these local consequences of foreign direct investment by foreign
amplia de la TTD, sino que, por el contrario, uno estaría tentado a hablar major de iusteoría
‘local’, ‘regional’, ‘particular’ o ‘comparada’.
49
Rodríguez-Garavito, Remapping, at 5.
50
Ibid., at 9.
51
Ibid., at 1112. See also the United Nations’ ‘Indigenous Peoples Indigenous Voices Fact
Sheet’, 2009, entitled: Indigenous Peoples and Industrial Corporations, available at: http://www.
un.org/en/events/indigenousday/pdf/Indigenous_Industry_Eng.pdf. There, it says on p.2:
Particularly serious challenges to indigenous rights are generated by mega-projects, such as
mining, oil, gas and timber extraction, monoculture plantations and dams. The impact of such
projects includes environmental damage to traditional lands in addition to loss of culture, tra-
ditional knowledge and livelihoods, often resulting in conflict and forced displacement, further
marginalization, increased poverty and a decline in the health of indigenous peoples.
52
Julian Burger, ‘Indigenous Peoples, Extractive Industries and Human Rights’, report for the
European Parliament’s Subcommittee on Human Rights, Strasbourg, 2014, available at: http://
www.europarl.europa.eu/RegData/etudes/STUD/2014/534980/EXPO_STU%282014%29534980_
EN.pdf, at p.5.
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The rule of law 69
multinationals in resource exporting regions around the world have long been a central
focal point and driver of demands for the sovereign permanent use of natural resources,53
the problem as described by protagonists and supporters of investor state arbitration
is regularly described as one of expropriation – of the corporation through regulatory
interventions by the host state.54 An article published in the fall of 2016 in the Harvard
Law Review concluded that: ‘one factor driving the continuing conflict between indig-
enous peoples and natural-resource development relates to power imbalances between
two divergent international legal regimes – indigenous rights and international investment
law – that demand that states act in conflicting ways regarding the same territory and
peoples’.55
Meanwhile, the continued and arguably growing dependency of the global economy
on accessing natural resources prompts further efforts in developing a basis for natural
resource exploitation within the body of foreign investment law,56 arguably without too
much concern for the perspective of the displaced peoples affected by such investment.
How, then, can we study the connections between these dramatic conflicts between
different contentions regarding the content of economic and political rights, on the one
hand, and the changing perspectives in comparative and ‘global’ constitutional law, on the
other? Which methodological tools are required to make visible the place of the ‘RoL’ in a
much wider space of legal-theoretical and socio-economic contention? An important set
of sign-posts can be taken from ‘law and development’ scholarship in which the assertion
of the RoL has always been contested and where scholars have long been stressing the
importance of studying the presently offered models of the RoL against a complex and
53
In the words of George Foster, these experiences form ‘part of a broad, global pattern of
encroachment of private commercial interests onto the lands of indigenous peoples, facilitated by
national governments, which began long ago and has never stopped’. See George K. Foster, ‘Foreign
Investment and Indigenous Peoples: Options for Promoting Equlibrium between Economic
Development and Indigenous Rights’, 33 Michigan Journal of International Law 627 (2012),
at 629.
54
OECD Directorate for Financial and Enterprise Affairs, Working Paper on International
Investment, ‘Indirect Expropriation’ and the ‘Right to Regulate’ in International Investment Law,
September 2004, available here: https://www.oecd.org/daf/inv/investment-policy/WP-2004_4.pdf,
highlighting the remaining lack of clarity in distinguishing between ‘indirect expropriation’ and
legitimate, non-compensable regulation:
Scholars recognised the existence of the distinction but did not shed much light on the criteria
for making the distinction. This may reflect reluctance to attempt to lay down simple, clear rules
in a matter that is subject to so many varying and complex factual patterns and a preference to
leave the resolution of the problem to the development of arbitral decisions on a case-by-case
basis (ibid., at 9–10)
55
See ‘The Double Life of International Law: Indigenous Peoples and Extractive Industries
(Developments in the Law)’, 129 Harvard Law Review (2016), 1755, online at: http://harvardlaw-
review.org/2016/04/the-double-life-of-international-law-indigenous-peoples-and-extractive-indus-
tries/ (conclusion)
56
Jorge E. Viñuales, International Investment Law and Natural Resource Governance.
E15Initiative. Geneva: International Centre for Trade and Sustainable Development (ICTSD) and
World Economic Forum, 2015, available at http://e15initiative.org/wp-content/uploads/2015/07/
Extractive-Vinuales-FINAL1.pdf.
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violent history of colonial rule and imperialism.57 This scholarship has very productively
informed and been in dialogue with work on indigenous rights, legal pluralism and the
more recently emerged concept of ‘transformative constitutionalism’.58
These, admittedly crudely preliminary and selective, insights gained from no more
than a glimpse at constitutionalism discourses in Latin America through the lens of
locally experienced transformations, shaped by local and regional discourses, political
and judicial interventions as well as public debates seems, however, to reveal the blind
spots of what Diego López Medina calls ‘TTD’. In applying a set of constitutional law
principles as they were developed in North America and Western Europe as a yardstick
against and in comparison, to which developments in other parts of the world can be
measured, the TTD represents no more than what Medina depicted as an ‘abstract
discourse of global scope’. What escapes the parameters of such abstract theorizing
is the particular nature of what happens locally, that cannot be studied from the high
oxygen-less altitude of theoretical discourses alone. And it is the resistance against such
abstract theorizing, in itself which is in danger of becoming hegemonic, that informs
and drives a lot of critical, local scholarship and which experts in the Global North and
the West need to engage with.59 As the twenty-first century promises more geopolitical
change and North-South and South-South shifts, traditions of American and European
constitutionalism are not likely to provide the all-sufficient conceptual and theoretical
guidelines.60
Similar impulses to rethink, to re-localize and to critically reassess the Western influ-
ence on shaping ‘global’ and ‘comparative’ constitutional law as the taken-for-granted
frameworks for thinking about the RoL also come from Asia. Not only are important and
ground-breaking judicial developments widely discussed as matters of not merely ‘local’
57
David Trubek, ‘Toward a Social Theory of Law: An Essay on the Study of Law and
Development’, 82 Yale Law Journal 1 (1972). See also the insightful critique of the continuities of
colonial understandings of the elite being in charge of the rule of law by Jorge L. Esquirol, ‘The
Latin American Tradition of Legal Failure’, 2 Comparative Law Review 1 (2011), 9.
58
Natalia Angel-Cabo and Domingo Lovera Parmo, ‘Latin American Social Constitutionalism:
Courts and Popular Participation’, in: Social and Economic Rights in Theory and Practice. Critical
Inquiries 85 (Alviar García, Karl Klare and Lucy A. Williams (eds) 2015).
59
See, e.g., the contributions to the important collection of essays resulting from a collabora-
tion among scholars in Colombia and the United States: in García, Klare and Williams, ibid. See
also two recent, well-informed overviews of theory developments in Latin America from Germany,
one from the director at the Max Planck Institute in Heidelberg (Armin von Bogdandy, Ius
Constitutionale Commune en América Latina - Beobachtungen zu einem transformatorischen Ansatz
demokratischer Verfassungsstaatlichkeit, 75 Heidelberg Journal of International Law (ZaöRV –
HJIL) 345 (2015), and one from a young legal scholar at the Viadrina University in Frankfurt
(Oder): Heiner Fechner, Neue Rechtstheorie(n) in Lateinamerika. Vom Alternativen Recht zum
Emanzipatorischen Rechtspluralismus, 48 Kritische Justiz 446 (2015).
60
Jean Comaroff and John L. Comaroff, Theory from the South: Or, How Euro-America is
Evolving Toward Africa (The Radical Imagination) (2011); Dipesh Chakrabarty, Provincializing
Europe. Postcolonial Thought and Historical Difference, 2nd ed. [orig. 2000] (2007); Hamid Dabashi,
Can Non-Europeans Think? (With a foreword by Walter Mignolo) (2015). See also Khilnani,
Raghavan and Thiruvengadam (n 38), 10–11: ‘Even as scholars have termed this era “the heyday
for scholars of comparative constitutional law and politics”, they are quick to acknowledge that
certain “foundational, ontological, epistemological and methodological questions concerning the
field’s purpose, scope and nature” still need to be addressed.’
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The rule of law 71
concern,61 but what becomes visible is a far-reaching critique of many of the inherited
assumptions regarding the purpose and scope of comparative constitutional law:
The dominant players in the field of comparative law extolled the virtues of a ‘functionalist’
approach which would use comparative models and examples to solve problems and arrive
at practical solutions. It was therefore natural that comparative constitutional law would also
be affected by this overall approach. Subsequently, comparative law also developed a more
‘universalist’ rationale, which posits that a community’s conceptions of law, politics, and justice
could be enriched by studying foreign experiences.62
Resisting the circular referral to the ‘usual suspects’ in global/comparative constitu-

tional law – including ‘Canada, Israel, Germany, New Zealand, South Africa, the United
Kingdom, and the United States’63 – locally informed efforts to give voice to alternative,
non-hegemonic and non-mainstream lines of constitutional law development are making
the map more detailed, but at the same time messier and less coherent.
The appellation ‘South Asia’ constitutes variegated feats of colonial and imperial geographies,
subsequently reinforced by the time-places of the Cold War and disciplines curiously named as
‘area studies’. [. . .] . . . given the ‘genius’ of colonial rule to produce ‘severely divided societies
suffused with ‘political’ constructions of ‘ethnicity’, questions concerning the enunciation of
basic human rights of religious, cultural, and linguistic minorities haunt forms of ‘South Asian
constitution-making and development.64
For Upendra Baxi, this assessment prepares the ground for a call for ‘a new postcolonial
nomenclature’, which is informed by a fundamental recognition of the colonial heritages
that influence constitution-making:
To state the obvious, SAC [South Asian Constitutionalism] founding choices remain ambiva-
lent. Choosing forms of governance is never an endeavour at wiping the slate of history clean!
More to the point, perhaps, are acts of re-writing that may render a little more legible some
future histories of SAC. And there is ‘more’ to governance than entailed in formulation of
constitutional texts, read merely as exercises in miming available Euro-American constitutional
models!65
Upendra Baxi’s critique of a tradition that, in benign neglect of the underlying colonial
heritage which continues to exert its stronghold via constitutional design export, foreign
61
Rehan Abeyratne and Nilesh Sinha, ‘Insular and Inconsistent: India’s Naz Foundation
Judgment in Comparative Perspective’, 39 Yale Journal of International Law (online) 74 (2014);
Sujit Choudhry, How to Do Comparative Constitutional Law in India: Naz Foundation, ‘Same
Sex Rights, and Dialogical Interpretation’, in: Comparative Constitutionalism in South Asia 45
(Khilnani, Raghavan and Thiruvengadam, ibid.), 46: ‘Is the Indian Constitution merely a legal
means to implement rights, that exist independently and apart from the Indian constitutional order,
in universal principles of liberal political morality?’
62
Khilnani, Raghavan and Thiruvengadam, ibid., Introduction, 11.
63
Choudhry, (n 61), at 47.
64
Upendra Baxi, ‘Modelling ‘Optimal’ Constitutional Design for Government Structures.
Some Debutant Remarks’, in: Comparative Constitutionalism in South Asia 23 (Khilnani, Raghavan
and Thiruvengadam (n 38)), 24, 25.
65
Ibid., 29.
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direct investment, and trade rules, is not merely directed against constitutional principles
of Western design. More specifically, the target is the narrowing of a horizon of possibili-
ties that results from having accepted the idea of a constitution and of constitutionalism
as ‘governance machines’, through which particular and externally imposed incarnations
of economic and political order are inscribed into a country’s DNA.66
This observation echoes the concerns raised in the context of clashing entitlements and
rights between foreign direct investment protagonists and local indigenous communities,
mentioned earlier. At the centre of that confrontation are competing interpretations of
the economic orientation of the constitutional text as it serves as the basis for a balancing
of individual and collective rights. In 2008, the indigenous rights scholar, Lillian Aponte
Miranda pointed to:
a marked increase in the number of natural resource extraction projects, often executed through
the joint efforts of states and transnational business enterprises, [which] has aggravated the threat
to indigenous peoples’ ability to control their traditional lands and resources. The execution of
natural resource extraction projects typically implicates indigenous peoples’ land tenure systems
and formal state law regarding the ownership and allocation of the territory at issue. Thus, these
projects often force an interface between the distinct legal orders of indigenous peoples and the
state.67
This example of clashes between a property rights-based understanding of inter-

national investment law, on the one hand, and indigenous uses and traditional title
to land, on the other, attains further poignancy in that it illustrates the point made
already by Max Weber. For Weber, already it was clear that a legal order does neither
emerge nor stand in isolation from the socio-economic developments that are going on
around it. And, as scholars in the newly revived tradition of Weber-inspired economic
sociology of law suggest, there is today a pressing urgency to unpack the law’s connec-
tion to, and its role in fostering, certain models of economic governance through state
institutions.68
THE RULE OF LAW AS A MEDIATOR OF ENTITLEMENTS:

NORTH, SOUTH, OR TRANSNATIONAL?
As much of Western legal and political theory remains focused on the analysis of the
rise of the nation state, the role and legacies of civil revolutions and the fate of the
(European, Westphalian) nation-state in the twenty-first century, post-colonial scholars
66
Ibid., 28.
67
Lillian Aponte Miranda, ‘Uploading the Local: Assessing the Contemporary Relationship
Between Indigenous Peoples’ Land Tenure Systems and International Human Rights Law
Regarding the Allocation of Traditional Lands and Resources in Latin America’, 10 Oregon Review
of International Law 419 (2008), 421.
68
See, inter alia, Sabine Frerichs, ‘From Credit to Crisis: Max Weber, Karl Polanyi, and the
Other Side of the Coin’, 40 Journal of Law and Society 7 (2013); Richard Swedberg, ‘The Case for
an Economic Sociology of Law’, 32 Theory and Society 1 (2003), and the compelling analysis by the
feminist/post-colonial scholar, Prabha Kotiswaran, ‘Do Feminists Need an Economic Sociology of
Law?’, 40 Journal of Law and Society 115 (2013).
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The rule of law 73
have been drawing different historical lineages in the construction of political identity
and sovereignty between the times of European colonial expansion and the present.69
The repercussions on law and legal theory are only slowly becoming fully accessible.
‘Post-colonial’ legal thought, if we were to apply this label to such an undertaking, is
impossible to define. Its very nature, which comes into focus only by looking at dif-
ferent critical approaches in a range of disciplines in the humanities at the same time,
appears thus to defy a unifying definition. What becomes visible then, are complex,
multi- and inter-disciplinary efforts to resist, unpack and challenge universalizing nar-
ratives, concepts and explanations as well as objectifying accounts and streamlining
historical narratives. Law and legal scholarship have played an intriguing part in such
efforts. With globalization prompting the unearthing of imaginary and conceptual
ties between the Western state and the idea of modernity,70 the effects on law and
politics and their particular nexus with the state have been considered as being just as
significant.71
What many RoL accounts tend to treat with less emphasis, then, is the ‘outside’ of the
story, the ‘other’, the alternative perspective on the described trajectory. This kind of
Eurocentrism has thus become object of various critical attacks,72 and legal scholarship’s
engagement with post-colonial studies should be welcomed as both irreversible and
transformative.73 Meanwhile, the implications of post-colonialism on the study of law
are as diversified as the field, the idea, and the conceptions (of post-colonialism) itself.
In the legal field with its notable, if still marginal74 engagement with post-colonialism,
69
Eve Darian-Smith and Peter Fitzpatrick, ‘Laws of the Postcolonial: An Insistent
Introduction’, in: Laws of the Postcolonial 1 (Darian-Smith/Fitzpatrick, eds., 1999).
70
Arjun Appadurai, Modernity at Large. Cultural Dimensions of Globalization (1996), 19:
‘Nation-states, as units in a complex interactive system, are not very likely to be the long-term
arbiters of the relationship between globality and modernity.’
71
Thus goes the standard account among many public lawyers, sociologists and political
scientists. See, e.g., Stefano Battini, ‘The Globalization of Public Law’, 18 European Review of
Public Law 27 (2006); Philip J. Cerny, ‘Globalization and the Changing Logic of Collective Action’,
49 International Organisation 595 (1995), and Ian Clark, Globalization and International Relations
Theory (1999), 4:
The emerging literature about globalization is characterized by marked diversity . . . However, as
a broad introductory generalization, it can be said that it is very much engaged in a debate about
the retreat or resilience of the state. [. . .] Viewed in these polarized terms, the state is either the
object or the subject of globalization.
Placing this against the background of a liberal theory, that is based on the distinction between
public and private and the national and international, is Jürgen Habermas, The Postnational
Constellation, trans. by Pensky (2001), Ch. 1.
72
See, e.g., the work by Boaventura de Sousa Santos, The Processes of Globalisation, Eurozine
http://www.eurozine.com/pdf/2002 (2002); see also the excellent collection and commentary by
William Twining, Human Rights, Southern Voices. Francis Deng, Abdullahi An-Na’im, Yash Ghai
and Upendra Baxi (2009).
73
Darian-Smith and Fitzpatrick (n 69), at 1: ‘It is by now close to a truism in the literature of
postcolonialism, and elsewhere, that European or Western identity is constituted in opposition to
an alterity that it has itself constructed.’
74
James T. Gathii, ‘TWAIL: A Brief History of Its Origins, Its Decentralized Network, and a
Tentative Bibliography’, 3 Trade, Law and Development 26 (2011).
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‘third world critical historiography, and international law,75 a very productive critique has
started to take hold in various subfields – ranging from human rights and international
trade, to investment and environmental law. This is both promising and inspiring.
75
Antony Anghie, ‘Colonialism and the Birth of International Institutions: Sovereignty,
Economy, and the Mandate System of the League of Nations’, 34 NYU. Int’l L & Pol 513 (2002);
see also Jochen von Bernstorff, German International Law Scholarship, and the Postcolonial Turn,
EJIL Talk! (Blog of the European Journal of International Law), 7 January 2015, available at:
http://www.ejiltalk.org/german-international-law-scholarship-and-the-postcolonial-turn/.
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5. Arbitrary power and the ideal of the rule of law1
Martin Krygier (with Adam Winchester)
Today the rule of law has become an unavoidable cliché in the jargon of international
organizations of every kind. It has also infiltrated contemporary political moralizing
virtually unopposed. This is a relatively recent occurrence,2 which one would not have
even predicted as recently as the 1980s.
This change has been so pervasive and dramatic that in virtually every introduction
to the subject, the rule of law logo-cliché has come to be joined by three supplementary
clichés: first, that the current vogue for the rule of law is unprecedented; second, that
along with popularity has gone promiscuity. The rule of law has a huge array of suitors
around the world, and it seems happy to hitch up with them all; and lastly, that the rule
of law now means so many different things to so many different people, it is so ‘essentially
contested’,3 that it is hard to say what it means. The rule of law’s meteoric rise from
controversial legal ideal to the universal international slogan of today has, then, given it a
great boost in brand recognition, but its now mandatory rhetorical presence has rendered
increasingly murky what the concept might mean, what the phenomenon might be, and
why anyone should care.
However, the concept speaks to important and enduring issues of politics and law, not
always apparent in current rule of law effusions. So this chapter begins in a deliberately
unoriginal way, identifying two venerable themes, related to each other as problem and
solution, namely, the arbitrary exercise of power and its institutionalized tempering.
It then argues that the ideal of the rule of law is a thoroughly good thing, even if not
every invocation of it is appealing. The penultimate section raises some normative and
sociological criticisms of current discussions, and the chapter concludes with a suggestion
about future directions. It calls for a social science that does not yet exist, in the light of
which it might turn out that, in order to pursue the ideals that led us to the rule of law, it
might to be time to go beyond it.
No one can dictate a uniquely correct meaning for the rule of law, or any incontest-
able stipulation of the values it serves. We are past that point. The term has become too
promiscuous, its purposes too many and varied. However, although an excavation of a
universal lowest common denominator may be impossible, it might help to recall concerns
that have motivated the vocabularies we have inherited. For the concept is part of much
1
A longer version of this article, ‘The Rule of Law: Pasts, Presents and Two Possible Futures,’
was published in Annual Review of Law and Social Science, Vol. 12, 2016, pp. 199–229. That article
has been revised and edited into its present form by Martin Krygier and Adam Winchester.
2
Krygier M. 2014. ‘The rule of law after the short twentieth century: launching a global
career’. In Law, Society and Community: Essays in Honour of Roger Cotterrell, ed. R Nobles,
D Schiff, pp. 327–46. Farnham, UK: Ashgate.
3
Waldron J. 2002. ‘Is the rule of law an essentially contested concept (in Florida)?’ Law Philos.
21(2):137–64.
75
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older moral and political arguments regarding the fundamentals of political organization,
concerns, and ideals, both agreed and contested.
ARBITRARY POWER
Many problems have been identified for the rule of law to solve, perhaps too many.
However, one that has endured the centuries has to do with perversions and pathologies
of power and how it might be rendered safe, and then, more positively, helpful, rather than
loom as a perennial source of threat and fear over those subject to it.
The focus is on power and how it is exercised. What makes power problematic is not its
mere existence, but the potential for its abuse. Power and its disparities cannot be elimi-
nated and power is necessary for all sorts of good things, so while rule of law traditions
do not seek to eliminate either power or all its disparities, they do seek to temper power in
ways that limit its potential excesses. In particular, rule of law traditions have particularly
focused on arbitrary exercise of power, often using precisely that word, as the anti-hero
in the rule of law story.
The common thread has been that left to their own devices wielders of sig-
nificant power cannot be relied on to avoid exercising it arbitrarily or to resist the
incentives to wield power in their own interest rather than in the public’s. Thus we
need to hedge our bets. Even if the power-wielders’ intentions were munificent and
public-oriented, the possibility of arbitrary exercise of power would still be a real
and perennial concern because even the potential of its arbitrary exercise diminishes
subjects’ freedom.4 Arbitrary power causes subjects’ lives to be fearful;5 denies them
respect, dignity,6 and moral equality;7 and destroys possibilities of fruitful cooperation
among citizens and between citizens and states.8 Several traditions of thought have put
the rule of law at the centre of their reflections on what might be done to avoid such
abuses and harms.
Arbitrariness is notoriously undertheorized.9 However there are at least three different
examples of it; three ways in which subjects and/or citizens are made vulnerable to power,
that can be exercised without the requirement that their legitimate interests, expectations,
and opinions be taken into account.
4
Pettit P. 1997. Republicanism: A Theory of Freedom and Government. Cambridge, UK:
Cambridge Univ. Press. 1st ed.
5
Shklar J. 1998. ‘Political theory and the rule of law’. In Political Theory and Political Thinkers,
ed. S Hoffmann, pp. 21–37. Chicago: Univ. Chicago Press.
6
See: Fuller L. 1969. The Morality of Law, New Haven, CT: Yale Univ. Press; Waldron J.
2011a. ‘Thoughtfulness and the rule of law’. Br. Acad. Rev. 18:1–11; Waldron J. 2011b. ‘The rule
of law and the importance of procedure’. In Getting to the Rule of Law, ed. JE Fleming, pp. 3–31.
Nomos No. 50. New York: N.Y. Univ. Press.
7
See: Gowder P. 2016. The Rule of Law in the Real World. Cambridge, UK: Cambridge Univ.
Press; Sempill JA. 2016. ‘Ruler’s sword, citizen’s shield: the rule of law and the constitution of
power’. J. Law Polit. 31:333–415.
8
Hayek FA. 1960. The Constitution of Liberty. London: Routledge & Kegan Paul.
9
See: Endicott T. 2014. ‘Arbitrariness’. Oxford Legal Stud. Res. Pap. No. 2/2014. http://ssrn.
com/abstract=2378858; Gowder. 2016; Sempill. 2016.
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Arbitrary power and the ideal of the rule of law 77
One form is found where power-wielders are not subject to routine, regular control or
limit, or accountability to anything other than their own will or pleasure. This might well
have been the original notion of the term: Exercise of power is arbitrary to the extent that
it is ‘subject just to the arbitrium, the decision or judgement of the agent; the agent was
in a position to choose it or not choose it, at their pleasure.’10 In a second sense, power is
exercised arbitrarily when those it affects cannot know, predict, understand, or comply
with the ways power comes to be wielded. That is the form typically responded to in the
various ‘laundry lists’11 of formal characteristics of legality or the rule of law – clear,
prospective, public, etc12 – and it is true that if one cannot know how power is to be
exercised, because its grounds are, for instance, secret, retroactive, too variable to know,
vague beyond specification, impossible to perform, or exercised in ways unrelated to the
rules that purport to govern them, then one has been treated arbitrarily.
The common law tradition from the medieval period to the eighteenth century laid
more emphasis on avoiding the first sort of arbitrariness;13 it was less concerned with the
law’s clarity than with its superiority, even to the king.14 Post-eighteenth century legislative
developments in England,15 and the contemporaneous development of the concept of
Rechtsstaat16 in Europe, put more emphasis on the second. Power that is unlimited and
power that is unruly are not the same, but for those at the receiving end both are arbitrary.
A third way in which power can seem arbitrary is when the exercise of power, even if
tempered and/or predictable, allows no space or makes no means available for its targets
to be heard, to question, to inform, or to affect the exercise of power over them and no
requirement that their voices and interests be considered in the exercise of that power.
In recent writings, Waldron17 has stressed the importance of this dimension and of
procedural elements of law, and strong traditions in law, that require attention to such
concerns, that do not allow those subject to power to be treated ‘like a rabid animal or a
dilapidated house’. Waldron concentrates on how litigants are treated in courts, but the
point is larger than that.
A regime is not home free because it scores well (low) on one but not another dimension
of arbitrariness. It should do well on all three. There are all sorts of benefits that might
accrue to a regime that applies stable and understandable rules but if rulers are free to
10
Pettit. 1997, p. 55.
11
Waldron. 2011b.
12
See: Walker GDeQ. 1988. The Rule of Law: Foundation of Constitutional Democracy.
Carleton, Aust.: Melbourne Univ. Press; Raz J. 1979. ‘The rule of law and its virtue’. In J. Raz,
The Authority of Law: Essays on Law and Morality, pp. 210–29. Oxford: Clarendon; Fuller. 1969.
13
See: McIlwain C. 1947. Constitutionalism: Ancient and Modern. Ithaca, NY: Cornell Univ.
Press. rev. ed; Palombella G. 2012. È possibile una legalità globale? Il Rule of law e la governance del
mondo. Bologna, Italy: Il Mulino.
14
See: Reid JP. 1977. ‘In legitimate stirps: the concept of ‘arbitrary,’ the supremacy of
Parliament, and the coming of the American Revolution’. Hofstra Law Rev. 5(3):459–99; Reid
JP. 2004. Rule of Law. The Jurisprudence of Liberty in the Seventeenth and Eighteenth Centuries.
DeKalb: North. Ill. Univ. Press.
15
Reid. 2004, ibid.
16
Krygier M. 2015. ‘Rule of law (and Rechtsstaat)’. In International Encyclopedia of the Social
and Behavioral Sciences, Vol. 20, ed. JD Wright, pp. 780–87. Oxford: Elsevier. 2nd ed.
17
Waldron J. 2011b.
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act purely at their ‘sweet will and whim’18 even if they choose not to, or if the rules shut
those affected out from consideration, subjects (more accurately objects) of power are
then vulnerable to its arbitrary exercise.19
Commitment to tempering power however is not absolute; first, it is more urgent as
arbitrariness is more extensive, for arbitrariness comes in degrees. For some way along
the scales, less arbitrariness in any of these senses is better. But there are vices that
go with constraints so rigid that those in power can exercise no initiative, flexibility,
judgment, wisdom, or attention to substance or particulars; indeed, such constraints
may generate arbitrariness of their own. These are very old themes and concerns.20
Secondly, the rule of law is never the only thing we want, and so its purity might well
need to be balanced against other goals that we deem valuable.21 Moreover, when the
exercise of power is in large measure routinely and reliably tempered, different values
might be contemplated more safely and helpfully than otherwise.22 That power should
be prevented from being arbitrary is a strong consideration always to be borne in
mind, but it should not be thought of as an automatic conversation stopper in every
exercise of power, in every time or circumstance or discussion of social goods and
policy choices.
TEMPERING POWER
If arbitrary power is a problem, the legal tempering of power, not just as a vehicle or
instrument but as a channelling, limiting, and constraining agent, has often been suggested
to be a key part of the solution. The point has most often been cast in negative terms, as a
need for a curb, limit, or constraint;23 however there is a more positive dimension as well.
The object is to temper or moderate the exercise of power,24 to avoid its arbitrary
use yet not necessarily to weaken or shackle it. The rule of law is usually recommended
to prevent the ever-present dangers of arbitrariness, but also to allow the positive uses
of power, and social responses to power, to flourish, through provision of ‘enabling
constraints’.25 These can enable positive uses of power, and social responses to power
18
Akhil Bharatiya Upbhokta Congress v State of Madhya Pradesh (2011) 5 SCC 29 [65], quoted
in Endicott 2014, 1.
19
Krygier M. 2002. ‘The grammar of colonial legality: subjects, objects, and the Australian rule
of law’. In Australia Reshaped. 200 Years of Institutional Transformation, ed. G. Brennan and FG
Castles, pp. 220–60. Cambridge, UK: Cambridge Univ. Press.
20
See: Mansfield HC. 1985. ‘Constitutionalism and the rule of law’. Harv. J. Law Public Policy
8:323–26; Selznick P. 1992. The Moral Commonwealth. Oakland: Univ. Calif. Press. p. 437.
21
Raz. 1979.
22
Selznick. 1992. p. 464.
23
Sajó A. 1999. Limiting Government: An Introduction to Constitutionalism. Budapest: Cent.
Eur. Univ. Press.
24
Krygier M. 2017a. ‘Tempering power’. In Bridging Idealism and Realism in Constitutionalism
and Rule of Law, ed. M Adams, EH Ballin, A Meuwese. Cambridge, UK: Cambridge Univ. Press,
pp. 239–54.
25
Holmes S. 1995. Passions and Constraint: On the Theory of Liberal Democracy. Chicago:
Univ. Chicago Press. p.xi.
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which might depend on its salutary exercise, but would never bloom or would quickly wilt
in the face of arbitrariness.
Such concerns are already implicit in Aristotle’s distinctions between ‘true forms’
of government, concerned with ‘the common interest’, and those that ‘regard only the
interest of the rulers’. The latter ‘are all defective and perverted forms. . .for they are
despotic, whereas a state is a community of freemen’.26 A central difference between true
and perverted forms lies in the role of law: ‘The rule of the law, it is argued, is preferable
to that of any individual. On the same principle, even if it be better for certain individu-
als to govern, they should be made only guardians and ministers of the law.’27 Too many
commentators28 think they need to remind us that it is impossible to have the rule of law
without the rule of men. It is unlikely Aristotle would have demurred.29 Rather, these
words might be thought of as seminal reflections on the importance of institutionalizing
the exercise of power, contrasted with unqualified power’s predictable perversions, cen-
tral among them arbitrariness and what has over millennia been condemned as tyranny.
Such institutionalization is meant to help generate, Aristotle and many contemporaries
and successors argued, positive political virtues such as ‘moderation, the golden mean,
mixed government, and temperance’30 and is contrasted with unqualified power’s
predictable perversions, central among them arbitrariness and what over millennia has
been condemned as ‘tyranny’. These themes recur through the centuries.
Thus Montesquieu31 put at the centre of The Spirit of the Laws the distinction between
‘moderate’ forms of government, which he applauds, and ‘immoderate’ forms, which he
loathes. Thus, although both the monarch and despot rule alone, the former does so ‘by
fixed and established laws’, whereas the latter, who governs ‘without law and without
rule, draws everything along by his will and his caprices’.32 Whoever wielded power,
Montesquieu’s overriding question was whether they did so moderately or not. One
of the keys to moderation was the rule of law, but moderation was not, he insisted, an
easy task. Indeed, he notes that, despite the horrors of despotism and the attractions
of moderation, the world has seen many more despotic governments than well-ordered
moderate ones. Craiutu33 notes that, ‘Montesquieu was favourably disposed toward
moderate monarchy á l’anglaise, because in this regime laws reign rather than the will
of individuals (in the Aristotelian sense) and the authority of the sovereign is effectively
limited by intermediary powers and fundamental laws.’ Indeed he famously and wrongly
attributed a tripartite institutional separation of powers to the English, thus influencing
the Americans to institutionalize it. But he did not get everything wrong; rule of law
26
Aristotle. 1988. The Politics. Cambridge, UK: Cambridge Univ. Press. pp. 19–22.
27
Ibid., pp. 18–21.
28
Loughlin M. 2010. Foundations of Public Law. Oxford: Oxford Univ. Press. p. 312.
29
Frank J. 2005. A Democracy of Distinction. Aristotle and the Work of Politics. Chicago: Univ.
Chicago Press. Ch. 4.
30
Aurelian Craiutu, 2012, p. 20.
31
Montesquieu C-L de Secondat, Baron de La Brède et de. 1992. The Spirit of the Laws,
transl./ed. AM Cohler, BC Miller, HS Stone. Cambridge, UK: Cambridge Univ. Press.
32
Ibid., p. 10.
33
Craiutu A. 2012. A Virtue for Courageous Minds. Moderation in French Political Thought,
1748–1830. Princeton, NJ: Princeton Univ. Press. p. 39.
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traditions have been extraordinarily significant in England, if not, as Dicey34 fantasized,

there alone.
Of course, such developments can easily be bowdlerized, as could be seen on the 800th
anniversary of Magna Carta,35 which has sanctified this at-the-time ineffective, interest-
driven deal between king, church, and barons. And yet, although it might not have been a
general position among the barons who negotiated the particular deal in the charter, many
of its chapters exemplified a general principle that was already part of arguments found
in European and English legal traditions36 and continued to be a matter of argument and
institutional experimentation.
Magna Carta, the ‘ancient constitution’,37 and ‘an empire of laws, and not of men’38
were central to the English seventeenth-century apotheosis of the rule of law, and
that in turn is central to Reid’s account of the rule of law tradition in England as the
antinomy repeated over centuries between rule of law and arbitrary power. As he writes
of seventeenth-century demands:
As ‘arbitrary’ was the opposite of ‘liberty,’ and the opposite of ‘liberty’ was also ‘unlimited
power’ or ‘tyranny,’ it followed that another antonym of ‘arbitrary was ‘law’ or ‘rule of law.’
Any check on unlimited power moved government away from arbitrariness and closer to con-
stitutional liberty, and English experience had uncovered no other check than the rule of law.39
While the same century saw powerful defences of absolutism such as Hobbes’ Leviathan
and Filmer’s Patriarcha, not to mention the last eloquent but unfortunate defences of
Charles I, ultimately they lost.
Among those on the winning side was John Locke,40 with his condemnation of:
Absolute Arbitrary Power, or Governing without settled standing Laws, [which] can neither of
them consist with the ends of Society and Government, which Men would not quit the freedom
of the state of Nature for, and tie themselves up under, were it not to preserve their Lives,
Liberties and Fortunes; and by Stated Rules of Right and Property to secure their Peace and
Quiet.41
The American colonists, in turn, inherited these traditions, valued them, and mytholo-
gized them. They felt betrayed by their British rulers for very British reasons; the
34
Dicey AV. 1982 (1885). Introduction to the Study of the Law of the Constitution. Indianapolis:
LibertyClassics. Reprint 8th ed. 1915.
35
Krygier M. 2016. Magna Carta and the rule of law tradition. In Proceedings of a Symposium
Held by the Department of the Senate and the Rule of Law Institute of Australia to Commemorate
the 800th Anniversary of the Sealing of Magna Carta, ed. P Waring, pp. 11–29. Pap. Parliam. 65.
Canberra, Aust.: Parliam. Aust.
36
Berman H. 1983. Law and Revolution. The Formation of the Western Legal Tradition.
Cambridge, MA: Harvard Univ. Press.
37
Pocock JGA. 1987. The Ancient Constitution and the Feudal Law: A Reissue with a
Retrospect. Cambridge, UK: Cambridge Univ. Press.
38
Harrington J. 1771. The Oceana and Other Works of James Harrington, with an Account of
His Life by John Toland. London: Becket & Cadell. http://oll.libertyfund.org/titles/916. p. 10.
39
Reid. 1977.
40
Locke J. 1960. Two Treatises of Government. New York: Mentor. Art 137, p. 305.
41
Ibid. Art 93, p. 372.
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Americans insisted that no government was above the law, but the English had moved
beyond them to regard the lawmaker as legally sovereign, outstripping though (and
perhaps thus) losing its about-to-be-former colony. The Americans still defended, and in
their written constitution made an institutional innovation to resurrect and strengthen,
an older understanding of law and the rule of law.42
These have not been the only themes and streams in Western traditions of thought.
They have often been contested and denied, but they allowed a rich critical language to be
developed by which to condemn arbitrary exercise of power. Such language, and the ideals
it recommends, have not always or everywhere been available. A tradition in which the rule
of law has been an animating value shared among initiates, lay people, and institutions is
a good one to have but it is not universal, rather it is quite rare.43 Distinctive and strong
rule of law traditions are not natural facts. In the Russian imperial state tradition, for
example, law was not a central cultural symbol, and to the extent that it counted, it did
so as an arm of central Tsarist power,44 over which there stood no mortal superior. The
notion that power should be framed and restrained by law was for long periods unknown,
then heretical, and then late and weak in developing. Here law was viewed primarily as
properly a servile branch of political, administrative, and even theocratic power. This has
not altogether changed in Russia.
Such views are not ancient history. Thus, two recent and exemplary works of socio-
legal scholarship45 have shown, of Myanmar and Sudan respectively, the deliberate and
systematic use of law to serve ends contradictory to those of the rule of law. At the time
of writing, an interesting experiment to change these realities, often cast explicitly under
the rubric of the rule of law (both in English and Burmese),46 has begun in Myanmar. It
is too soon to predict its fate. In yet other polities, e.g., contemporary Poland, Hungary,
and South Africa, rule of law values and practices exist and have been to some extent
institutionalized, but they appear thinly so, and threatened (on Hungary, see Bozóki;47
on South Africa, see Issacharoff;48 on Poland, see Sadurski).49 Even where such values
and practices are long-embedded, they can come under huge pressures in times of real or
purported crisis, such as the War on Terror50 or the contemporary treatment of refugees
in many parts of the world.
42
Reid. 2004. p. 305.
43
Poggi G. 2014. Varieties of Political Experience: Power Phenomena in Modern Society. ECPR
Essays. Colchester: ECPR Press. p. 48.
44
Pipes R. 1977. Russia under the Old Regime. Harmondsworth, UK: Peregrine.
45
See: Cheesman N. 2015a. Opposing the Rule of Law. How Myanmar’s Courts Make Law and
Order. Cambridge, UK: Cambridge Univ. Press; Massoud M. 2013. Law’s Fragile State: Colonial,
Authoritarian and Humanitarian Legacies in Sudan. Cambridge, UK: Cambridge Univ. Press.
46
Cheesman N. 2015b. ‘The signifier of desire’. Soc. Res. 82(2):267–90.
47
Bozóki A. 2012. ‘The crisis of democracy in Hungary 2012’. Deliberately Considered, Feb. 3.
http://www.deliberatelyconsidered.com/2012/02/the-crisis-of-democracy-in-hungary-2012/.
48
Issacharoff S. 2013. ‘The democratic risk to democratic constitutions’. Const. Court Rev.
5:1–31.
49
Sadurski W. 2016. ‘What makes Kaczyński tick?’ I-CONnect Blog Int. J. Const. Law, Jan. 14.
http://www.iconnectblog.com/2016/01/what-makes-kaczynski-tick.
50
Holmes S. 1995. Passions and Constraint: On the Theory of Liberal Democracy. Chicago:
Univ. Chicago Press.
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CONTEMPORARY RULE OF LAW DISCOURSES
Arbitrary power is as rampant in many parts of the world as it ever was, even though the
world is full of law and, as never before, of rule of law missionaries. Often, they travel
to places where fierce wars are ongoing or just over; where state structures are fragile;
where all sorts of religious, ethnic, and cultural cleavages make everyday life a Hobbesian
landscape, ‘solitary, poor, nasty, brutish, and short’;51 and where the ‘facts on the ground’
have no connection with the imported legal bric-a-brac. These are indeed ‘hard facts’52
the existence of which means the job is never easy, and success in limiting possibilities
of arbitrary power is likely to be elusive. But there are also ways in which we think about
them (or often do not) that do not make them easier.
ENDS AND MEANS
It is common for the question ‘what is the rule of law?’ to be answered with a list of
purported institutional elements, as though they might serve as a universally relevant
blueprint for institutional design. However, that is the wrong way to begin. The rule of
law is a normative notion, so one needs to start with the point of the exercise before one
can identify what achievement of that point might require. It is also the wrong way to go
on, because the value(s) that animate concern with the rule of law might in principle be
pursued and institutionalized in a variety of ways. Specifying the ultimate values that the
rule of law is asked to secure is not yet to describe how these values are to be achieved.
And perhaps the latter specification can never be accomplished with any combination of
generality and precision.
In different societies with different histories, traditions, circumstances, and problems,
these values have been secured in different ways. There are also many ways, and incentives,
to fail. Starting with generally specified commitments e.g., hostility to arbitrary power,
one can seek to elaborate more specific conditions and concrete principles, e.g., the need
to generate power to balance power, or to ensure not all power is in the same hands.
From these in turn one can seek to develop specific practical and institutional recom-
mendations, in particular circumstances, with particular ways and means derived from
and adapted to those circumstances. These intermediate principles can help in appraising
whatever normative and institutional setups one encounters and suggest modifications
or alternatives to them.
On the one hand, ideals of the rule of law have been better served in some nations and
by some institutions than others. One need not conclude from institutional variety that
new contexts are simply ‘sui generis’53 (as all contexts are in part but not completely).
Institutional possibilities are not infinite, institutions have consequences, different institu-
tions have different consequences, learning can and does occur, and you have to start
51
Hobbes T. 1960. Leviathan. Oxford: Basil Blackwell. p. 82.
52
Di Palma. 1990. To Craft Democracies. An Essay on Democratic Transitions. Oakland: Univ.
Calif. Press, Ch. 1.
53
Teitel R. 2000. Transitional Justice. New York: Oxford Univ. Press.
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somewhere. So it would be absurd to ignore what Selznick,54 following Dewey, called the
‘funded experience’ of generations, among them a number of truisms that have proved
valuable again and again. One of these might be, as Montesquieu and Niebuhr55 insisted,
that ‘power must be challenged by power’. One is, therefore, often warranted in starting
with presumption in favour of institutional models that have worked elsewhere.
On the other hand, one should be wary of too swiftly converting general presumptions
into prescriptions, particularly prescriptions that are highly specific, let alone that hold
out particular institutions as universal models to be emulated. Even if it makes sense
to think of the rule of law as any sort of technology at all, it has to be understood as a
distinctive kind of technology: an ‘interaction technology’, not a production technology,
to borrow a distinction from Stephen Holmes.56 The success of interaction technology
depends crucially on how it engages with the specific sorts of interactions to which it is
applied. As the patterns and character of social interactions vary hugely with time, place,
and circumstance, how these might be affected is not something that can be understood
a priori.
Pursuit of the rule of law requires reflection on how some generally valuable goods
might be achieved in particular contexts. Problems and predicaments will vary, and so too
will the best ways to meet them. Wherever you are, the rule of law should be approached
with a combination of its aim(s) in mind, more specific principles derivable from those
grounding values, and acquaintance with various attempts to secure and institutional-
ize such ends, together with a great deal of reflected-upon local knowledge. It is more
common, however, to cut to what is imagined to be the chase, often without much idea
of any particular terrain (other than one’s own), or of what fresh obstacles (and, for that
matter, opportunities) might lie in wait.
THIN AND THICK
On the view developed here, the ideal of the rule of law is concerned with the exercise of
power. Distinctions have to be made, and matters of scale, character, and consequence
matter, but the bottom line is that wherever power with significant public consequence is
in play, it is better that it be tempered than not. The problem is perennial, the examples
of its tragic outcomes are close to infinite, and those examples are not drying up. There
are certainly other things one might worry about, such as social inequalities, or public
health, or education, or the predicament of refugees around the world. None of these is a
small problem, but arbitrary power is not trivial either. We do better when there are some
regular and reliable ways to diminish it.
In the perspective of contemporary discussions, however, this focus might seem to
attribute either too much or too little to the rule of law: too much if you are committed
to what is called a thin, formal, institution-focused conception of the rule of law, and
54
Selznick P. 1969. Law, Society, and Industrial Justice. New York: Russell Sage Found. p. 9.
55
Niebuhr R. 1932. Moral Man and Immoral Society. New York: Charles Scribner’s Sons
North DC; Wallis JJ, Weingast BR. 2009. Violence and Social Orders: A Conceptual Framework for
Interpreting Recorded Human History. Cambridge, UK: Cambridge Univ. Press. p. xv.
56
Personal communication.
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too little if one’s preference is for a thick, substantive, or material conception of it.
Thin accounts identify the rule of law with a particular set of institutions, rules, and/or
practices but exclude valued outcomes from the definition. Their concept of the rule of
law is morally unencumbered, even though most of them appear to think it is by and large
a good thing. Thick accounts are morally more ambitious and include substantive out-
comes, from a larger vision of a good society and polity, as part of the conception itself.
Thin and thick, formal and substantive, conceptions compete in countless discussions
of the rule of law among legal philosophers,57 comparative lawyers,58 and rule of law
promoters.59 Positivist legal philosophers and legal comparativists tend to favour thin
conceptions: morally noncommittal, easier to identify, and able to travel further because
they carry less baggage. Many governments, too, particularly authoritarian ones, prefer
to be assessed against thin formal criteria which are easier to satisfy than thick, morally
demanding perspectives. Today international businesspeople, unwilling to wade into
controversial questions about democracy or human rights in, say, Singapore or China may
often prefer a formal, thin, conception too.
There are difficulties at both ends of this spectrum – thin institutions versus chubby
values – and indeed with framing the issues along such a spectrum at all. On the one hand,
thin accounts carry more weight than they admit. Typically, they list features of legal
institutions – official, state institutions – that are thought to be the primary vehicles of
what we take to be the rule of law, in First World countries thought to have it. What then
about the now notorious problems of ‘isomorphic mimicry . . . adopting the camouflage
of organizational forms that are successful elsewhere to hide their actual dysfunction’?60
Institutions and rules are shipped or copied, but the outcomes expected do not follow.
Does one then have the rule of law because the institutions appear to be in place, or lack
it because nothing works as it should?
More generally given the focus of thin accounts on state institutions, what of the exer-
cise of power by non-State actors and forces? Social networks, prominent or dominant
families, clans, religious leaders, organized crime bosses, or assorted fellowships of ‘dirty
togetherness’? If, whatever the law says, they are free to act arbitrarily or capriciously,
does it make sense to insist that nevertheless the rule of law exists because purported
institutional underpinnings of a legal order are present, or standard practices have been
mimicked?
One problem with the activities of rule of law promoters, as an anonymous colleague of
Carothers explained, is that ‘we know how to do a lot of things, but deep down we don’t
really know what we’re doing’.61 We simply do not know how institutions, even familiar
57
Raz. 1979.
58
Peerenboom R. 2004. ‘Varieties of rule of law: an introduction and provisional conclusion’.
In Asian Discourse of Rule of Law, ed. R Peerenboom. London: Routledge Curzon. pp. 1–55.
59
Kavanagh C, Jones B. 2011. ‘Shaky Foundations: An Assessment of the UN’s Rule of Law
Support Agenda’. New York: N.Y. Univ. Cent. Int. Coop.
60
Pritchett L, M Woolcock, M Andrews. 2010. ‘Capability traps? The mechanisms of persis-
tent implementation failure’. CGD Work. Pap. 234, Cent. Glob. Dev., Washington, DC. p. 2. http://
www.cgdev.org/content/publications/detail/1424651.
61
Carothers T. 2006. ‘The problem of knowledge’. In Promoting the Rule of Law Abroad. In
Search of Knowledge, ed. T Carothers, Washington, DC: Carnegie Endow. Int. Peace. p 15.
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institutions that we associate with the rule of law at home, will perform in the sorts of
settings where we promote the rule of law abroad. For that matter, we do not know much
about why such institutions perform as they do at home either.
Should we say we have achieved the rule of law when we have built courts, installed
computers, and trained judges, but no one visits them and, more important, they have
little effect on what goes on in the wider society?62 Or what should we say when the efforts
of so-called rule of law or human rights-focused law reformers to train judges and build
courthouses in Sudan, to enlist and reform the law in the service of the poor, turn out
not to do much of that but rather legitimize the power of a dictatorship that is ‘already
accustomed to using any available legal tools and resources for political gain’?63 Have they
installed the rule of law, or have they simply issued their best guess about what might serve
rule of law values, which turns out not to? Or has what they have done anything to do
with the rule of law at all? Again, Kleinfeld observes that certain efforts, which may well
satisfy thin accounts as rule of law measures, might turn out to harm precisely what they
are supposed to help. Thus, she points out:
Most pernicious, depending on how they are implemented, institutional reforms carried out
under the banner of rule-of-law reform can actually undermine rule-of-law ends. For instance,
in Romania, businessmen have pleaded for an end to legal reform: They can live with bad laws,
but the constant ‘improvement’ of key property laws by various bilateral and multilateral aid
agencies creates an unpredictable legal environment.
An end good of the rule of law – a stable, predictable legal system – has been undermined by
the so-called reform process.64
So thin accounts are at once too thin, because they bear only a contingent relationship
to what we would want and recognize as the rule of law, as well as too thick, because
they are full of parochial assumptions about the workings and value of legal institutions,
assumptions we have no reason to imagine will flow as far as the institutions and rules
that supposedly carry them.
On the other hand, thick accounts too easily fall foul of Raz’s caution that to equate
the rule of law with whatever we take to be ‘the good’ robs the concept of any distinctive
significance. Loading wide-ranging, substantive ideals atop the concept threatens to melt
it into everything else we might like. As Raz puts it:
if the rule of law is the rule of good law then to explain its nature is to propound a complete
social philosophy. But if so the term lacks any useful function. We have no need to be converted
to the rule of law just to discover that to believe in it is to believe that good should triumph.65
The interpretation of the rule of law recommended here does not choose between
thick and thin substantive achievement at large, but looks somewhere else. Though its
62
Kilcullen DJ. 2011. ‘Deiokes and the Taliban: local governance, bottom-up state formation
and the rule of law in counter-insurgency’. In The Rule of Law in Afghanistan, ed. W Mason,
Cambridge, UK: Cambridge Univ. Press. pp. 35–50.
63
Massoud. 2013. p. 206.
64
Kleinfeld R. 2006. ‘Competing definitions of the rule of law’. In Promoting the Rule of Law
Abroad: In Search of Knowledge, (n 61) p. 53.
65
Raz. 1979. pp. 210–29.
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implications are not small it is modest. It has to do not with social values at large but
rather with a specific issue: how power is exercised.
THE ENDS OF THE RULE OF LAW
The rule of law would not have received such applause if no one thought it was good for
anything. In truth, all sorts of goods are today claimed to flow from it, e.g., economic
development, human rights, and democracy. Indeed, these claims are the lifeblood of the
international rule of law promotion industry; if leaders of that industry did not think
these results flowed from the rule of law, they would not be interested in it. But partisans
of the traditions recalled above still would be. Why? On the view developed here, the
problem to which the rule of law is offered as part solution is that of arbitrary power. It
makes sense, though it might not always be true, to think of law as a solution to problems
that power disparities raise, because law is specifically and characteristically, at its core,
a vehicle for the exercise of power. In certain configurations and circumstances, or so its
proponents hope, the rule of law can also be a potent means, though never the only means,
by which power might be channelled, directed, constrained, or tempered.
If arbitrariness is successfully minimized, one might argue, as Weber66 did, that ‘sober
bourgeois capitalism’ is likelier to get off the ground, but on my interpretation of the
tradition, and of Weber, that is a sociological argument about what reduction of arbitrari-
ness in the exercise of power might facilitate. It is not itself a quality of the rule of law, but
rather a consequence of it. Equally, democracy, the full panoply of human rights (apart
from some of those rights, like the right to a fair trial, which are parts of the rule of law),
and other things it is now fashionable to attribute to the rule of law are not really part of
it but among effects attributed to it. What difference might this make?
On this account, the value of the rule of law is immanent and generic, that is, hostility
to arbitrary power is intrinsic to the ideal of the rule of law, and it is relevant across the
board. Hostility to arbitrary power might be grounded in some account of human persons,
their interests, and needs; thus, hostility to arbitrariness might stem from a commitment
to liberty,67 moral equality,68 or dignity69 appropriate to that understanding of humanity
and personhood. It might have other grounds as well or instead, for example, suspicion
of human weakness, our fallen nature, or our tendency towards hubris. Whatever the
grounds, those who connect the rule of law with hostility to arbitrariness are less likely
than contemporary rule of law promoters to have a specific domain of life or purpose
in mind. Non-arbitrary power is intimately tied to the concept of the rule of law in ways
that other goods, for instance, economic development or even democracy, are simply not,
although they might flow from it. The former is not an external but an immanent value
of the rule of law, its telos; the latter are external benefits said to flow from it. However,
among its contemporary promoters, the rule of law is typically applauded to the extent
66
Weber M. 1968. Economy and Society, Vol. 2, ed. G Roth, C Wittich. New York: Bedminster.
67
Pettit. 1997.
68
See: Gowder. 2016; Sempill. 2016.
69
See: Waldron J. 2011a; Waldron J. 2011b.
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that it believed to support such external ends. This narrows the reasons to support it and
renders it more fragile.
Economists’ new passion for the rule of law as supporting economic development is
a good example. Is it a good thing? It depends. Economic development is a significant,
though not unqualified, good, but even if we were more confident that neoliberal legal
and market reforms were guaranteed to produce the economic outcomes intended, the
selectiveness of their promoters’ interests should worry anyone with a traditional commit-
ment to the rule of law. Thus, from a World Bank expert on development, we learn that
from the experience of Pinochet’s Chile:
A broad consensus has emerged on the centrality of the rule of law in the second stage of
reform. . . The prevailing development paradigm rooted in the neo-liberal precepts of the
Washington Consensus has elevated the rule of law to the altar of the institutional reforms
required to sustain market reforms. . . . While the swift and decisive decision-making needed to
implement first generation market reforms often requires a pliant judiciary, second generation
economic reforms aimed at anchoring the institutional foundations of the market economy
require precisely the opposite. Market-oriented economic reforms are not sustainable without
restoring and strengthening the credibility of the rule of law.70
What if the author, or the World Bank, or (in the case of the quote) a post-Pinochet
Government were to change their view and decide that not merely ‘first generation market
reforms’ require a ‘pliant judiciary’, but second-generation reforms also? Or what if the
rule of law had once been enthusiastically promoted to generate liberal democracy but
then, like the present (mid-2018) Hungarian and Polish Governments, we are over that?
The logic of the argument, and some contemporary experience in those countries, appears
to be that the rule of law would be out the window. And even when it has got in the
door, it may skip a few rooms in the house, particularly those less opulently appointed.
Thus, economic reformers are particularly interested in encouraging security of property
rights, investment, and trade. That explains what institutional reforms they advocate. It
also explains where they advocate them. That is rarely everywhere and nor is it random.
Typically it is:
strongly oriented toward the perceived interests of the dominant sectors . . . For societies that
are profoundly unequal, these trends may very well reinforce the exclusion of many from the rule
of law, while further exaggerating the advantages that the privileged enjoy by means of laws and
courts enhanced in their direct interest.71
To repeat, the values the rule of law serves are not absolute but they are general, and
they are truly valuable. If they are to be favoured merely insofar as they are thought
instrumental to the achievement of some other particular goal, such as economic develop-
ment or even democracy, then other ways arbitrary power can damage lives threaten to
drop out of consideration.
70
Santiso C. 2003. ‘The elusive quest for the rule of law: promoting judicial reform in Latin
America’. Braz. J. Polit. Econ. 23(3):113, 119.
71
O’Donnell G. 1999. ‘Polyarchy and the (unrule) of law in Latin America’. In The (Un)rule of
Law & the Underprivileged in Latin America, ed. JE Mendez, G O’Donnell and PS Pinheiro. Notre
Dame, IN: Univ. Notre Dame Press. pp. 319–20.
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This is a particularly serious issue because our knowledge in these areas is notoriously
uncertain. There are intuitively plausible reasons, and some evidence, to support the belief
that lessening the possibility of arbitrary power might help achieve those further good
things. However, the evidence is equivocal72 and if it were shown in a particular society
that although power was not exercised arbitrarily the economy had failed, for instance,
this would not be reason to deny that the reduction of arbitrariness in the exercise of
power was still a good thing.
After a wide-ranging review of literature on law and economic development that had
confessedly ‘taken a highly instrumental view of the rule of law, stressing its utility for
growth in particular,’ Haggard et al. caution:
But our final and most important point is that the rule of law is of great importance as a value
in its own right and as a contributor to other values, such as human freedom. Yet precisely for
that reason – because we believe in the rule of law – it is all the more important that those who
would offer development assistance make sure, first, to do no harm.73
This warning has not always been heeded. Yet although tempering power is not always
more important than other goals, it has a specific focus and a general importance not
reducible to other things, but often not separately considered. There are many ways to
exercise power and doing so in a way that is not arbitrary is salutary, even independently
of the particular substantive ends for which power is exercised (although arbitrary power
arguably lends itself to some of the worst ends more easily than its opposite).74
STATES AND SOCIETIES
According to Hadfield and Weingast:
Despite its centrality to many literatures, the concept of the rule of law is woefully under
theorized. . .Indeed, the great majority of academic and policy work takes the concept for
granted, generally equating it with the institutions and practices in those (relatively few) parts
of the world where the rule of law has been largely achieved.75
There are two points here: undertheorization and institutionalization. Earlier parts of
this chapter confirm the first, but the second is also valid. Just to render explicit what the
passage assumes, typically those are the ‘institutions and practices’ of the formal, official,
72
See: Bugarič B. 2014. ‘Law and development in Central and Eastern Europe: the neo-liberal
development state and its problems’. In Law and Development in Middle-Income Countries: Avoiding
the Middle-Income Trap, eds R Peerenboom and T Ginsburg, Cambridge, UK: Cambridge Univ.
Press. pp. 131–55; Haggard S and Tiede L. 2010. ‘The rule of law and economic growth: Where are
we?’ World Dev. 39(5):673–85; Haggard S, MacIntyre A and Tiede L. 2008. ‘The rule of law and
economic development’. An. Rev. Polit. Sci. 11:205–34.
73
Haggard, MacIntyre and Tiede, ibid., p. 22.
74
See: Fuller. 1969; Rundle K. 2009. ‘The impossibility of an exterminatory legality: law and
the Holocaust’. Univ. Tor. Law J. 59(1):65–125.
75
Hadfield GK and Weingast BR. 2014. ‘Microfoundations of the rule of law’. An. Rev. Polit.
Sci. 17:21–42.
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state legal order. Lawyers typically start and stop there, so too do legal philosophers,
economists, and political scientists, and most often rule of law promoters as well. This
equation is virtually universal in discussions of the rule of law.76 If you define the rule of
law, you enumerate features of central legal institutions; if you want to assess its strength
or weakness, you look at features of precisely the same institutions; and if you aim to
build it, that means building just those institutions or, because the originals are not
transferrable, some imitation or simulation of them.
Here are two examples, one from the field, the other from the study. First, as Jensen and
Heller and also Santiso point out:
In legal circles in developing countries and in international development circles, rule of law has
become almost synonymous with legal and judicial reform. Basic questions about what legal
systems across diverse countries actually do, why they do it, and to what effect are either inad-
equately explored or totally ignored. In developed and developing countries, larger questions
about the relationship of the rule of law to human rights, democracy, civil society, economic
development, and governance often are reduced to arid doctrinarism in the legal fraternity. And
in the practice of the international donor community, the rule of law is reduced to sectors of
support, the most prominent of which is the judicial sector.77
It is not quite the case that people have no other ends than serving the means chosen,
but rather, as Kleinfeld observes:
When the rule of law is implicitly defined by its institutions, rather than its ends, the latter tend
to be assumed. Rather than considering the desired goals we are trying to achieve through the
rule of law, and then determining what institutional, political, and cultural changes best achieve
these ends, practitioners are tempted to move directly toward building institutions that look like
those reformers know.78
In other words, the before-mentioned ‘isomorphic mimicry’. Little wonder then that
Pritchett et al79 complain that ‘[t]he conflation of form and function . . . has been one of
the most ubiquitous but pernicious mistakes of development policy over the last sixty
years, and is manifest most clearly in widespread implementation failure’.
A second example of institution-fixation is not a product of the difficulties of recent
practice, rather it is a more long-standing, perhaps discipline-inspired, failure of sociological
imagination, common among lawyers and philosophers. One rare, notable exception to the
standard in legal philosophy might prove the rule: Waldron is one of very few legal phi-
losophers who have complained (rightly) about the narrow social and institutional focus of
contemporary philosophical accounts of the rule of law. He makes the important point that:
76
See: Krygier, M. 2011 ‘Four Puzzles about the Rule of Law: Why, What, Where? And Who
Cares?,’ in James E. Fleming, ed., Getting to the Rule of Law, Nomos no.50, New York University
Press, pp. 64–104; Krygier M. 2017b, ‘Legal Pluralism and the Rule of Law’ in Andrew Halpin and
Nicole Roughan, eds., Jurisprudence without Borders, Cambridge University Press, pp. 294–325.;
Rachel Kleinfeld, 2006.
77
See: Jensen EG and Heller TC, eds. 2003. Beyond Common Knowledge. Empirical Approaches
to the Rule of Law. Palo Alto, CA: Stanford Univ. Press. pp. 1–2; Santiso. 2003. pp. 113–34.
78
See: Kleinfeld. 2006. Kleinfeld R. 2012. Advancing the Rule of Law Abroad. Next Generation
Reform. Washington, DC: Carnegie Endow. Int. Peace.
79
Pritchett, Woolcock and Andrews. 2010.
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[g]etting to the Rule of Law does not just mean paying lip service to it in the ordinary security
of a prosperous modern democracy: it means extending it into societies that are not necessarily
familiar with the ideal; and in those societies, that are familiar with it, it means extending it into
these darker corners of governance as well.80
He also observes that:
[w]hen I pay attention to the calls that are made for the Rule of Law around the world, I am
struck by the fact that the features that people call attention to are not necessarily the features
that legal philosophers have emphasized in their academic conceptions of this ideal . . . this
formal conception is not what ordinary people have in the forefront of their minds when they
clamour for the extension of the Rule of Law into settings or modes of governance where it has
not been present before.81
Waldron purports to capture such features, what ‘ordinary people are urging’, by supple-
menting Fuller-and-Raz-style formal features of legal rules with elements of legal procedure
and the institutions like courts that embody them. He commends a list of ten such features,
mainly to do with the fair, impartial, open, and appealable conduct of legal hearings before
‘a legally trained judicial officer’ and with a ‘right to representation by counsel’. However
what they have in common with the accounts Waldron criticizes is that they are all focused
solely on the usual official institutional suspects. The big shift in institutional focus between
Fuller and Waldron is from official legislatures to official courts, particularly criminal courts
of kinds well recognized in the West. This is not, in comparative or sociological perspective, a
huge distance to travel. Such procedures barely move from the formalities they supplement.
What of keeping faith with ‘what ordinary people are urging’? Again, this is welcome
but it is unclear that Waldron’s supplement to traditional understandings goes far enough.
The vulnerabilities, aspirations, and values that lead people to clamour for the rule of law
are not primarily to be judged by what it does for lawyers nor legal philosophers. Indeed,
elsewhere he says as much: ‘this ideal is not the property of the analytic philosophers and
it is certainly not our job to go around reproaching laymen for not using the term in the
way that (for example) Joseph Raz uses it’.82 If the rule of law is a good, it is a social good,
and it is challenged, inter alia, by social bads.
Not all of these bads have much to do with what goes on before judicial tribunals with
refined adjudicative procedures. If Afghan citizens, or Syrians, for example, lament the
absence of the rule of law in their societies and lives, is it obvious that they are talking only
about receiving unclear legal messages from the parliament (Raz), or having a hard day in
court (Waldron)? Perhaps the irrelevance of the law or any other institutional constraints,
the capriciousness of untempered power from warlords, terrorists, and others in their
lives, might matter more to them than the character of any laws they may encounter.
In pursuing Waldron’s agenda, then, we should be open to expanding the social and
institutional range of our ‘conceptual geography’, to use an apt phrase from another
context.83 We need at least to consider whether the values that animate concern with the
80
See: Waldron. 2011a; Waldron J. 2011b. pp. 3–4.
81
Ibid., p. 4.
82
Waldron J. 2012. The Rule of Law and the Measure of Property. Hamlyn Lectures,
Cambridge, UK: Cambridge Univ. Press. Kindle ed, p. 16.
83
Judt T. 1990. The rediscovery of Central Europe. Daedalus 119(1): p. 25.
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rule of law might need and draw support from other than Western standard-issue sources.
Though it rarely seems to be taken up by philosophers, this point is far from new; Desai
and Woolcock84 claim it has been a constitutive lament of the rule of law promotion
field for around 40 years. One question, which they tackle, is why members of the field
nevertheless continue to do as they have done for so long.85
Another question is why such criticisms seem to have occurred to rule of law promot-
ers only after repeated disappointments in the field, whereas attention to the staples
of socio-legal research over a century might have shortened the learning process. The
literature of ‘legal pluralism’86 that suggests societies abound with normatively significant
nodes and networks in addition to the state is, after all, not young. Even if we leave
aside Aristotle’s observations that ‘customary laws have more weight, and relate to more
important matters, than written laws’,87 and more extensively and deeply Montesquieu’s
enumerations of the extra-legal sources of moderation and immoderation, we still have
Ehrlich,88 Petrażycki,89 Malinowski,90 and their intellectual descendants, such as Moore91
and Galanter.92 All of the latter stress the range and significance of sources of social
normativity outside states and official laws (where there are states and official laws). The
following are three themes in support of such observations:
Social Causality
No account of law that systematically ignores the interactions, and the variable com-
plexities of interactions, between official law and ‘semiautonomous social fields’93 or
‘indigenous orderings’94 can come to terms with the fundamental questions of ‘social
causality’95 that lie at the base of any attempt to use law to affect life, and of any attempt to
assess how and how much it does so. To take these issues seriously requires a reassessment
of relations between the centre and periphery as well as between official law and those
to whom it relates; indeed this may require a reassessment of what is centre and what is
84
Desai D. and Woolcock M. 2015. Experimental justice reform: lessons from the World Bank
and beyond. An Rev. Law Soc. Sci. 11: p. 157.
85
See: ibid. pp. 155–7; Tamanaha B. 2011. ‘The primacy of society and the failures of law and
development’. Cornell Int. Law J. 44:209–47.
86
Tamanaha B, Sage C, Woolcock M, eds. 2012. Legal Pluralism and Development. Cambridge,
UK: Cambridge Univ. Press.
87
Aristotle. 1988. pp. 5–6.
88
Ehrlich E. 2002 (1913). Fundamental Principles of the Sociology of Law, transl. Walter
L. Moll. Piscataway, NJ: Transaction.
89
Petrażycki L. 1968 [1955]. Law and Morality, transl. HW Babb. Cambridge, MA: Harvard
Univ. Press.
90
Malinowski B. 1926. Crime and Custom in Savage Society. London: Routledge & Kegan
Paul.
91
Moore SF. 1978. Law as Process: An Anthropological Approach. London: Routledge &
Kegan Paul.
92
Galanter M. 1981. ‘Justice in many rooms: courts, private ordering, and indigenous law’.
J. Leg. Plur. 9:1–47.
93
Moore. 1978. p. l.
94
Galanter. 1981. p. 7.
95
Moore. 1978. p. 6.
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periphery. As well as noting that many law-affected interactions involve ‘bargaining in

the shadow of the law’,96 we need to be alert to the many and varied ways law operates ‘in
the shadow of indigenous orderings’.97 Because the ends of the rule of law depend on the
causal efficacy of the means chosen, and that only emerges from these interactions, some
understanding of what that involves might be useful.
Sources of Threat
If society is full of networks, nodes, fields, and orderings that have power over people in
and around them, and if arbitrary exercise of power is to be avoided, the conventional
assumption, that threats of arbitrariness with which the rule of law is concerned are a
state monopoly, needs to be examined in ways not obviously found in either traditional or
contemporary writings. The sources, scale, and significance of arbitrary power are matters
of empirical fact and social theory, answers to which will vary in different societies and
at different times. But then why has there been such an exclusive concentration on threats
coming from governments, by writers on the rule of law?
If there are reasons to be concerned about arbitrary exercise of power, then one would
think these reasons should apply wherever it is to be found significant enough to make
them worrisome. Of course, if the power is inconsequential, or judged a private matter,
or for some reason outweighed by benefits of leaving it unregulated, then perhaps those
reasons for concern would be overridden. However, surely that depends upon evidence
relating to the magnitude of the power involved, the number of people who might be
affected by it, the significance of the effects, or the amount of arbitrariness to which
they might be liable. None of this can be assumed to point exclusively in the direction
of states. The arbitrary power to harm individuals can involve corporations within and
without states; non-state entities including terrorist and financial organizations, oligarchs,
Mafiosi, warlords, or tribal elders; and even international ratings agencies. Banks can do
a lot of damage too, and in recent relatively unregulated years and countries, they have.
Nothing in the tradition (except its silence on the issue) explains why we should not have
an interest in tempering significant power with public consequences, whoever or whatever
is exercising it.
Sources of Promise
Conversely, why imagine that the state has a monopoly of effective responses to arbitrary
power? In some times and places, state law will be of great significance in tempering
arbitrary power, in other times and other places, less so. If not there, then given the sig-
nificance of avoiding arbitrary power, we will need to look elsewhere for help. And there
are likely to be many places to look, though these too will vary from society to society,
time to time, source of arbitrariness, and available response. If the sources of the illness to
which the rule of law is supposed to be a cure might come from entities other than states,
96
Mnookin R. and Kornhauser L. 1979. ‘Bargaining in the shadow of the law: the case of
divorce’. Yale Law J. 88:950–97.
97
Galanter. 1981.
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so too might it be with cures themselves, although even that is not self-evident. Non-state
causes might have state cures, and vice versa. Universalizing assumptions about variable
social processes are unhelpful here.
A POSSIBLE FUTURE: A SOCIAL SCIENCE THE DOES NOT

YET EXIST?
The concerns that have led to discussions of the rule of law – what problems it needs to
cope with, what might be helpful in the attempt, and how this might vary – are multiple,
as are the sources we need to draw on to appreciate them. They include social and politi-
cal theory, jurisprudence, history, and several of the social sciences. If there were ever a
subject that could benefit from historical awareness and interdisciplinary mixing, it is the
rule of law. But such ecumenism is not common.
Inmates of disparate rule of law fields do not often mingle. One is unlikely, for example,
to meet many philosophers or historians of political thought at rule of law promoters’
conferences. Rare too is the book on the rule of law that is philosophically adept and
closely familiar with social scientific discussion, the huge rule of law index industry, and
the activities of rule of law promoters (actually, there is one98 and its author rightly claims
it to be distinctive for this very combination). Yet everyone agrees that the rule of law is
supposed to be not just something but a good thing, so it is odd that the thoughts of those
who have reflected deeply on the nature of the good(s) that might be associated with it
are so resolutely ignored by those who want to generate them. Conversely, the rule of law
is a practical ideal; its partisans think it can make some difference in the world. Should
lawyers and philosophers learn some more about how law works in the world, maybe from
socio-legal research? Apparently not – not their field.
Philosophers write about the rule of law but often in a socially or historically unan-
chored manner. Neither does a sociology specifically concerned with wrestling with the
normative and explanatory grounds of the rule of law and their policy implications have
many adherents. Almost 50 years ago, Selznick99 argued that, given its centrality among
legal values, the rule of law ‘must be a chief preoccupation of legal sociology,’ and he
pointed to a good deal of research that spoke to that theme. Although they might have
spoken to it, however, in the sense of bearing on it, most sociologists did not speak of the
rule of law or analyse it particularly closely. The rule of law has not until recently been a
mainstream sociological concern.
In recent years some mainstream social scientists have become interested in what they
understand as the rule of law,100 in part because of internal disciplinary developments
(particularly in institutional economics) and also because the rule of law export industry
98
Gowder. 2016.
99
Selznick P. 1968. ‘The sociology of law’. In The International Encyclopedia of the Social
Sciences, Vol. 9. New York: Macmillan.
100
See: Acemoglu D and Robinson JA. 2012. Why Nations Fail. New York: Crown Bus;
Fukuyama F. 2011. The Origins of Political Order: From Prehuman Times to the French Revolution.
New York: Farrar, Straus & Giroux; Hadfield and Weingast. 2014; Heckman JJ, Nelson RL and
Cabatingan L, eds. 2010. Global Perspectives on the Rule of Law. Abingdon, UK: Routledge; North
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has brought attention to interesting problems for social scientists to explore. However,
social scientists rarely engage closely with philosophical issues of either a conceptual or
normative character. Their conceptual investigations are often perfunctory or focused on
identifying measurable entities rather than exploring contested ambiguities of meaning,
whilst their normative concerns, where allowed, are usually common-sense utilitarian.
They are generally uneasy to say much about values, perhaps because it remains largely
true, as Selznick101 long ago lamented, that to ‘put it bluntly, our keenest minds in the
social sciences didn’t know what to do with an ideal except handle it gingerly and view it
with alarm’.
So, to plagiarize a phrase coined for another purpose by Sołtan,102 we might need to
cultivate ‘a social science that does not quite yet exist’. In the interpretation suggested
here, this would begin with a normative range of questions, among them, what are the
reasons for which people have clamoured for the rule of law, and are they good reasons?
Should we still clamour? This essentially philosophical task would involve examining
existing answers, perhaps revising them, perhaps devising new ones. If persuaded that the
reasons justify the quest, one might then seek to think about how this clamour might be
satisfied.
It would then need to be asked where dangers to these values are likely to come from
and where the effective responses might be found? Many of the key dangers are likely to
be socially and politically generated, many of the major goods that flow from tempering
arbitrary power (or whatever other value is chosen) will be delivered in the wider society,
and many of the major sources of defence against arbitrariness need to be found there too.
This normative quest would likely lead us to undertake observations and theorizations
about things other than law.
We need to understand how law does what it does, and why it does not always do what
we might expect (among other things effectively temper the exercise of power). We need
to understand the workings of law in society and of society in law, and politics as well
because we are dealing with power, values, interests, and incentives.103 That is true for
both the wielder of and the target of arbitrary power. This suggests that, to the extent
such matters are ignored, conventional accounts of the rule of law, the billions of dollars
spent on rule of law promotion, and the anatomical dissection of the essential elements
of the rule of law that focus their energies almost exclusively on central, state, and legal
institutions are misconceived.
State law should not be presumed to be the always-necessary centrepiece of power-
tempering policy to which other measures are supplementary addenda but as one imple-
DC, Wallis JJ and Weingast BR. 2009. Violence and Social Orders: A Conceptual Framework for
Interpreting Recorded Human History. Cambridge, UK: Cambridge Univ. Press.
101
Selznick P. 1973. ‘The dialectic of fact and value: foundations of a humanist social science’.
Bernard Moses Meml. Lect., Univ. Calif., Berkeley, Feb. 21 (manuscript in possession of the
author).
102
Sołtan K. 1999. ‘A social science that does not exist’. In Rediscovering Fuller: Essays
on Implicit Law and Institutional Design, eds WJ Witteveen and W van der Burg, pp. 387–410.
Amsterdam: Amst. Univ. Press. p. 357.
103
Ginsburg T. 2011. ‘In defense of imperialism? The rule of law and the state-building project’
In Getting to the Rule of Law, ed. JE Fleming, NOMOS 50. New York: N.Y. Univ. Press. pp. 224–40.
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ment among several and of unique importance in some respects and circumstances but
dependent for its success on many other things. That in no way diminishes the importance
of the ideal that rule of law traditions uphold nor does it suggest that law is unimportant.
However, it might enable us to see its importance in (variable) perspectives, giving due
weight to other phenomena that might need enlisting to serve such goals. It might also
loosen the hold of a mantra that in its modish ubiquity threatens to obscure the valuable
purposes for which the rule of law was thought important, and instead claims it serves
virtually any purpose one might want to name.
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6. The centrality of predictability to the rule of law
Christopher May
Some four decades ago Roberto Mangabeira Unger suggested, as part of an earlier
discussion of legality, that the rule of law in the ‘broadest sense’ was ‘defined by inter-
related notions of neutrality, uniformity and predictability’.1 In this chapter I am going
to examine the (perhaps) least discussed notion of that trio: predictability; first, as a way
of thinking further about both its appeal as a political norm, but secondly, also as a way
of exploring the rule of law’s most basic character.2 Elsewhere I have concluded that to
adopt a pluralist and inclusive notion of the rule of law, one which reflects its existence as
a common sense of global politics, is essentially to adopt what is frequently referred to in
this volume and more widely as, a ‘thin’ view of the rule of law.3 As will be obvious from
the range of chapters and commentary in this handbook, there is an extensive jurispru-
dential literature exploring how the rule of law might be defined; however, rather than
reporting on these continuing debates, here I will follow Paul Kahn’s suggestion that the:
rule of law is a social practice: it is a way of being in the world. To live under the rule of law
is to maintain a set of beliefs about the self and community, time and space, authority and
representation. It is to understand the actions of others and the possible actions of the self as
expressions of these beliefs. Without these beliefs, the rule of law appears as just another form
of coercive governmental authority.4
This is to say, while there are major jurisprudential debates about the reach and content
of the rule of law, much of the contemporary political debate is more concerned with
its practice. If the rule of law is a (political) common sense then it has a meaning that
resonates well beyond any jurisprudential discussion about its normative content.
If we can understand the various positions on the extent of such normative content as
arrayed on a continuum between two ideal points – a thin reading of the rule of law and
a thick reading,5 then a thin reading of the norm(s) of the rule of law is almost entirely
concerned with due process and legitimate procedure. Some critics have argued that it
then becomes impossible to distinguish between rule of law as a value and rule by law as
a set of practices, leaving Nazi or Apartheid regimes no less well justified on a technical
1
Roberto Mangabeira Unger Law in Modern Society: Towards a Criticism of Social Theory
New York: The Free Press, 1976: 176.
2
This chapter draw on part of the discussion of contract in Christopher May ‘Contract as
normative regulation and its relation to the rule of law’ in: A.C. Cutler and T. Dietz (eds) The
Politics of Private Transnational Governance by Contract London: Routledge, 2017: 39–56, and
aspects of the arguments developed in Christopher May, The Rule of Law: The Common Sense of
Global Politics Cheltenham: Edward Elgar, 2014.
3
May, The Rule of Law: 182
4
Paul W. Kahn, The Cultural Study of the Law: Reconstructing Legal Scholarship Chicago:
University of Chicago Press, 1999: 36.
5
May, The Rule of Law: Ch. 2, and passim.
96
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The centrality of predictability to the rule of law 97
level then liberal democratic legal systems. This question of the political content of rule of
law systems then leads to a process of adding various values and normative content until
some acceptable level is reached. This is, of course, a valid and important line of argu-
ment, however here I am going to move in the other direction. I am going to suggest that
there is at least one definable element of the norm of the rule of law that when identified
as lacking immediately falsifies the claim that the governance system under discussion
should be regarded as exhibiting the rule of law, and that element is predictability.
To this end in this chapter I examine the value of predictability, first through the lens
of economic development and then more widely through the manner in which we govern
ourselves and our expectations about our social, and private, lives. This leads me to
conclude that any system of social governance that is unable to provide a sustained level
of predictability about social action and practice would be unable to substantiate a claim
to be a system where the rule of law obtains, whatever its other merits.
USING CONTRACT TO THINK ABOUT THE RULE OF LAW
That predictability might be crucial to the maintenance and development of economic

relations has been usefully demonstrated by work on behavioural economics. One way of
understanding the political appeal of the rule of law therefore is to link it to an account of
modern capitalism that suggests that capitalism’s normative structures are underpinned
by particular human practices, rather than an abstract ‘rationality’.6 Moreover, while
there may be other aspects of the rule of law that economic actors’ value, this approach
emphasises that the rule of law’s absence has considerable impact on economic actors’
judgment of the character of an economic system they encounter and their predictions
about how others will act towards them when engaged in economic interactions.
George Akerlof and Robert Shiller have drawn some analytical sustenance from J.M.
Keynes’ idea of human behaviour under capitalist modes of market organisation, as well
as synthesising a considerable range of behavioural economics’ research, to argue that
for a capitalist market to function normally it needs to provide: confidence; fairness;
protection against corruption and bad faith; a narrative of organisation; and some form
of money illusion (i.e., a focus on nominal not real values).7 Certainly in other economic
systems (and times) other mechanisms and/or norms may have delivered this support for
economic exchange, but in our contemporary capitalist system, the focus is on the rule of
law. One of the key economic roles of the rule of law, is to deliver the predictability that
capitalist economic relations require, when exchange and bargaining move beyond any
form of instant gratification or resolution, and when economic relations are no longer
structured by either status or through authority but rather become contractual.8 This
predictability underpins our confidence in the market as a mechanism that delivers what
6
Ibid.: 122–32.
7
George A. Akerlof and Robert J. Shiller, Animal Spirits: How Human Psychology Drives
the Economy, and Why It Matters for Global Capitalism (updated paperback edition) Princeton:
Princeton University Press, 2010.
8
Karl N. Llewellyn, ‘What Price Contract? An Essay in Perspective’ Yale Law Journal 40(5)
(March 1931): 704–51; at 717.
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we expect, and here, contract has a relatively unproblematic narrative of fairness as parties
are treated equally and as notionally voluntary contractors.9
One way of establishing the importance of predictability for the development and
maintenance of capitalist economic relations is therefore to focus on contract(ing) as the
central legal mechanism underpinning market relations. Of course, there is considerable
potential for bad faith and corruption in contracts, especially around any asymmetries
in information – what I know but you do not – although such information or knowledge
may have some relevance to your perception of the acceptability of the contract. If the
outcome of understanding the role of contract qua norm (even when not formally legally
initiated) is the establishment of a predictability that underpins economic relations, this
also brings with it a characterisation of those relations which might be regarded as less
self-evident. Thus, one of the central aspects of contract law is consent – consensus in
idem – and that each side of the contracted relationship understands its essential terms in
the same way. Indeed, since the nineteenth century (in common law at least) the absence
of a shared understanding of agreement can be grounds for nullifying the contract.10 This
reveals the centrality of exchange (i.e. the presence of a ‘consideration’ as reformulated in
the Nineteenth century), and what we might term the recognition that on each side of the
contract there is a transfer of something to the other party (labour for wages; property
for payment).
Returning to predictability, this suggests that contracts can be challenged when the
initial situations of the parties, as might have been depicted (recognised) in the state of
consensus in idem are revealed not to be fair representations of the actual initial situations
of the parties. Moreover, if the expectations that were the basis of a contracted settlement
fail to be fulfilled, there may also be some recourse to legal process. In both of these
cases what the contract has failed to deliver is the necessary predictability on which the
particular economic relation was predicated in that incidence. So, contract law involves
a promise of performance, a projection forward of an expected benefit,11 and as such
further underpins the predictability of economic relations. If generally the rule of law can
be related to the ‘demands’ of capitalist society – as depicted by behavioural economics –
then contract law is a more specific manifestation of that relation.
Contract also delivers some notion of fairness between market actors inasmuch as
economic interactions under contract seem to have the patina of voluntary involvement.
The underpinning laws of contract allow market actors to infer some confidence about
their ability to seek redress where expectations go awry and as such also help address
the more general issue around corruption and bad faith that the norm of the rule of law
ameliorates on a day-to-day basis. There is also a clear narrative element to the role of
contract: formally equal (economic) actors enter into an agreement to exchange resources
of one sort or another for mutual benefit. The (implied) story of contract is one of projec-
tion forward of agreements, in a context where there is some ability to seek correction
9
May, Contract as normative regulation: 44–5.
10
A.W. Simpson, ‘Innovation in Nineteenth Century Contract Law’ Law Quarterly Review
91(362), April 1975: 247–78, at 266/7.
11
Jody S. Kraus, ‘Philosophy of Contract Law’ in: J. Coleman and S. Shapiro (eds) The
Oxford Handbook of Jurisprudence and Philosophy of Law Oxford: Oxford University Press, 2002:
687–751, at 738.
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when deception or non-fulfilment reduce or remove the utility to one or other of the
actors to the agreement. This reinforces both the value and normative shape of the rule
of law while also providing a mechanism through which aspects of its political economic
value can be delivered in a manner unencumbered by ideology or political commitment.
Furthermore, and moving from the personal to larger scale activity, as global supply
chains have reached out into new areas (driven by corporate investment strategies) so this
form of private (transnational) governance has been carried into new realms and new mar-
kets as the established common sense of how to manage relations at a distance. This has
required supply chain contracts to include clear choice of law clauses to ensure claims can
be litigated in courts where the lead contractor is satisfied that results will be predictable
and manageable, with the actual rules for suppliers incorporated into contractual terms
and conditions.12 The use of contract terms has enabled lead contracting corporations
to attempt to shift the practical requirements of corporate social responsibility into legal
requirements for their suppliers, although the reach of such legal affect is only to the first
tier of suppliers with whom contracts are concluded.13 Nevertheless, and more widely,
within the globalised corporate supply chain the rule of law is normalised and as such
exchange relations are only conceivable through the utilisation of contract.
This is to say, it is hard to imagine a form of capitalist market relations that does not
explicitly or implicitly rely on a form of contract(ing) to underpin economic relations.
Thus, and conversely, without some extended semblance of predictability (delivered in
this way) we might want to argue that it would be difficult to suggest that a particular set
of economic relations (here capitalistic) were governed by the rule of law. Space precludes
an extended historical development of this issue, but it is relatively clear that one can
derive a generalised link between successful and voluntary market relations and the (nas-
cent or proto-) rule of law delivery of the social value of predictable exchange relations.14
Having briefly set out why claims for the value of the rule of law in economic (and
particularly capitalistic) relations have focussed on the need for predictability I will now
expand the scope of this concern to the wider realm of social relations (where markets
may or may not be the mechanisms of engagement).
PREDICTABILITY, POLITICS AND THE RULE OF LAW
As I have been suggesting, predictability is central to the rule of law, so that both political
and economic actions that are legal remain legal and indeed given that laws should not be
retrospective cannot latterly be rendered illegal. As the late Lord Bingham summed up
this broad idea: ‘The law must be accessible and so far as possible intelligible, clear and
predictable.’ We can hardly expect law-abiding behaviour if it is impossible for those so
governed to be unable to ascertain what the law actually is and what it will be as their actions
are undertaken.15 The rule of law, of course, delivers a promise of predictability that while
12
Andreas Rühmkork, Corporate Social Responsibility, Private Law and Global Supply Chains
Cheltenham: Edward Elgar Publishers, 2015: 85–92.
13
Ibid.: 123.
14
May, The Rule of Law: Ch. 5 and citations therein.
15
Tom Bingham, The Rule of Law London: Allen Lane, 2010: 37–47.
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encompassing the realm of economic relations has a much wider salience that I will briefly
lay out in this section. Perhaps most obviously, the social value of predictability is tied up
with (the absence of) trust; where we trust our government, or other actors with whom we are
engaged in legally structured relations, then we will likely accept more flexibility than where
that trust is absent.16 I have already suggested this is the case for relations in the economic
sphere, but how does this play out in the related (and even interpenetrated) political realm?
A key bridge between economistic accounts of the role of the rule of law (and more
specifically the value of predictability within that normative cluster) and wider society is
the work of Frederick von Hayek. For Hayek, the most important distinction to be made
between a free country and one under arbitrary government is the existence/acceptance
of the rule of law in the former. As Hayek argues:
While every law restricts individual freedom to some extent by altering the means which people
may use in the pursuit of their aims, under the Rule of Law the government is prevented from
stultifying individual efforts by ad hoc action. Within the known rules of the game the individual
is free to pursue his personal ends and desires, certain that the powers of government will not be
used deliberately to frustrate his efforts.17
Certainly we might put Hayek’s notion of the rule of law at the thinner end of the compara-
tive continuum,18 and likewise we should acknowledge the centrality of the market as a
practice for organising society in his approach. That said, here I want to highlight his notion
of the social danger of ad hoc actions by those in political power. And to be clear: here I
take Hayek’s argument against ad hoc actions to be an argument for (legal) predictability.
Likewise, Joseph Raz has pointed out, at its most basic, law ‘must be capable of guid-
ing the behaviour of its subjects’,19 which is to say it must not be secret nor physically
impossible to follow and must be available for scrutiny so that such legal ‘guidance’ can
be assessed and followed. Raz then goes on to produce a set of principles that underpin
the rule of law, which I will not detail here other than to emphasise a few elements which
reflect a need for predictability: laws cannot be retroactive; should be relatively stable,
because law frequently guides future and planned actions; if the law is to be predictable
and stable, then adjudication must be guided by legal principles, not extra-legal political
influence; cases should receive a fair hearing, with an absence of bias, and open pro
cesses.20 However, Raz stresses that the rule of law can only be judged in relation to the key
requirement that the law is able to offer guidance as regards social activity and practice;
clearly future guidance can only be gained if the (rule of) law is itself predictable in its
effects and impact. This is why Adriaan Bedner’s recent survey of debates about what
constitutes the rule of law proposes that one of its key procedural elements is that law is
formalised (clear, certain/fixed; accessible and predictable in application).21 This is to say,
16
Ronald Dworkin, Law’s Empire London: Fontana Press, 1986: 367.
17
F.A. Hayek, The Road to Serfdom London: Routledge, 1944 (reprinted 1986): 54.
18
May, The Rule of Law: 41–2.
19
Joseph Raz, The Authority of the Law: Essays on Law and Morality Oxford: Clarendon Press,
1979: 214.
20
Ibid.: 214–18.
21
Adriaan Bedner, ‘An Elementary Approach to the Rule of Law’ Hague Journal of the Rule of
Law 2(1) (2010): 48–74, at 58–9.
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knowing what the law is, I can have confidence in how society will judge my actions while
also expecting such laws to continue into the future in which I undertake such actions; we
can (again) plausibly summarise this as predictability.
Predictability enhances the ability of social actors (which is to say us) to act in their/
our own interests, knowing how the law will impact on the furtherance (or curtailment)
of such interests. As we plan our lives (and not merely our economic activities) we know
the law will impact on those plans, by limiting our options in some directions, but by
facilitating certain other activities, and by allowing us to predict how others’ actions
may be treated by the law when they impact upon us.22 Most importantly, our effective
autonomy to plan our lives, while constrained within the limits of acceptable behaviour
under the rule of law, is enhanced because we can predict how, why and when we might
abut against the limitations that society has settled through its system(s) of law.
However, as Jeremy Waldron argues, specifically against the Hayekian position, while
the rule of law and predictability is necessary for a well-governed society they are not
sufficient.23 Waldron’s position is self-avowedly based on a liberal conception of freedom.
As he notes, the liberal defence of the rule of law is that a person cannot choose based on
their best interests ‘unless he knows the sort of social environment he faces, for without
that knowledge he won’t have any idea which decisions of his will have what effect on his
life’.24 However, the reason that predictability can remain in even the thinnest understand-
ings of the norm of the rule of law, is that as such this question of being able to judge the
likely effects and consequences of your actions does not require any necessary enjoyment
of specifically liberal freedoms – the ‘freedoms’ entailed could be different but predictable
in a state that while not seeming to extend liberal freedom to its citizens nevertheless was
able to plausibly claim that the law clearly gave an indication of how any action would be
understood, permitted or sanctioned.
Waldron has sometimes put the liberal position more stridently:
(on most accounts) the whole point of the rule of law is to secure individual freedom by providing
a predictable environment in which individuals can act freely, plan their affairs, and make their
decisions. To eliminate uncertainty in the interests of freedom and to furnish an environment
conducive to the exercise of individual autonomy – that is the raison d’être of the rule of law.25
Here, interestingly Waldron is arguing for the value of predictability in international

relations as a realm that can be (although is not necessarily) subject to the normative
constraints of an (international) rule of law. However, the argument is really one that is
related to the rule of law as a norm itself, not only this particular application. This sug-
gests the social value and benefit and planning our lives (perhaps even edging into a right
to plan) is a central/core aspect of the rule of law’s normative purpose.
While linked to the liberal normative tradition, the link between freedom, the rule
22
Jeremy Waldron, ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law’
The European Journal of International Law 22(2) (2011): 31543, at 53.
23
Jeremy Waldron, The Law (Theory and Practice in British Politics) London: Routledge,
1990: 51.
24
Ibid.: 50.
25
Waldron, Are Sovereigns Entitled to the Benefit of the International Rule of Law: 338,
emphasis added, footnote deleted and acronyms resolved.
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of law and predictability is perhaps best generalised in the work of Amartya Sen, and
particularly in his book on Development as Freedom.26 Without rehearsing the capabili-
ties approach to human rights in detail, central to Sen’s argument is that freedom is the
actual ability to take advantage of (posited) opportunities. Thus, while capabilities are
themselves important – the ability to act is not merely an issue of negative liberty of a lack
of constraints but crucially involves the positive facilitation of this ability; an environment
in which we can plan to enact our capabilities is crucial. This requires a significant level of
predictability in society if freedom is to be more than merely an opportunistic possibility
constantly rehearsed (and hoped for) as events unfold.
This is why Andrei Marmor has argued that the predictability of the legal environment
must therefore be central to the rule of law, allowing people to plan their social conduct:
[W]e can see that law’s failure to create a predictable legal environment would amount to a double
flaw: both functional and moral. From a functional perspective, the law would fail to guide
people’s conduct since it would undermine their ability to plan their conduct in advance. And
from a moral perspective, such a legal regime would manifest a profound disrespect for people’s
freedom and autonomy.27
This, of course is a matter of degree, but although they cannot assume nothing will
change in the future, people/citizens must be able to enjoy a ‘certain range of legitimate
expectations about the future normative environment’.28 As this suggests, we should avoid
essentialism and perhaps follow Timothy Endicott who warns that while we might say
that there is a deficit in the rule of law when there is too much unpredictability, equally
given the manner in which the rule of law operates (and is characterised in jurisprudence)
unpredictability is not an absolute deficit in itself.29 Thus, as studies of judicial practice
have demonstrated there is always some variability in the law, but equally, expansive or
continued arbitrariness will undermine a claim for the rule of law to exist; however in
many ways the rule of law requires some such variability, especially if in its thick depiction
it is to respond to social changes. This comes down to an assessment of the balance that
is most socially beneficial between predictability and flexibility,30 but by allowing there is
a social trade-off between these two values we once again reinforce the centrality of the
appeal to predictability.
THE RULE OF LAW INDEX AND THE IMPORTANCE OF

PREDICTABILITY
There are many different ways of disaggregating what the rule of law might encompass,
as other chapters in this handbook have demonstrated, and thus, many ways of thinking
26
Amartya Sen, Development as Freedom Oxford: Oxford University Press, 1999.
27
Andrei Marmor, ‘The Rule of Law and its Limits’ Law and Philosophy 23(1) (January 2004):
1–43, at 23.
28
Ibid.
29
Timothy A.O. Endicott, ‘The Impossibility of the Rule of Law’ Oxford Journal of Legal
Studies 19(1) (Spring 1999): 1–18, at 16.
30
Dworkin, Law’s Empire: 149.
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about how the rule of law might relate to the desire or need for social predictability. To
widen the scope of the discussion a little further, I will now relate the question of predict-
ability to the aspects of the rule of law that the World Justice Project (WJP) utilises in their
regular Rule of Law Index.31 While by no means faultless, as discussed in the introduction
to this volume, the WJP’s index can be seen as the currently most developed multifaceted
but practice based conception of the rule of law. The index is based on eight factors (each
of which is subject to evaluation for each jurisdiction assessed) which the WJP regards as
central and crucial to the maintenance of the rule of law. For each of these measures the
WJP surveys a range of professional and social groups to gain assessments, which are then
aggregated into a country score on a regular basis to allow time-series comparisons for
policy makers and others interested in the international development of the rule of law.
Here, what I am seeking to explore is not the plausibility or utility of such an assessment
strategy, but how predictability is freighted within each element the WJP deploys.
1. Constraints on Government Powers
This first element identified by the WJP concerns the effectiveness of the checks on
governmental power both through processes such as judicial review and through the
effectiveness of (and allowance for) non-governmental oversight by the media and civil
society. Crucially this includes the issue of political transitions; do they take place in
accordance with the law; are the results of election(s) recognised and enacted? What is
being ascertained here is whether first government powers are being used in predictable
ways, but perhaps more importantly whether, when they are not, there are clear mecha-
nisms for review and revision. The rule of law here does not merely deliver an apprecia-
tion of predictable political outcomes, but offers a mechanism by which a posited lack
predictability can be tested, of which judicial review is likely the most common.32 Thus,
actions seen as not being what might have been expected are subject to review by which
they can be adjudged and either found to be legal (and thus in some manner predictable,
and therefore providing the basis of modified expectations) or not conforming to the law
(and hence representing outcomes that a reasonable knowledge of legislation would not
have led social actors to expect).
2. Absence of Corruption
Here the WJP is explicitly asking about three specific forms of corruption across a range
of government actors (from judges to the military): bribery; improper influence by
public or private interests; and the misappropriation of public funds or other resources.
Indeed, across a range of international organisations, corruption is twinned with good
governance as its associated ‘other’, which is to say it is presented as a clear threat to good
31
I have taken the eight elements of their characterisation from Rule of Law Index 2016 World
Justice Project: Washington DC, 2016: 29–43, which builds on but also modifies the original set of
elements with which this project commenced in the first index published in 2008.
32
Eduardo Jordăo and Susan Rose-Ackerman, ‘Judicial Review of Executive Policymaking
in Advanced Democracies: Beyond Rights Review’ Administrative Law Review 66(1) (2014): 1–72.
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governance.33 Once again, these (necessarily secret or obscured) actions disrupt what a
person might expect given their reasonable knowledge of a country’s law and legislation.
Indeed, even if there a realisation that corruption is present, it’s very arbitrary character
reduces the ability to predict outcomes that are compromised by such side dealings. We
might recognise that open social influence (itself common in democracies) will have an
impact, leading us to organise groups to back our own interests, but where it is unclear
why a political decision is being taken (due to hidden and corrupt practices) there is little
hope that outcomes can be easily predicted, leading to either unhelpful social cost(s) or
even the withdrawal from certain activities that are rendered subject to unacceptable levels
of risk of unexpected consequences.
3. Open Government
With its third element, the WJP moves into a realm of discussion that has been central
to jurisprudential accounts of the rule of law for many years. If laws and legislation are
not openly publicised or available to those that are governed it is difficult to see how they
can assess the expected reaction to any specific action or behaviour undertaken. Even the
thinnest and procedurally focussed accounts of the rule of law identify the link between
open/free access to legislation and the claim that the rule of law obtains. Ignorance of the
law may be no defence, but certainly any failure to publicise, or publish, the details of a
law makes legitimated enforcement difficult or when rule of law norms hold, impossible.
4. Fundamental Rights
The protection of human rights is often regarded as part of the thicker approach to the
rule of law,34 and one might argue that only where a state accepts and proposes that it
respects them might any citizen of that country have a reasonable expectation that such
fundamental rights would be respected. This is a plausible argument, but increasingly for
states that wish to make a claim in public forums (such as the United Nations) that they
are acceding to the (global) social norms of the rule of law, a respect for human rights has
become at least a necessary rhetorical flourish. Thus, here the WJP is suggesting that the
predictable recognition of human rights is part of the rule of law, and thus where such
rights are not recognised in a predictable manner, given the clearly stated international
statement(s) about what such protection entails, then no claim that the rule of law obtains
can be properly (or fully) maintained.
5. Order and Security
The question of law and order is central to all depictions of the rule of law; the key issue is
whether victims of crime can expect that perpetrators will be punished and how effective
this acts as a general deterrent against criminality. Most importantly, for a deterrent to
33
Stephen Humphreys, Theatre of the Rule of Law: Transnational Legal Intervention in Theory
and Practice Cambridge: Cambridge University Press, 2010: 192.
34
Bingham, The Rule of Law: 66–84.
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work, of course, the workings of the law need to be predictable most especially for those
considering breaking the law; while not all criminal activity is premeditated, the law’s pre-
dictability should at least act to deter those considering illegal action(s) in advance of the
moment of execution. Without the shaping of expectations of sanction or punishment it
is difficult to see how the rule of law would be effectively able to deliver order and security
(of the person or of social practices). Certainly, order and security can be delivered by the
threat and actuality of force, but the rule of law is intended to remove such direct actions
in the establishment and maintenance of social order and personal security.
6. Regulatory Enforcement
Regulations by their very character are intended to shape social predictions about allowed
and allowable behaviour or activity; in this they are the mirror image of law and order
provisions in that instead of forbidding behaviour regulations are generally facilitative
through the shaping and guiding of actions and practices that are expected to take place.
The WJP is far from alone is making this notion of regulatory enforcement stretch cru-
cially to the expectation that property rights are secure and respected, and indeed where
one links the rule of law to liberal capitalism this is a central contention,35 but the question
of expectations derived from regulatory knowledge is of course wider than the realm of
economic relations. In one sense linking back to 2. and 3. above, the key aspect the WJP
is seeking to emphasise is that the law is clearly articulated, that its effects are open and
predictable and that therefore social calculation(s) about the future outcomes of proposed
activity are reliable inasmuch as the outcomes are shaped by regulatory instruments.
7. Civil Justice
The question of access to justice (both speed and cost), the impartiality of the adjudica-
tion process, as well as the effectiveness of alternative dispute settlement mechanisms
are all well-articulated in most discussions of the rule of law. Linked to a number of the
previous elements, here (again) the centrality of predictability is tied to the ability of social
actors (and/or groups) to be able to secure justice where outcomes have not taken the
expected or predicted path, where this (it is claimed by litigants) is linked to the non-legal
actions of others; most obviously (again) linking back to 2. above, civil justice can only be
predictable where there is no undue or corrupt influence brought to bear on the formally
neutral process of adjudication.
8. Criminal Justice
Although here actions identified as criminal are the focus of the WJP’s assessment, rather
than civil (and recognising this is potentially both a porous and moving border between
these two realms of law, when states are compared), again it is the question of the ability
to predict the absence of law-breaking in the consideration of future actions, and the
expectation that such illegality will be subject to state action, so as to deter it in advance
35
Danny Nicol, The Constitutional Protection of Capitalism Oxford: Hart Publishing, 2010.
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of the proposed act which would have an impact of lawfully undertaken activity. This is
also clearly linked to law and order while being more focussed on everyday criminality
rather than the overall social context.
As this suggests, there is a good argument that rule of law and predictability are linked
to each other across the range of dimensions the WJP recognises as making up the rule
of law. This brief survey of the links demonstrates that while it is easy to make the case
in the realm of economic relations that the rule of law’s delivery of predictability is a vital
element of its appeal, in fact across a much wider conception of the rule of law’s role in
society, we can see how the delivery of predictability has considerable social value, and
indeed as Unger notes is one of the most general attributes that might be claimed for the
norm. However, it is also the case across all these areas if we allow for forms of judicial
argumentation through the process of deliberation of specific cases, the rule of law (espe-
cially in its thicker manifestations) retains some unpredictability (or indeterminism) based
on the need for judgement in difficult cases.36 This is to say while the rule of law must
and will aspire to predictability, if it is to remain linked to the changing normative and
social context there will be moments when expectations will be unfulfilled. The question
of how fatal this might be to any specific claim that the rule of law obtains is a question
of how often litigants and citizens find themselves in such a situation and what threshold
one might hold for an acceptable level of such non-predictability?
CONCLUSION: PREDICTABILITY AND A PERMISSIVE IDEA

OF THE RULE OF LAW
Returning to my initial point about an inclusive or pluralist approach to the rule of law
that likely leads to a focus on a few core elements; here I have been proposing predictability
as one of the most important elements. Thus for Nico Krisch, the rule of law, when treated
as a global norm becomes more an issue of accepted and predictable social practice, rather
than necessarily shared wider normative elements.37 Legal pluralism requires the notion of
the rule of law to become a more abstract set of principles about procedural similarities
that while requiring some social recognition of the value of lawfulness does not require
this to be articulated in a way that sits within westernised notions of the rule of law state
or society. As Franz von Benda-Beckman puts it, here legal pluralism ‘treats all laws
according to the same analytical standard. It does not postulate any concrete empirical
form or social and political significance of any law’.38 This is to say, beyond some very
basic facilitative mechanisms and protections for effective (individual) autonomy, if the
rule of law is to encompass difference, allowing such difference to be articulated within the
norm, then the common sense of the rule of law will be tied up with the establishment of
36
Jeremy Waldron, ‘The Rule of Law and the Importance of Procedure’ in: J.E. Fleming (ed.)
Getting to the Rule of Law (Nomos L) New York: New York University Press, 2011: 1–31, at 22.
37
Nico Krisch, ‘The case for pluralism in postnational law’ in: G.de Búrca and J.H.H. Weiler
(eds) The Worlds of European Constitutionalism Cambridge: Cambridge University Press, 2012:
203–61.
38
Franz von Benda-Beckman, ‘Legal Pluralism and Social Justice in Economic and Political
Development’ IDS Bulletin 32(1) (2001): 46–56, at 49.
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predictability of social effect. At its most brutal, a system where we can predict systematic
prejudice and partiality might well not be pleasant or liberal but would allow us to plan
our social practice.
This of course leads back to the issue of how one defines the rule of law norm and its
core elements; a very thin notion of the rule of law may indeed be able to encompass such
plurality but by trying (politically) to satisfy a wider range of traditions, would it in the
end lose its appeal as political value altogether? Conversely the continued appeal of other
rule of law norms may be accomplished by the acceptance of a relaxed (less absolute)
understanding of the Westernised rule of law itself; an acceptance that it provides less
certainty and predictability than its (often) mythical characterisation suggests.39 We
should be wary of depicting other rule(s) of law as failing to meet an absolute standard;
by foregoing such forms of critique, any two opposing depictions may be able to move
nearer to each other, supporting a more pluralist standpoint on the issue. While this might
shift the range of threshold(s) that could be identified for the acceptance by anyone that
a specific claim that the rule of law obtains is justified, it does not remove a threshold
condition of some sort completely. And as such, this approach to legal pluralism returns
to the issue of universal claims, merely changing the level of abstraction or generality at
which such discussion might take place.
As I have noted this does suggest the role of contract not so much as an actual social
mechanism but as a way of understanding the normative appeal of predictability; many
social relations can hardly be formally regarded as contractual but the norms of contract-
ing actually reflect the manner in which the rule of law plays out in the everyday. While in
one sense contracts are a private law mechanism, their separation from public state-law
is far from absolute or complete,40 and as such contract(ing) benefits (perhaps at times
indirectly) from the normative heft of the rule of law as embedded within the notion
of legitimate sovereign state authority. As this indicates there is a complex relationship
between private and public where the idea of the rule of law can be seen as very powerful
institutionalised interface between them. The normative role of the idea of contract
therefore makes predictability central to the norm of the rule of law, and by doing so
contributes to the expansion of the scope of the rule of law beyond the formalities of
state-made formalised law; to reinforce the norm through use.
In this chapter I started by suggesting that it is plausible to see contract law and the rule
of law as inter-twinned social practices and that both are co-constitutive and co-justifying
when our focus is on whether predictability is a core element of the rule of law, however
thin its depiction. I then suggested that if we widen our focus beyond the economic, but
retain the insights gained from a consideration of contract qua the rule of law, then the
possible centrality of predictability as a social value could be understood much more
widely than just its role in exchange relations. The rule of law’s normative traction is not
limited to those public law realms that have traditionally fed into jurisprudential discus-
sions of its characteristic practices; rather its normative weight shapes private law, at the
39
Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law Oxford:
Oxford University Press, 2010: 280–85.
40
Morris R. Cohen, ‘The Basis of Contract’ Harvard Law Review 46(4) (February 1933):
553–92, at 585–8.
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very same time that the grounding of contract in the norms of the rule of law widens the
apparent applicability of these norms. Utilising a widened depiction of the rule of law as
a realm or terrain of practice, by deploying the World Justice Programme’s Rule of Law
Index, I then sought to explore how each element was freighting the value of predict-
ability within its depiction of valued practice. If predictability has a social value, which I
have sought to establish above, then its centrality to the absolute core of the norm of the
rule of law, makes it a useful threshold indicator when seeking to develop and utilise a
pluralised, non-Western-centric and globalised view of the rule of law as (still) a common
sense of politics. Without a pretty strong case for the predictability of the law, it would
seem unlikely that a claim that the rule of law exists in any particular jurisdiction could
be upheld, and as such it is really a core element of the norm.
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7. The rule of law in inter-national relations:
Contestation despite diffusion – diffusion through
contestation
Antje Wiener
INTRODUCTION
The ‘high degree of consensus on the virtues of the rule of law is possible only because of
dissensus as to its meaning’.1
This chapter discusses the rule of law as an example of the interplay between practices
of constitution and the contestation of fundamental norms in global governance.2 Like
most fundamental norms (or principles) the rule of law’s universal validity claim is glob-
ally well diffused, and at the same time stands highly contested locally. The ‘apparent
unanimity in support of the rule of law is a feat unparalleled in history. No other single
political ideal has ever achieved global endorsement’.3 Yet, it is also ‘“an essentially
contested concept”, that is, a notion characterised by disagreement that extends to its
core’.4 Dissensus and consensus are two aspects of the same process; they are connected
through practices. Therefore, this chapter focuses on the practices of norm validation,
which are presented as part of a “cycle-grid model”5, so as to facilitate research that
takes account of both empirical (mapping) and normative (shaping) dimensions of
norms research in international relations (IR) theory and international law.
The rule of law has been celebrated as the single most agreeable norm in the global
realm,6 but a norm’s impact never corresponds with its cover. It is as much a common
sense among international lawyers that a norm’s acceptance grows with the degree
of elusiveness,7 as it is a shared wisdom among IR theorists that a norm’s acceptance
depends on the degree of social recognition.8 As regards social recognition, ‘there are
1
Chesterman, Simon. 2008. ‘An International Rule of Law?’ American Journal of Comparative
Law, 56(2) for this reference I thank Christine Schwöbel-Patel.
2
This chapter was written while the author was a Visiting Fellow at the Lauterpacht Centre
of International Law and at Hughes Hall at the University of Cambridge (2016). Generous
funding of the Volkswagen Foundation for an Opus Magnum Fellowship grant (2015–17) and
institutional support offered by the Law Faculty of the University of Cambridge are thankfully
acknowledged.
3
Tamanaha, Brian Z. 2004. On the Rule of Law. History, Politics, Theory, Cambridge:
Cambridge University Press, p.3.
4
Ibid., quoting Waldron.
5
The model is introduced in detail in Wiener 2018, Chapter 2.
6
Ibid.
7
Chayes A. and Chayes A. 1993. ‘On Compliance’. International Organization, 47(2) pp.175–205.
8
See: Finnemore M and Sikkink K. 1998. ‘International Norm Dynamics and Political
Change’. International Organization 52(4) pp.887–917; March G and Olsen P. 1998. ‘The
109
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almost as many conceptions of the rule of law as there are people defending it’.9 In today’s
globalised context of inter-national relations10 there is considerable variation regarding
what the role of the rule of law is and ought to be. And with regards the norm’s elusiveness,
Tamanaha notes, ‘(N)otwithstanding its quick and remarkable ascendance as a global
ideal, (. . .) the rule of law is an exceedingly elusive notion.’ Out of the multitude of global
stakeholders11 few ‘who believe in it, ever articulate precisely what it means’.12 What
makes the rule of law special to students of international relations is that, like any other
global norm that travels across national boundaries the rule of law is contested, however,
unlike most fundamental norms, it enjoys wide recognition on a global scale. This chapter
elaborates on the puzzle and what it implies for the diffusion of the norm.
Given that diversity has been enhanced rather than reduced by globalisation, this
status is unlikely to change.13 Universal validity claims never fit seamlessly into the
societal environments where they stand to be implemented; they are continuously
challenged when particularistic validity claims are mobilised in the social environment
where a norm stands to be implemented.14 It follows that the question, how contested
meanings of fundamental norms play out when a norm stands to be implemented in a
specific context, remains a central issue for global governance. A helpful differentiation
has been offered by international lawyers who distinguish the norm’s meaning based
on the categorisation of ‘thinner’ and ‘thicker’ conceptions of the rule of law, as well
as recognising differences in constitutional ‘culture’ as the backdrop against which the
rule of law is implemented.15
Accordingly, the ‘thicker’ conceptions include the substantive quality of the rule of law,
given its reflection in constitutional principles such as human rights, democracy, equality
before the law and so on; the ‘thinner’ conceptions refer to the procedural instruments
in order to warrant the rule of law in a specific organisational context; and the ‘cultural’
dimension refers to larger historical processes as contingent contexts that enable or
undermine implementation and respect of the rule of law. While the former two concep-
tions offer guidance for implementation the third remains theoretically more elusive. For
example, in a Report on the Rule of Law the Venice Commission notes:
Institutional Dynamics of International Political Orders’. International Organization 52(4)

pp. 943–69.
9
Taiwo, Olufemi 1999. ‘The Rule of Law: The New Leviathan?’ Canadian Journal of Law &
Jurisprudence, 12(1) pp.151–68.
10
Note that the term ‘inter-national relations’ is used to describe relations between nationally
distinct agents in the global realm. In turn, ‘international relations theory’ is used when referring to
the discipline of IR Theory.
11
In the following the term ‘stakeholder’ is used to indicate a legitimate interest in a norm of
global governance because an agent in inter-national relations is affected by it.
12
Tamanaha. 2004.
13
Sassen S. 2014. Expulsions: Brutality and Complexity in the Global Economy. Belknap Press.
14
See: Brown, Chris 1997. ‘Universal Human Rights: A Critique’. International Journal of
Human Rights 1(2) pp.41–65; Dunne, Tim and Nicholas J. Wheeler 1999. Human Rights in Global
Politics, Cambridge: Cambridge University Press; Finnemore, Martha, and Stephen J. Toope 2001.
‘Alternatives to ‘Legalization’: Richer Views of Law and Politics’. International Organization 55(3)
pp.743–58.
15
Venice Commission, Opinion on Poland 2016, CDL-AD(2016)001 Opinion no. 833/2015 at:
http://www.venice.coe.int/webforms/documents/?pdf.
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The rule of law in inter-national relations 111
generally speaking there is a rivalry between more formal (‘thinner’) conceptions and more sub-
stantive (‘thicker’) ones. Simply put, this distinction concerns the question of whether the rule
of law principle consists only of process and form-related requirements or whether, in addition,
it contains requirements regarding the content of the laws that rule. Human rights are the key
example of value requirements inherent in a substantive concept.16
The Venice Commission also stresses the importance of a ‘common feature of

European constitutional culture’, when examining Poland’s implementation of the rule of
law.17 However, as comparative constitutional lawyers have pointed out, cultural diversity
makes for the ‘odd details’ which often fall victim to processes of norm implementation
when the thinner concept of the rule of law is prioritised.18
In turn, recognition theorists, especially those in the Canadian ‘civic freedoms’
tradition,19 have been grappling with the accommodation of diversity, while maintaining
universal validity claims.20 Recognition theorists have pointed out that while regulatory
practices have converged due to the impact of international organisations, agreements
and treaty regimes, cultural practices have often led to resistance to norm convergence.21
By contrast, sociological constructivists in IR have been mostly interested in the question
of why and whether states comply with such norms.22 This was indeed the leading ques-
tion for IR theorists who turned to norms as part of the social constructivist research
programme in the late 1990s. The programme prioritised the impact of norms on state
behaviour; however, it left their legitimating role in inter-national relations largely to one
side.23 While there is now a growing IR literature that addresses ‘practices’ and ‘relation-
ality’, taking into account cultural background experience, this literature does remain
notably silent on norms.24 Some of it goes as far as proposing to do away with norms to
focus on ‘layered meanings’ and ‘cultural knowledge’ instead.25 This has left IR theory
16
Venice Commission, Report on the Rule of Law2010: 3; details at: http://www.venice.coe.int/
webforms/documents/default.aspx?pdffile=CDL-UDT(2010)022-e.
17
Venice Commission, Opinion on Poland, 2016: 8.
18
Compare: Frankenberg, Günter 2010. Constitutional transfer: The IKEA theory revisited,
International Journal of Constitutional Law, 8 (3): 563–79 and Uitz, Renáta 2015. Can you tell when
an illiberal democracy is in the making? An appeal to comparative constitutional scholarship from
Hungary, International Journal of Constitutional Law, 13(1): 279–300.
19
Tully James 2014. On Global Citizenship. Bloomsbury Academic
20
See: Taylor, Charles 1993. ‘To Follow a Rule . . .’ In Bourdieu: Critical Perspectives, edited
by Craig Calhoun, Edward LiPuma and Moishe Postone, 45–60, Cambridge: Polity Press; Tully,
James 1995, ‘Strange multiplicity: constitutionalism in an age of diversity’, John Robert Seeley
lectures, Cambridge: Cambridge University Press; Coulthard, Glen Sean 2004. ‘Culture, Consent,
and the State in the Struggles of Indigenous Peoples for Recognition and Self-Determination:
Social Constructivism and the Politics of Critique’. Consortium on Democratic Constitutionalism
(DEMCON) Conference ‘Consent as the Foundation for Political Community’, University of
Victoria, BC, 1–3 October 2004.
21
Tully, 1995. ibid.
22
Checkel J. 1998. ‘The Constructivist Turn in International Relations Theory’. World Politics
50(2) pp.324–48.
23
Niemann H and Schillinger H. 2016. ‘Contestation all the Way Down?’ International Politics
43(1) pp.29–49.
24
Frost M and Lechner S. 2015. Understanding Practices from the Internal Point of View.
Journal of Political Theory. Cambridge University Press.
25
Bueger C and Gadinger F. 2014. International Practice Theory. Palgrave Macmillan.
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with a gap between formal validation of norms as a subject of legal studies, on the one
hand, and cultural generation of knowledge as a subject of sociology or cultural studies,
on the other.
Against this backdrop, this chapter suggests it is both unnecessary and unhelpful
to shift from political science, (or for that matter) legal studies, to cultural studies
altogether in order to address the gap between formal validation and everyday mean-
ings in international relations. Instead, I propose a framework that is able to account
for everyday practices when implementing norms. Considering the under-researched
impact of the cultural dimension, and following the recognition theorists’ analysis of
the interplay between regulatory and cultural practices, I will argue that cultural prac-
tices are not merely effective with regards norm implementation (addressed by vertical
top-down or horizontal policy strategies), but they also have an effect on the meaning
of a norm (addressed vertically bottom-up, as well as horizontally through political
struggle). To understand how this effect works out, we need to better understand how
cultural practices impact norm implementation and norm change (compare Table 7.2
below).
Two questions guide the argument which this chapter develops in some detail over
the following three sections. The first is about situating norm clashes in specific sites
(empirical location): where and when do norms clash? And the second question is about
linking validity claims with particular interpretations (normative assessment): who has
access to norm validation and to what degree? Regarding the first question, three condi-
tions for enhanced norm contestation have been identified, namely, contingency, vari-
ability of social practices, and crisis.26 While a long-standing topic of the contestation
approach,27 the effect of cultural diversity on norm validation remains under-researched
in IR Theory. James Tully’s focus on two constitutional practices – one regulatory, the
other customary – therefore provides a welcome focus for examining the conditions
for norm recognition based on enhanced access to contestation for all stakeholders
(‘citizens’) that are affected by the norms of governance. Accordingly, and regarding
the second question, this chapter proposes defining contestation as critical engagement
with norms ‘all the way up’, to overcome the objection to identifying norms based on
recognition, rather than robustness. This bifocal (empirical and normative) approach is
advanced by the cycle-grid model, which links three, rather than two, practices of norm
validation: formal, habitual, and cultural validation (compare Figure 7.1 below). Agents
in inter-national relations who struggle with norms, establishing agency depends on
access to all three practices of validation. This argument is developed and its applica-
tion illustrated in three further sections: Section one presents the argument; section two
introduces the cycle-grid model based norms research in IR Theory; section three turns
to illustrative scenarios where the rule of law stands contested in post-conflict and post-
enlargement societal contexts. The chapter concludes with an outlook for examining
the development and impact of the rule of law, in particular, and norms research in IR,
more generally.
26
Wiener, Antje 2008. The Invisible Constitution of Politics: Contested Norms and International
Encounters, Cambridge: Cambridge University Press. P.64 (Table 1).
27
Tully, James 1995. Strange multiplicity, Ch. 1.
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1. ARGUMENT: ACCESS TO CONTESTATION
The rule of law’s contested universal validity claims were forged in the social and cultural
context of the global West and established by global treaty regimes and international
organisations. At the same time, contestation has produced particular nationally or locally
devised meanings. The global set of meanings range from its general acceptance through
the international law of treaties (as defined by the Vienna Convention and UN legal docu-
ments) to the stipulation of the rule of law (as defined by UN member states’ respective
constitutions). Considering the documented international consensus at the level of heads
of state and governments, in legal documents the rule of law qualifies as a meta-norm
as far as acceptance of the rule of law implies the shared respect of peremptory norms
of international law (i.e., jus cogens). Yet despite declarations all the way down from the
global to the national levels of governance, it is not only China as a powerful member of
the BRICS group that prefers the rule by law over respecting the rule of law.28 Even states
that are firmly anchored within the historical trajectories of the global West and that
share memberships of various international organisations, do not reveal converging inter-
pretations of global norms, as for example the respective British and German respective
understandings of the rule of law reveal. For example, when asked about their preference
about how to approach the pending massive enlargement of the European Union in the
early 2000s, the majority of British interviewees for an earlier research project, insisted on
‘fairness’ (towards candidate states), ‘value-export’ (as the central EU role) and ‘stability’
(regarding the EU’s future); by contrast, German interviewees stressed the importance of
‘compliance’, ‘inclusion’ and ‘finality’ regarding the same questions.29 As the ‘ground rules’
that define how to implement the rule of law stand to be negotiated, the key questions are
where and how this needs to be accomplished in order to warrant more access for affected
stakeholders. The extant norms literature offers two distinct angles on how to address this.
It can be summarised by two juxtapositions: first, diffusion vs. contestation and second,
robustness vs. recognition. The following section elaborates on this observation.
Diffusion vs. Contestation
As universal validity claims of norms which have originally been agreed by heads of state
and government representatives at the treaty-making stage (i.e., applying the practice
of formal validation) are diffused to particular contexts of norm implementation, their
contingent meaning gains in importance. The result is a growing diversity of context
dependent meaning. Accordingly, the ‘normative structure of meaning-in-use’ in which
a norm is embedded and re-enacted by interacting agents, differs according to the
degree of fit encountered in distinct local contexts. It follows that the universal validity
claims of a norm, including the meta-norm of the rule of law, lose clout and meaning
through inter-national travel.30 This process is reflected in the Janus-faced progress of
28
Tamanaha. 2004. Ch. 3.
29
Wiener. 2008. 148 (Table 6.8).
30
Puetter, Uwe and Antje Wiener 2009. ‘The Quality of Norms is What Actors Make of
It: Critical Constructivist Research on Norms’, Journal of International Law and International
Relations 5(1) pp.1–16.
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g lobalisation, which has supported the diffusion of fundamental norms such as the rule of
law, democracy, and human rights. However, both ‘contested multilateralism’ (despite the
UN-based international treaty regimes),31 and ‘contested compliance’ (despite EU-based
regional integration treaties and agreements),32 suggest that norms with universal validity
are difficult to implement other than at the macro-scale of global governance, even when
fundamental norms are not questioned as such. While ‘contested compliance’ with norms
is not exceptional, and often even expected, ‘contested multilateralism’ suggests that the
rule of law’s role as an anchor of modern democratic order is at least contested. I argue
that this development raises larger questions about the prospect of enduring legitimacy
in the global realm. And that, relatedly, the question of how to maintain a modicum of
shared universal validity claims in late modern global society stands to be addressed.33
If the implementation of fundamental norms depends on the translation of universal
validity claims and their interpretation in a given social environment,34 to what degree are
fundamental norms likely to be respected beyond the point of signing a treaty? How do
we know? These questions point to the ‘work’ of norms beyond the stage of their formal
validation in treaties, agreements, or constitutions at the macro-scale.35 If contestatory
practices question the legitimacy of the global order, are there means to change the way
norms work? What is the role of the norm implementation process in this regard?
The points are reflected in a 2004 UNSC Report on the rule of law and transitional
justice in post-conflict societies which notes:
We must learn as well to eschew one-size-fits-all formulas and the importation of foreign models,
and, instead, base our support on national assessments, national participation and national
31
See: Keohane, Robert O. and Julia C. Morse 2016. ‘Reply to critics: Contribution to Global
Constitutionalism Symposium’, Global Constitutionalism 5(3) pp.344–50; Walker, Neil 2016. ‘Post-
national constitutionalism and the challenge of contested multilateralism’, Global Constitutionalism
5(3) pp.309–19; De Burca, G. 2016. ‘Contested or competitive multilateralism? A reply to Julia C.
Morse and Robert O. Keohane’, Global Constitutionalism 5(3) pp.320–26; Zangl, Bernhard, and
Christian Kreuder-Sonnen 2016. ‘Varieties of contested multilateralism: positive and negative
consequences for the constitutionalization of multilateral institutions’, Global Constitutionalism
5(3) pp.327–43; Føllesdal, Andreas 2016. ‘Implications of contested multilateralism for global
constitutionalism’ Global Constitutionalism 5(3): 297–308.
32
Wiener, A. 2004, ‘Contested compliance: Interventions on the normative structure of world
politics’, European Journal of International Relations 10(2) pp.189–234.
33
Compare Onuf, Nicholas 1994 ‘On The Constitution of International Society’, European
Journal of International Law 5(1) pp.1–19, on the constitution of ‘late modern’ international society
through practices and process.
34
Brown, Chris 1997. ‘Universal Human Rights: A Critique,’ The International Journal of
Human Rights 1(2) pp.41–65; Finnemore, Martha, and Stephen J. Toope 2001. ‘Alternatives to
“Legalization”: Richer Views of Law and Politics’, International Organization 55(3) pp.743–58;
Brunnée, Jutta, and Stephen J. Toope 2011. ‘Interactional International Law and The Practice of
Legality’, In International Practices, eds Emanuel Adler and Vincent Pouliot, 108–35, Cambridge:
Cambridge University Press; Forst, Rainer 2010. ‘The Justification of Human Rights and the Basic
Right to Justification: A Reflexive Approach’, Ethics 120(4) pp.711–40.
35
Famously raised by Friedrich Kratochwil a decade before norms research was yet to develop
as a research area in IR and IL, see Kratochwil, Friedrich 1984. ‘Thrasymmachos Revisited: On
the Relevance of Norms and the Study of Law for International Relations’ Journal of International
Affairs 37(2) pp.343–56.
M4581 - MAY_9781786432438_t.indd 114 01/08/2018 14:47

needs and aspirations. Effective strategies will seek to support both technical capacity for reform
and political will for reform.36
This call for a policy that is more aware of diversity and based on ‘localisation’ (i.e.,
focusing on the role of local stakeholders) has been explored by the literature on norm
diffusion.37 Norm diffusion processes invariably add contingency to universal valid-
ity claims: ‘legal transplants, reception, borrowing, adaptation, mutation, influence,
evolution, and, more recently, migration’38 add contingency to a norm, throughout the
diffusion process. Therefore, norm diffusion across constitutional or other group-based
boundaries is expected to generate local resistance to a norm, as well as to related aspects
implied by the universal validity claims a norm carries. Whether or not this resistance is
used to enhance or counter the implementation of the norm depends on whether and
to what degree stakeholders are enabled to engaging critically with the norm (i.e., based
on political agency), or whether they are expected to merely implement the norm (i.e.,
reflecting a lack of political agency). While shifting the focus of norms research on norm
localisation has enabled novel insights on micro level of norm implementation, this shift
has also left a ‘gap’ between the macro-level and the micro-level of global governance.
The gap remains to be filled. The following sections suggest how this may be achieved.
Observation: Robustness vs. Recognition
The extant norms literature suggests two strategies to fill the gap: one contends that in
light of objections, norms need to be made more ‘robust’ in order to work; the other sug-
gests that contestation indicates that the ‘recognition’ of norms must be improved through
critical engagement with norms (i.e., pro-active contestation).39 The logic underlying
the first perspective is largely derived from what is loosely summarised as the ‘diffusion
literature’.40 In turn, the second perspective draws on the less established yet seriously
trending ‘contestation literature’.41 Although there are multiple bridges between both, for
36
See UNSC Report of the Secretary General, S/2004/616, p. 1, at: http://www.un.org/en/ga/
search/view_doc.asp?symbol=S/2004/616.
37
See; Acharya, Amitav 2004. ‘How Ideas Spread: Whose Norms Matter? Norm Localization
and Institutional Change in Asian Regionalism’, International Organization 58(2) pp.239–75.
38
As Frankenberg notes, ‘these terms, I believe, are not ‘only words’ but signifiers of rather
different theoretical approaches and interpretations, at times deployed casually, at others defended
with religious zeal’. See: Frankenberg. 2010.
39
Deitelhoff, Nicole and Zimmermann, Lisbeth 2016. ‘From the Heart of Darkness: Critical
Reading and Genuine Listening in Constructivist Norm Research’. World Political Science Review
10 (1) (April) 17–31.
40
Chayes and Chayes. 1993; Checkel 1998; and for the 2000s follow-up, see: Solingen,
Ethel and Tanja A Börzel, 2014. Introduction to presidential issue. The politics of international
diffusion – A symposium, International Studies Review 16 (2): 173–87 for a summary; Acharya
2004; Zimmermann, Lisbeth, 2016. Same same or different? norm diffusion between resistance,
compliance, and localization in post-conflict states, International Studies Perspective 17(1): 1 98–15;
Draude, Anke, ed 2017. Agency of the Governed, Special Issue Introduction, presented at the
workshop The Agency of the Governed, FU Berlin, SFB700, December 2016 (forthcoming with
Third World Thematics: A TWQ Journal).
41
See: Wiener, Antje 2014. A Theory of Contestation, Berlin et al.: Springer; Havercroft J. 2017.
M4581 - MAY_9781786432438_t.indd 115 01/08/2018 14:47

analytical purposes, it is helpful to identify where they hold differing assumptions about
the quality and role of norms. For example, the diffusion literature prefers to examine
norms and their implementation at distinct ‘levels’ of global governance with a central
focus on the global (i.e., UN committee governance) and local levels (i.e., national non-
state actors), respectively. This focus reflects the key interest of the 1990s constructivist
literature (in IR and IL) in compliance with norms based on the notion of norm-following
on behalf of stakeholders operating within established social groups.42
By contrast, the contestation literature is focused on the constructive aspect of engage-
ment with norms. That is, to facilitate and enhance stakeholder agreement with norms,
this literature seeks to identify and establish conditions for enhanced norm recognition.
Contestation is defined in a two-fold way: first, reactive contestation includes resistance
or objection to norms expressed by agents within the global realm; and second, pro-active
contestation means critical engagement with norms.43 Following Tully’s recognition
theory,44 contestation is seen as an opportunity to allocate and account for the particularity
of validity claims that come to the fore in norm conflicts and to subsequently accom-
modate the particular validity claims of diverse stakeholders vis-à-vis universal validity
claims of a norm. 45 This is achieved with reference to the cycle-grid model of contestation
that relates distinct stages of the norm implementation process to levels of governance and
layers of society.46 For the diffusion literature, a call for more robust norm is the logical
follow-up from contested compliance. In turn, the contestation literature seeks to achieve
mutual recognition about the most agreeable meaning of norms in any given situation.
Proposition: A Modicum of Sustainable Normativity
Building on the contestation literature, this chapter asks how to enhance access to contes-
tation in light of the conditions that affect stakeholders in inter-national encounters ‘on
the ground’ (i.e., at local sites). To that end, I propose a model to explore constraints and
opportunities of stakeholder engagement at time-space specific sites where a stakeholder
finds herself governed by a norm. The model is based on the principle of legitimacy
‘Social Constructivism in International Ethics’. in, Steele, Brent, Robinson, Fiona and Heinze, Eric
(eds) Routledge Handbook on Ethics and International Relations. Routledge
42
Checkel. 1998; Finnemore M and Sikkink K. 1998. ‘International Norm Dynamics and
Political Change’. International Organization 52(4) pp.887–917; March G and Olsen P. 1998.
‘The Institutional Dynamics of International Political Orders’. International Organization 52(4)
pp.943–69.
43
See: Wiener, Antje. 2018. Contestation and Constitution of Norms in Global International
Relations, Cambridge: Cambridge University Press, Chapter 2.
44
See: Tully James. 2004. ‘Approaches to Recognition, Power, and Dialogue’. Political Theory
32(6) pp.855–62.
45
See: Wiener, Antje. 2017a. ‘A Theory of Contestation – A Concise Summary of Its Argument
and Concepts’, Polity 49(1) Special Issue ‘A Theory of Contestation’ ed J Havercroft, first view at:
http://www.journals.uchicago.edu/doi/abs/10.1086/690100; Wiener, Antje. 2017b. ‘A Reply to My
Critics’, Polity 49(1) Special Issue, ‘A Theory of Contestation’ ed J Havercroft, first view at: http://
www.journals.uchicago.edu/doi/abs/10.1086/690101; Wiener, Antje 2016. ‘Contested Norms in
Inter-National Encounters: The ‘Turbot War’ as a Prelude to Fairer Fisheries Governance’. Politics
and Governance 4(3) p.20; Wiener. 2014.
46
Compare section 2, Figure 7.1 below, for details on the cycle-grid model.
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that finds expression in the putative concept of ‘civic freedoms’.47 It is based on the
assumption that the principle of equal access to contestation in a democracy is always
conditioned by access to distinct practices of norm validation. These practices are defined
as a necessary condition for achieving a modicum of sustainable normativity in global gov-
ernance. This modicum of is defined through access to contestation (i.e., Tully’s concept of
civic freedom), and it depends on the degree of social inclusion (i.e., Marshall’s access to
citizenship). Drawing on T.H. Marshall’s citizenship theory where ‘social rights amounted
to the right of a modicum of social welfare and security, to share in social heritage and
live the life of a civilised being’,48 I argue that this ‘modicum of sustainable normativity’
represents the yardstick for recognition in the global domain.49 It is detailed by the right
of access to contestation as a minimal condition of democratic equality among affected
stakeholders in contexts beyond the state, devised from the putative democratic principle
that the governed must be entitled to contest the norms that govern them.
To facilitate the institutional means for the mutual recognition of norms, we need
to begin with instances where norms clash due to diverging stakeholder expectations.
Post-conflict and post-enlargement situations represent environments in which the
likelihood of inter-national encounters where norms are contested is particularly high.50
As a meta-norm, the rule of law is most likely to be contested in contexts that represent
a situation of recent political change: for example, post-conflict and post-enlargement
contexts involve the transition from one political regime to another including the reform
of political institutions. Under these conditions fundamental norms are likely to be con-
tested.51 Social encounters therefore offer opportunities to take account of stakeholder
access to practices of norm validation. By identifying which practices of norm validation
out of three possible practices (i.e., formal validation, social recognition, and cultural
validation) are accessible to the involved stakeholders, the cycle-grid model can explain
processes of normative alienation. To what extent norm alienation can be avoided,
depends on the availability to involved stakeholders of mechanisms that facilitate a norm’s
re-contextualisation in national or local contexts.52 The occurrence of context dependent
meanings has been extensively studied by norms research in IR as well as by recognition
47
See: Tully, James. 2002. ‘The Unfreedom of the Moderns in Comparison to Their Ideals of
Constitutional Democracy’. Modern Law Review 65(2) pp.204–28; Tully. 2004.
48
See: Wiener, Antje 1999. From Special to Specialized Rights: The Politics of Citizenship
and Identity in the European Union, Extending Citizenship, Reconfiguring States. Lanham, Md.
Rowman & Littlefield Publishers. pp.195–27; Marshall, T.H. 1950. Citizenship and Social Class.
Cambridge: Cambridge University Press. pp.10–11.
49
Compare Wiener 2018, Chapter 3.
50
See: Tully. 2004; Wiener. 2008. p.64 (Table 4.1).
51
See: Müller, Jan-Werner 2015. ‘Should the EU Protect Democracy and the Rule of
Law inside Member States?’ European Law Journal 21(2) pp.141–60; Sedelmeier, Ulrich 2014.
‘Anchoring Democracy from Above? The European Union and Democratic Backsliding in
Hungary and Romania after Accession’. European Law Journal 52(1) pp.105–21.
52
In this regard, Frankenberg refers to Legrand’s distinction between ‘“law-as-rule” and
“rules-as-propositional-statements”’ and emphasises the importance of ‘differentiating between
the a-contextual meaning emerging from the wording of a rule and the context-dependent meanings
ascribed to a rule in the process of application by the interpretive community’. Frankenberg. 2010.
p.567 (quoting Legrand; emphasis added).
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theories.53 Thus, in light of the given diversity of inter-national agency, norm clashes not
only predictable but also identifiable. What is less well known are the conditions under
which norm clashes are more or less pronounced. What makes agents clash over norms?
To address this questions, the following section turns to the cycle-grid model.
2. PRACTICES OF NORM VALIDATION: THE CYCLE-GRID

MODEL
This section introduces the three-dimensional cycle-grid model to examine stakeholder

access to norm validation. Notably, the model distinguishes three practices of norm
validation: first, formal validation (at the stage of norm implementation by heads of state
and representatives of government), second, social recognition through socially formed
groups of stakeholders, and third, cultural validation through individual stakeholders. It
highlights distinct sites where stakeholders meet in inter-national encounters (the underly-
ing grid); and it differentiates access conditions based on three distinct practices of norm
validation (the overlaid spinning cycle). The sites and the practices are linked by their
reference to stages of norm implementation, scales of governance/society and practices
of norm validation. Norm implementation is presented here as a process in which both
power and justice matter, and with conflict seen as an opportunity. Dissensus about uni-
versal validity claims is therefore considered as desirable, to a certain degree; for validity
claims obtain legitimacy precisely through public dissensus.54 Studying contestation thus
seeks to identify the means for filling the gap between the everyday cultural practices.
This is achieved by taking account of particular expectations of individual stakeholders
on the one hand, and of universal validity claims entailed in formally stipulated funda-
mental norms, on the other. The cycle thereby effectively connects governance levels with
philosophical claims for legality, legitimacy, and justice.55
By focusing on a modicum of normative sustainability, the cycle-grid model seeks
to take account of stakeholders’ contestation(s) of norms, as well as implementing the
normative objective of establishing the potential access to the three distinct practices of
norm validation for all involved stakeholder’s. And by focusing on three practices of norm
validation, it allows for identifying access points for establishing access to contestation
for affected stakeholders. In sum, the cycle-grid model offers a frame to explore the two
questions raised in section 1: first, targeting the empirical location of norm clashes in
specific sites, and second, evaluating the gap between universal and particular validity
claims and the potential to fill that gap by organising principles at the meso-scale of global
governance/society. The latter is achieved by evaluating stakeholder access to the practices
of norm validation, as shown by the arrow indicating a spinning cycle. With increasing
53
See: Weldes, Jutta and Diana Saco 1996. ‘Making State Action Possible: The United States
and the Discursive Construction of “The Cuban Problem”’. 1960–1994, Millennium: Journal
of International Studies 25(2) pp.361–95; Milliken, Jennifer 1999. ‘The Study of Discourse in
International Relations: A Critique of Research and Methods’. European Journal of International
Relations. 5(2) pp.225–54; Taylor. 1993; Coulthard. 2004.
54
Brunnée and Toope. 2011; see Forst’s ‘right to justification’ Forst. 2010.
55
See Brunnée and Toope. 2011; Tully. 2002.
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Time Stage of Norm Stage 1: Stage 2: Stage 3:

Implementation Constituting Negotiating Implementing
Place
Scale of Global Order
Site 1 Site 2 Site 3
Macro Formal
F
Fo rmal Validation
V lid
Va idatio
i n
Site 4 Site 5 Site 6

Meso
Social
S
So cia
i l Validation
Site 7 Site 8 Site

ite 9
Micro
Cultural Validation
Source: Wiener A. 2018. Contestation and Constitution of Norms in Global International Relations, p. 44.
Cambridge University Press. Reproduced with permission.
Figure 7.1 Cycle-grid model: sites of contestation and practices of validation
access to norm validation, affected stakeholders obtain the negotiating space that is
required in order to re-contextualise normative meaning (Figure 7.1 above).
The model frames the principled and contingent conditions for norm implementa-
tion. It follows the well-known assumption that while fundamental norms per se entail
universal validity claims, their translation into distinct contexts is inevitably linked with
interpretation on the ground. It therefore varies according to the range of particular valid-
ity claims that are brought to bear in inter-national encounters. To account for this varia-
tion, norms research has turned to the social environment in which norms are interpreted.
To that end, the concept of habitual validation, or social recognition, was introduced by
social constructivists in the 1990s.56 The cycle-grid model adds a third dimension to take
account of the impact of ‘everyday’ practices also defined as ‘background experience’ of
individual agents,57 defined as ‘cultural validation’.58
Achieving the highest degree of shared recognition, in theory, requires all three practices
of validation to be equally accessible to all stakeholders. Given the practicalities of
global governance and the conditions of societal differentiation, however, in practice,
the sites where norms are interpreted at the distinct stages of implementation are not
equally accessible to all relevant stakeholders. That is, for reasons of practicality, sectoral
necessity, and political organisation the standards of access will rarely achieve the highest
possible degree. This degree of access to contestation is achieved when a modicum of
56
See: Finnemore and Sikkink. 1998; March and Olsen. 1998.
57
Wenger E. 1998. Communities of Practice. Cambridge University Press.
58
Wiener. 2014.
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normative sustainability is reached, but following recognition theory, this modicum is

patterned through practice (compare Forst’s right to justification, Brunnée and Toope’s
social legitimacy, Tully’s mutual recognition). They are set by ‘organising principles’
(type 2 norms) that evolve through critical engagement with norms at the meso-scale.
Access to this proactive contestation depends on the site where the norm is addressed. It
is indicated by an agent’s validating practice with reference to the stage in the process of
norm implementation, and to place, expressed by the scale of governance/society.
The site is indicated through reference to the three main stages in the process of norm
implementation, on the one hand, and the three layers of societal order, on the other.
For example, on ‘site 1’ at the constituting stage at the macro layer of society agents have
access to all three practices of norm validation (formal, social, and cultural). By contrast
an agent operating on ‘site 9’ at the implementation stage of the norm implementation
process at the micro layer of society is most likely to only have access to cultural valida-
tion (compare Figure 7.1, taking account of the spinning arrow function). Illustrative
examples: contestation in inter-national encounters in the sector of fisheries governance
(objecting to the rule of law and the norm of sustainability in the North West Atlantic
Ocean including the objecting stakeholders of Canada, Spain, the EU); or contestation
with regard to constitutional culture (objecting to the rule of law in the European Union
including the objecting stakeholders of the Polish governing party PiS, the Hungarian
Government, the European Commission, the Venice Commission, Polish Civil Society
actors); or development governance spanning the UN’s global north and south (objecting
stakeholders include governments of target countries).
Norm Validation
The concept of norm validation indicates the potential degree of norm-ownership.59 Different
from the IR literature which focuses on two validation practices, i.e., formal validation and
social recognition only, I distinguish three such practices, i.e., formal validation, habitual
validation (aka social recognition) and in addition cultural validation as a third practice that
draws on individual everyday experience.60 In the context of international relations, formal
validation is expected in negotiations involving committee members of international organi-
sations, negotiating groups, ad-hoc committees or similar bodies consisting of high-level rep-
resentatives of states and/or governments, and entails validity claims with regard to formal
documents, treaties, conventions or agreements. Social recognition is practiced habitually
and therefore depends on the context of social groups. Social recognition entails validity
claims that are constituted through interaction within a social environment. The higher the
level of integration among the group, the more likely social recognition of norms will be
uncontested. Different from formal validation where validity claims are explicitly negotiated,
social recognition reflects mediated access to validity claims qua prior social interaction
within a group. Cultural validation is an expression of individual expectation mediated
59
On norm ‘ownership’ see Park, Susan and Antje Vetterlein. 2010. Owning Development:
Creating Global Policy Norms in the IMF and the World Bank. Cambridge: Cambridge University
Press.
60
Tully. 1995; Wiener. 2008; Wiener. 2017a; Wiener. 2017b.
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by individually held background experience. Importantly, the qualifier ‘cultural’ is used

to distinguish individual from group practices. It refers to background experience derived
through everyday practice and as such carries a thin rather than a thick meaning of culture.61
At each of the nine sites which underly the cycle, agents find themselves in a contingent
context that enables or constraints distinct options of access to the three practices of
norm validation: formal validation, social recognition, and cultural validation. While
in the best-case scenario agents enjoy access to all three practices, in most cases, this
access is likely to be available to only a selected few. The wider the agent’s access to
contestation, the higher their potential for agency and, therewith, ‘power’. The grid in
Figure 7.1 demonstrates the combination of sites where practices of norm validation
are possible. The arrow on the cycle indicates the normative condition for the best-case
scenario, namely that each of the three practices of norm validation, becomes available
for stakeholders who are affected by a norm (or, for that matter, breaches of a norm). The
arrow reveals where and when reactive contestation stands to be expected in the process
of norm implementation, and points to where the conditions for proactive contestation
might be best established. The following section recalls the core conceptual details and
then illustrates the application of the cycle-grid model with reference to situations where
norms stand contested in inter-national encounters.
3. ILLUSTRATIVE CASE SCENARIOS
A Typology of Norms
The early norms literature in IR defined norms predominantly from a sociological stance as
standardised rules of behaviour that are recognised by members of a group or community
with a given identity.62 The current IR literature takes a more all-encompassing approach
that defines norms ‘as ideas of varying degrees of abstraction and specification with respect
to fundamental values, organising principles or standardised procedures’.63 When norms
no longer ‘resonate across many states and global actors’ and ‘official policies, laws, trea-
ties and agreements’ are no longer constitutive for the stabilising effect of norms (ibid.), a
normative crisis is likely. While sociological research on norms was especially interested in
the impact of ‘social facts’ such as the recognition of liberal rights in ‘high’ politics such as
foreign policy,64 current crises suggest that if anything, liberal norms can no longer be taken
for granted, whether sustained by international or constitutional treaty regimes.
In light of an increase in normative crisis, it is important to engage knowledge about
norms from law and the social sciences alike. It is time for norms research to shift focus
61
Wiener. 2014. Ch. 9.
62
Katzenstein P. 1996. ed. The Culture of National Security. Columbia University Press.
63
See: Krook, M.L. and J. True. 2012. ‘Rethinking the Life Cycles of International Norms: The
United Nations and the Global Promotion of Gender Equality’. European Journal of International
Relations 18(1) p.113; Wiener, Antje. 2009. ‘Enacting meaning-in-use: qualitative research on
norms and international relations’. Review of International Studies 35(1) (January) pp.175–93 at
183ff.
64
Finnemore and Sikkink. 1998.
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from asking why norms are followed by states despite the absence of ‘government’, to
asking how to establish and maintain reasonable compromise despite diverse cultural
background experience. To pursue this goal, it is most important that IR theorists and
international legal scholars find a common language to address norms.65 The types of
norms that matter to the field of norms research can be distinguished according to the rel-
evance they have for the agents dealing with them,66 suggesting a broad distinction between
meta-norms that work at a higher level of morality and abstraction, and those ordinary
or policy norms that are located closer to the policy process on a time scale.67 In addition
to Müller’s distinction between ‘meta-norms’ and ‘ordinary norms’ in Table 7.1 below I
distinguish three norm types that can be identified based on the scale of their respective
moral reach (wide, medium, narrow), and the level of governance and/or the societal layer
(macro, meso, micro), and show the expected degree of contestation of a norm.
Notably fundamental norms are most likely to be negotiated at the macro-layer of
global society by representatives of government (type 1 norms). In turn, organising
principles are constituted through policy and political practice at the meso-layer (type 2
norms) and are less likely to be contested. Finally, designated norm-followers implement
standards and regulations such as firms or individuals at the micro-layer of global society
(type 3 norms). As the norms with the narrowest moral reach, they likely to be contested
substantively if not opposed or rejected completely.
All meta-norms are sustained by facilitating criteria or organising principles that
are negotiated based on stakeholders’ access to sites of negotiation. These sites are
allocated on the meso-layer of the global societal order,68 including, for instance, climate
governance, security governance and oceans governance. In each of these sectors the
interplay between socially constructed or legally constituted type 1 norms generates
clashes among stakeholders and the interactive generation of type 2 norms. This then
reflects and takes account of the diverse socio-cultural conditions in the respective
contexts of norm contestation, revealing the constraints and opportunities of normative
agency (compare Table 7.1). Effectively, mapping contestations of universal validity
claims of a norm, such as e.g. the rule of law, in one of the nine sites (Figure 7.1) reveals
a ‘normative grid’ that takes account of the shared normative substance with regard to
a selected fundamental norm.69 The grid provides detailed data about stakeholder access
to norm validation, derived from reconstructive discourse analysis, taking into account
65
Sandholtz, Wayne and Kendall Stiles. 2009. International Norms and Cycles of Change.
Oxford: Oxford University Press.
66
Wiener. 2008. p.66.
67
See: Müller, Harald. 2013. ‘Conclusion. Agency is Central’. In Norm Dynamics in Multilateral
Arms Control – Interests, Conflicts, and Justice. Studies in Security and International Affairs. edited
by Harald Müller and Carmen Wunderlich, Athens: University of Georgia Press. Ch 5; Park and
Vetterlein. 2010; Sandholtz and Stiles. 2009.
68
Wiener, Antje. 2007. ‘The Dual Quality of Norms and Governance beyond the State:
Sociological and Normative Approaches to “Interaction”’. Critical Review of International Social
and Political Philosophy, 10(1) pp.47–69; Wiener. 2014; Wallaschek, Stefan 2016. Solidarity in the
making, but how and where? Contested norms in times of crisis. Norms and Practice at a Critical
Juncture. Hamburg, 17.11.2016.
69
Walker, Neil. 2008. ‘Beyond boundary disputes and basic grids: Mapping the global disorder
of normative orders’. International Journal of Constitutional Law. 6(3–4) (July) pp.373–96; Hofius,
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Table 7.1 Norm typology70
Norm Examples: Prototype Examples: Case Scale Moral Reactive Proactive

Type Scenarios Reach Contesta- Contesta-
tion tion
Fundamental Core Constitutional Fundamental Rights of Macro Wide Low High
Type 1 Norms: Rule of Law, Individuals, Legality,
Democracy, Human Torture Prohibition,
Rights, Citizenship Culture of Impunity,
Thick Taken-for- Sexual Violence
Granted Norms: Prohibition,
Sustainability Universal
Jurisdiction
Organizing Practice-Based ‘Solange’ Principle; Meso Medium Medium Medium
Principle Norms: Common Right to Fair
Type 2 but Differentiated Trial; Office of the
Responsibility; Ombudsperson;
Responsibility to ‘Security matters’
Protect (R2P); Rule Approach,
of law mechanism ‘Documentation of
(EU); Total details’ Approach
Allowable Catch
Annual Percentage
Allocation
Standardized Fixed Regulatory International Law Micro Narrow High Low
Procedures, Standards: Procedure,
Regulations CO2 Emission Smart Sanctions,
Type 3 Standards; Blacklisting, Web-
R2P Pillars; listing, Torture
Electoral rules; standards
Rule of Law
Mechanism
Source: Adapted from Wiener A. 2018. Contestation and Constitution of Norms in Global International
Relations, p. 62. Cambridge University Press. Reproduced with permission.
stakeholders’ respective claims which are uttered throughout a conflictive encounter

(reactive contestation). 70
Such an analysis demonstrates conditions of uneven power balance: norm ownership

changes according to access to multiple practices of norm validation. It then becomes
possible, in a second (normative) step, to address the policies that are required in order to
enhance stakeholder access to processes of contestation. The theoretically devised modi-
cum of sustainable normativity is further recommended as the yardstick for developing
Maren. 2015. ‘Constituting community, practicing boundaries. European Union diplomacy in

Ukraine’ (Doctoral Dissertation). University of Hamburg, Hamburg, Germany.
70
I thank Andrea Liese and Georg Nolte for important comments on the norm typology which
were offered following the presentation “International Law and International Relations: Divided
by a Common Language” at the Kolleg-Forschergruppe “Rule of Law”, Free University of Berlin,
9th April 2018.
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joint organising principles (type 2 norms) at the meso-scale. In sum, the cycle-grid model
connects primary data (empirical research on ‘normative grids’) and secondary sources
(normative theory on fundamental norms).
Instances of Contestation
Instances of contestation offer an opportunity to map expectations vis-à-vis the rule of

law from the perspective of diverse stakeholders. Considering the space limitations, this
chapter does not discuss detailed empirical case studies. Instead it demonstrates how to
apply a methodological framework for studying norm contestation which is based on
a bottom-up perspective that centres on stakeholder participation in negotiating and
interpreting inter-national norms. The framework has been developed as an alternative to
models of norm diffusion through enhanced robustness, for it focuses on norm contestation
as a means to enhance norm recognition. This framework centres on the crucial effect of
local diversity, and proposes to overcome the mere transfer of meta-norms from macro- to
micro-layers of society through diffusion. To that end, it focuses on the generation of
shared norms through contestation at the meso-scale (compare Figure 7.1, Table 7.1) and
seeks to facilitate stakeholder participation in negotiations about norms ‘all the way up’.
This bottom-up perspective allows for distinct practices of norm validation, and
considers stakeholders of culturally diverse origin. The cycle-grid model offers a frame-
work to identify conditions for stakeholder participation and norm robustness through
contestation in a double sense of the practice: on the one hand, contestations indicate
potentially conflictive interpretations of norms on behalf of diverse stakeholders, on the
other hand, however, contestation is presented as a means that enables input through
critique on behalf of the involved stakeholders. Both practices matter to the potential role
of the rule of law in inter-national relations.
Following the objective to establish and enhance the degree of mutual recognition,
the remainder of this section turns to instances where norms clash based on diverging
stakeholder expectations, because these encounters offer evidence of stakeholder access
to practices of norm validation. By identifying which practices of norm validation are
accessible to stakeholders, it becomes possible to explain processes of normative aliena-
tion that are due to the de-contextualisation of normative meaning which is inevitable in
Table 7.2 Research design: Norm contestation and constitution
Goal Enhance Access to Contestation for Involved Stakeholders

Research Focus Empirical Normative
Bifocal
Leading Questions Where are norms contested? How to enhance access to contestation?
Who are the stakeholders? Who ought to have access?
Illustrative Cases Norm conflict and crises
Expected Outcomes Identify particular validity claims Define pathways to participation
Bifocal Normative grids Modicum of sustainable normativity
(‘is’) (‘ought’)
Source: Author’s Stipulated Research Design.
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processes of norm diffusion. As universal validity claims of norms which have originally
been agreed by heads of state and government representatives at the treaty-making stage
(i.e., applying the practice of formal validation) are diffused to particular contexts of
norm implementation, their contingent meaning gains in importance. The result is a
growing diversity of context dependent meaning. Accordingly, the ‘normative structure
of meaning-in-use’ in which a norm is embedded and re-enacted by interacting agents,
differs according to the degree of fit encountered in distinct local contexts.71 It follows
that the universal validity claims of a norm, including the meta-norm of the rule of law,
lose clout and meaning through inter-national travel.72
Zooming In: Contestation (and Constitution) In Situ
To identify options for establishing compromise with regard to the rule of law, the follow-
ing ‘zooms in’ on scenarios where interpretations of norms clash. Studying these conflicts
in situ73 helps to understand long-term culturally forged meanings that individuals or
groups of stakeholders carry as normative baggage. As everyday experience, this norma-
tive baggage informs micro-practices of engagement about fundamental law and provides
important background information to help explain reactive contestation. Scenarios where
core constitutional norms are contested include the much-debated ‘rule of law crisis’ in
Poland, Hungary, Turkey, and Romania, as well as the more recent and trending crisis in
the US. Such crises are most likely in post-enlargement and post-conflict environments
which involve wide-ranging institutional and/or constitutional change with an effect on
government institutions, and the everyday practice of democratic government. Against
this background, the reactive contestations of fundamental norms in countries including
many former communist states that joined the EU as part of its massive enlargement
process in 2004 comes as little surprise. Reactive contestations of fundamental liberal
norms might also be expected where novel administrations follow regime change in former
‘rogue’ or ‘failed’ states; for example, Iraq, Afghanistan, or Egypt. Moments of reactive
contestation reveal the irregular and at times evocative effects of norm diffusion. The
following scenarios show why focusing on norm robustness may turn out as a misjudged
research strategy, especially in situations where issues with norm implementation are
situated along the cultural dimension of a norm.
Conflict among a diversity of distinct stakeholders offers opportunities to enhance
legitimacy and justice in global governance. Whether the opportunity comes to frui-
tion depends on turning objection to a norm (i.e., reactive contestation) into critical
engagement with a norm (i.e., pro-active contestation). The successful turn-around
depends on facilitative policy mechanisms or institutions. Thus, in order to achieve this,
norms research needs to examine inter-national encounters at the meso-scale of global
society, where a diversity of stakeholders negotiates conditions of norm implementation.
Diverse stakeholders’ respective perceptions of the rule of law come to the fore through
71
See: Milliken. 1999; Acharya. 2004.
72
Puetter and Wiener. 2009.
73
For the research technique of method of ‘zooming in’ to study micro-practices in situ, see
Bueger and Gadinger. 2014.
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c ontestation, and these are most likely to occur in inter-national encounters. Post-conflict
and post-enlargement scenarios are particularly illustrative: in both contexts, local or
national stakeholders are approached by global or regional actors who seek to enforce
norms that had been agreed at the macro-level of governance through treaty-making or
similar formal agreements. Zooming in on these scenarios offers a first step towards filling
the gap between universal and particular validity claims.
In the following illustrative scenarios two instances of norm contestation represent in
situ challenges to the taken-for-grantedness of universal validity claims and their effects
‘all the way down’. By revealing long-term cultural issues, they raise a more fundamental
question about the instruments and mechanisms of norm enforcement. In each scenario,
the affected stakeholders voice reactive contestation to demonstrate their objection to
norms.
Fisheries Governance
When in 1995 Canadian fishing vessels encountered Spanish trawlers fishing for turbot
near the 200 Economic Exclusive Zone (EEZ) on the Great Banks off the coast of
Newfoundland, they objected to the action.74 Given that they had requested the Spaniards
refrain from fishing just outside the EEZ, this prompted a warlike situation including
acts of aggression on behalf of the Canadians and the Spaniards, including the Canadian
coast-guard and the navy as well as fishing boats, following this first inter-national encoun-
ter on the high seas.75 Lawyers on both sides, and from the various levels of global govern-
ance, became involved including Canadians, Spanish and European Union stakeholders.
These are the norm-types that come into play in global fisheries governance.
A discursive reconstruction of the arguments made in the process revealed that the
Canadian stakeholders largely objected to the Spanish trawler’s activity with reference to
the principle of sustainable fisheries (type 1 norm). In turn, EU representatives made the
Spanish case with reference to the rule of law (type 1 norm). This claim was sustained by
background experience on either side: the Canadians had faced a zero quota (type 3 norm)
on cod fishing in the early 1990s in order to support sustainable growth of fish-stock (type 1
norm) off their Atlantic coast. The Spaniards felt they had been losing out through Spanish
EU accession and were claiming their right to fish the quota (type 3 norm) on turbot that
had been assigned to them. These contestations brought the three practices of norm valida-
tion to the fore as follows.76 The case was settled following proactive engagement about
the ground rules under which the TAC was to be implemented. The result consisted in the
mutual recognition of the fact that quotas on TAC were required in order to maintain
sustainable fisheries under the rule of law, yet the quotas required regular adaptation of
percentages, pending on the annually changing fish-stock conditions (type 2 norm). Table
7.2 opposite illustrates the different relevance the norms of fisheries governance had for
74
This account is a summary of a more detailed case study of the turbot war in Wiener. 2016.
References are therefore exclusively made to that case study article, and not to the primary and
secondary data used therein.
75
The encounter did indeed take place on the water qualified as the ‘high seas’ and therefore
under international jurisdiction rather than Canadian sovereignty.
76
Wiener. 2016. p.31.
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Table 7.3 From reactive to proactive contestation
Contestation Stakeholders Canadian Type of Spanish Type of

Norm Norm
Reactive Formal Sustainable 1 Rule of Law, i.e., 1
Reference Fisheries Right to Fish
Mesh-size 3 (UNCLOS) 3
Exclusive Economic
Zone
Background Zero quota on 3 EU Accession 3
Experience Cod process general
Geographic quota adaptation
detail of
seabed
Proactive Conflict Precautionary Principle 2
Outcome Agreement on TAC (total allowable catch) with 2
annual settlement of percentages
Source: Author.
the involved stakeholders at the time of their encounter on the high seas. Importantly, the
process of the scaling down from a war-like inter-national conflict on the high seas towards
mutual engagement of stakeholders in numerous discursive encounters in the context (or,
indeed at the fringes) of international and regional organisations led to an agreement about
the precautionary principle and the related adjustment of the TAC on an annual basis (type
2 norm) as a shared ground rule in North Atlantic Fisheries.
Constitutional Governance in the EU
The Treaty of European Union (TEU) stipulates both compliance with the rule of law
as a condition for membership in Article 2 and mechanisms that allow for political
scrutiny of member state performance regarding the implementation of the EU’s
fundamental norms in Article 49. To confront member state departure from the rule of
law, the rule of law mechanism77 was proposed by the European Commission78 which
is also the political organ to initiate a ‘structured exchange’ with the member states in
breach with the TEU.
The process is based on the following principles: focusing on finding a solution through a dia-
logue with the Member State concerned; ensuring an objective and thorough assessment of the
situation at stake; respecting the principle of equal treatment of Member States; indicating swift
77
Communication from the Commission to the Council, Brussels, 19 March 2014, COM (2014)
158 final/2; for the document see: http://ec.europa.eu/justice/effective-justice/files/com_2014_158_
en.pdf.
78
Communication from the Commission to the Council, Brussels, 19 March 2014, COM(2014)
158 final/2; for the document see: http://ec.europa.eu/justice/effective-justice/files/com_2014_158_
en.pdf.
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and concrete actions which could be taken to address the systemic threat and to avoid the use of
Article 7 TEU mechanisms. The process is composed, generally, of three stages: a Commission
assessment, a Commission recommendation, and a follow-up to the recommendation.79
The recent rule of law crisis in Poland sheds light on these mechanisms and their effect,
and thereby raises a question about the legitimacy of the rule of law. When the Polish
Government objected to the rule of law insofar as they declared that their constitutional
court was no longer allowed to act as an independent body, the EU considered this a
break with the rule of law, as agreed by the signatories to the TEU.80 Subsequent to
the European Commission’s inquiry Poland received a public political warning form the
Venice Commission,81 founded in 1990 to promote the implementation of what it calls the
‘three ground principles of European constitutional heritage’: democracy, human rights
and the rule of law.82 The Commission offers legal opinions upon request by member
states, the Council of Europe’s institutional bodies, or international organisations such as
the OSCE or the EU. In its Report on Poland, adopted on the 11 March 2016,83 the Venice
Commission critically objected to the fact that Poland’s recent constitutional changes do
not comply with the norm that ‘(I)t is the Constituent Power, not the ordinary legislator,
which entrusts the Constitutional Tribunal with the competence to ensure the supremacy
of the Constitution.’84
Given that Poland is a party to the TEU as well as to the Venice Commission, this effec-
tive objection to a norm which had been formally validated by the government, invites an
account of in situ contestations by involved stakeholders, in order to reveal the rationale
for the objection and potential solutions. In the European post-enlargement scenario,
this rule of law crisis illustrates well how to apply the cycle-grid model as a means to
account for, acknowledge and accommodate particular validity claims of stakeholders. By
applying the model, it becomes possible to assess the gap (at the meso-level) between the
universal validity claims of the rule of law that are stipulated by the TEU (at the macro-
level) with reference to the objections to the rule of law in Poland (at the micro-level) of
79
Ibid. p.7; The mechanism was first triggered when the European Commission ‘opened
an unprecedented inquiry into whether new Polish laws break EU democracy rules’ on 13
January 2016. BBC News, 13 January 2016: Vice-President Frans Timmermans announced a
‘preliminary assessment’ under the EU’s ‘rule of law mechanism‘, see: http://www.bbc.com/news/
world-europe-35303912.
80
According to Frans Timmermans, vice-president of the European Commission: ‘(T)he
binding rulings of the constitutional tribunal [Poland’s highest legislative court] are currently not
respected, which I believe is a serious matter in any rule of law-dominated state.’ See The Guardian,
13 January 2016 www.theguardian.com/world/2016/jan/13/ec-to-investigate-polish-governments
-controversial-new-laws.
81
Which found: ‘(N)ot only is the rule of law in danger, but so are democracy and human
rights.’ See The Guardian, 11 March 2016 www.theguardian.com/commentisfree/2016/mar/11/
rule-of-law-poland-communism-democracy-europe. I thank Maren Hofius for discussions on the
constitutional crisis in Poland at the Chair of Political Science Especially Global Governance of
the University of Hamburg.
82
Notably, the Commission seeks to promote ‘democracy through law’. See Venice Commission
at: www.venice.coe.int/WebForms/pages/?p=01_Presentation&lang=EN; emphasis added by author.
83
CDL-AD (2016)001 Opinion no. 833/2015, http://www.venice.coe.int/webforms/documents/?
pdf=CDL-AD(2016)001-e.
84
Venice Commission: Report on Poland, Ibid. p.7.
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Table 7.4 From reactive to proactive contestation
Contestation Stakeholders EU Type of Polish Type of

Norm Norm
Formal Rule of Law provisions 1 Rule of Law 1
Reference TEU Polish
Reactive Provisions as
well as TEU
Background Constitutive role in 1 EU Accession 3
Experience constitutional process
process compliance
pre-enlargement with
Copenhagen
criteria
Proactive Conflict Framework Mechanism, Structured Dialogue 2
References monitored by European Commission 2
Opinion, Rule of Law Report, Venice Commission
Source: Author.
governance. The situation in Poland means that their constitutional court’s independence
is undermined and that therefore the balance of power no longer corresponds with the
rule of law as stipulated in the EU Treaty. As Guy Verhofstadt noted: ‘Two EU members
in particular; Hungary and Poland, are now jeopardising hard-won European democratic
norms and thus undermining the very purpose of European integration.’85 Notably,
Verhofstadt’s reference to norms suggests that the norms were both ‘European’ and ‘hard
won’. In doing so he conjures up two claims which remain to be proven by empirical
research to justify the intervention in Poland and establish its legitimacy vis-à-vis all
involved Polish stakeholders. He asserts that all Europeans were equally involved in
the struggle for recognition of the universal validity claim of the rule of law. However,
this was not the case insofar, as the then ‘old member’ states discussed the terms of the
‘constitution’ (now the Lisbon Treaty) without including the then ‘candidate countries’
on equal terms (compare Table 7.4).
While the EU’s introduction of a rule of law mechanism indicates awareness of consti-
tutional issues and political crises, the instrument stands contested by its addressees. This
chapter’s claim about a norm’s growing recognition in relation to stakeholder involvement
at various stages of implementation suggests that the re-contextualisation of the rule of
law may not have been accomplished and therefore remains to be achieved. Therefore,
a key task is to identify the particular validity claims of the involved stakeholders and
map them on to the respective sites of resistance where stakeholders clash over norms. It
is here, where the interplay between the processes of diffusion by law on behalf of policy
85
Compare Guy Verhofstadt the President of the Alliance of Liberals and Democrats for
Europe Group (ALDE) in the European Parliament in a contribution to Social Europe: www.
socialeurope.eu/2016/04/europes-rule-law-crisis/.
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mechanisms that are established by EU institutions (the macro-scale) on the one hand,
and contestation of the same law by the member states as both signatories and addressees
of EU law (on the micro-scale), on the other, comes to the fore. The top-down approach
adopted by the EU and the VC needs to be aware of the risk of erasing socio-cultural
remnants of the validity claims that have been forged through the interplay between
regular and cultural practices over time in local environments, and that are likely to
work against those locally constructed narratives of constitutional law. According to
Frankenberg, these odd details operate ‘as subversive elements that evade the reach and
rules of the global grammar of constitutionalism and introduce a local accent informed
by a particular national history, religion, or tradition, or by specific political experiences,
power constellations, and, more often than not, unresolved conflicts’.86 Research prior-
itising diversity would focus on accounting for ‘odd details’, assign them to stakeholders
based on discourse analysis and then probe the legitimate normative quality of a norm by
identifying access to practices of norm validation. Who has access to which of the three
types of validating practices?
CONCLUSION
The chapter presented and applied the cycle-grid model as a frame to address the
gap between formally constituted agreements about a fundamental norm’s universal
validity claims, on the one hand, and their contested implementation when particular
validity claims on the ground are activated, on the other. It sheds light on the question
under which conditions norm contestation is likely to increase or decline? The model
allows for establishing, first, the type of norm and second, the access conditions to the
validation practices of a specific norm. Thus it is possible, for example to demonstrate
how the precautionary principle and the agreement about annual discussion of TAC in
fisheries were established as shared ground rules (type 2 norms) as the first case scenario
demonstrates; and it becomes possible to establish whether or not the EU’s new rule of
law framework mechanism is actually regarded as an organising principle (i.e. a type 2
norm) that is shared by a group of stakeholders beyond the group that formally devised
the norm, as presented by the second case scenario. By zooming in on specific instances
of contestation in order to reconstruct contestations of the norm in conjunction with the
effect of the rule of law instrument, the model has probed the extent to which dialogue
and negotiation forums ensure access to contestation for stakeholders. This analysis
suggests that the growing alienation between particular and universal validity claims of
fundamental norms means an increasing number of stakeholders with distinct everyday
experiences hold diverse claims with regard to fundamental norms.
Such scenarios of norm conflict are most likely to be encountered in post-enlargement
(as illustrated by section 3 of this chapter) or in post-conflict contexts that involve the
change of government institutions, practices, and norms (as targeted for instance by UN
86
See: Frankenberg. 2010; Uitz, Renáta. 2015. ‘Can You Tell When an Illiberal Democracy is in
the Making? An Appeal to Comparative Constitutional Scholarship from Hungary’. International
Journal of Constitutional Law 13(1) pp. 279–300.
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policies on development and justice). They occur in the aftermath of massive organisa-
tional enlargement or novel administrations following regime change in former ‘rogue’
or ‘failed’ states. These scenarios clearly illustrate the irregular and at times evocative
effects of norm diffusion through globalisation. In these contexts, instances of norm
contestation represent in situ challenges to assumptions about any taken-for-grantedness
of how universal validity claims work ‘all the way down’, thereby raising a more funda-
mental question about the instruments and mechanisms of norm enforcement. With the
cycle-grid model it becomes possible to examine constraints and opportunities for access
to contestation for stakeholders (i.e., as reactive objection and critical engagement with
norms). The model connects both, the process of norm contestation despite the global dif-
fusion of the rule of law (i.e., through international treaty law, international organisations,
and national constitutional law) and the normative potential to facilitate diffusion through
contestation (i.e., through enhanced access to contestation for involved stakeholders).
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M4581 - MAY_9781786432438_t.indd 132 01/08/2018 14:47
PART II
THE HISTORY OF THE RULE

OF LAW
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8. The rule of law: An outline of its historical
foundations
Pietro Costa
What is the meaning of the term ‘rule of law’? What is the historical construction of
this concept? Understandably, the two questions are connected but first we must define
the precise parameters of a phenomenon to develop a narrative of its genesis. It is then
necessary to stipulate a definition of the rule of law and adopt it as a guideline for our
historiographical survey. Towards this end we can resort to the clear definition provided
by the Oxford English Dictionary, according to which the rule of law coincides with; ‘the
principle whereby all members of a society (including those in government) are considered
equally subject to publicly disclosed legal codes and processes’. The core of this notion
is that the holders of the political power are subjected to rules that equally apply to them
and to the citizen.
The rule of law, in the most general sense, refers to a power subjected to the law. This
principle has frequently had not only a descriptive, but also a prescriptive meaning. It
has been used not only to describe a specific arrangement of political institutions, but
also to formulate an ideal goal: that the sovereign governs the subjects according to
fixed and previously known rules, which are mandatory for the sovereign himself to
follow.
The meaning of the rule of law is established in a contrast: being a government accord-
ing to the law, of a power subjected to the law, drawing strength from its opposite, the
idea of an arbitrary and absolute sovereign, exempt from the rules because it is superior
to them. The semantic analysis of the rule of law is thus structured around binary
opposites: rules vs. arbitrariness; limited power vs. absolute power.
Given that this is the core of the rule of law, in its more general meaning, a further
question involves the problem of its function. Is the function of the rule of law a
necessary component of its definition? If we adopt a ‘formal’ definition of the rule of
law, the aims we can pursue and the advantages we can obtain by adopting a form of
government limited by rules are not relevant to our purpose. In this perspective, the
necessary and sufficient condition of the rule of law includes a government that acts
in compliance with predetermined legal norms. The contents of the norms and the
goals of the governments do not come into consideration. The rule of law only refers
to the ‘formal’ or ‘thin’ correspondence between the governmental decisions and the
pre-existent legal frame. In contrast, from a ‘substantial’ or ‘thick’ point of view, the
function of the rule of law is an essential element of its definition. A further component
of the semantic field emerges: the need of the subjects to be protected from any arbitrary
harassment by the sovereign.1
1
Craig, Paul P. (1995), ‘Formal and substantive conceptions of the rule of law’, Diritto
pubblico, 8, 35–55.
135
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Whatever the theoretical validity of a ‘structural’ or a ‘functional’ definition of the rule

of law may be, the ‘substantial’ approach seems the best suited to our purpose. From a
historical point of view, the notion of rule of law seems scarcely separate from the interests
and expectations of its subjects. The social and political conflicts, which in several histori-
cal contexts have been triggered by the attempt to force the government to submit to the
law, would be unintelligible without considering the advantages that its subjects (rightly
or wrongly) can expect to obtain through the rule of law.
According to a ‘substantive’ approach, the notion of the rule of law is defined by three
elements: rules; power; and subjects. In this perspective, the expected advantages of the
subjects can be conceived not as a generic and unspecified ‘protection’ from power, but as
an extensive set of rights. The semantic field of the rule of law is thus also defined by the
intersection of three lines: rules, power, and rights.
This intersection is only apparently simple but it gives rise to the formation of very dif-
ferent geometric figures. Metaphors aside, the idea (and the corresponding practices) of
the rule of law are the result of a long historical process. The implementation of this pro-
cess can be (tentatively and roughly) divided into three phases: the most recent phase – the
nineteenth and twentieth centuries – when the rule of law seems to be thoroughly defined
and realized; the previous phase – set in the seventeenth and eighteenth centuries – when
the relationship between the sovereign and the subjects undergoes a dramatic change and
requires a thorough renovation of its forms and its contents; and an earlier phase (from
Antiquity to the Middle Ages), when several seminal issues of Western culture emerge,
which will affect the modern conceptualization of the rule of law, even though they will
not directly determine its contents.
While the rule of law reaches full maturity during the nineteenth and twentieth centu-
ries, its origins must be placed in the two previous (abovementioned) phases. Therefore,
sketching an outline of the historical foundation of the rule of law requires unearthing
what we could call the early and the near roots of this concept.
THE EARLY ROOTS OF THE RULE OF LAW: ISSUES OF

ANCIENT AND MEDIEVAL CULTURE
What is the best way of governing the subjects and what relationship must be established
between the political power and the law are problems that have been carefully examined
in Plato’s and Aristotle’s seminal reflections, often considered the very point of origin
of Western political culture. According to Plato, the best regime does not require the
primacy of the law, but relies on the excellence of the ruler, on his superior wisdom. On
the contrary, when power is not committed to philosopher kings, to wise men capable
of governing according to reason, the regime, whatever its constitutional form, tends to
degenerate until its final breakdown and the resulting anarchy.
Plato himself is willing, however, to consider the distance between the concrete political
experience and the ideal republic, and to grant that the law acquires a decisive importance
in the ‘real’ world, where philosophers do not govern. In this case, it is the primacy of the
law which precludes political regimes (both monarchy and democracy) from resulting in
conflict and tyranny. In one of his late works, The Statesman, Plato introduces a distinc-
tion that will obtain a lasting success: the distinction between the government of law and
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The rule of law: An outline of its historical foundations 137
the government of men. In the absence of philosophers in command, the best regime is
the former, when the law is the master of the government, and not vice versa.2
Aristotle too, like Plato, concedes that a ruler endowed with extraordinary virtue could
govern in the most excellent way, but subjoins that such a hypothesis never occurs. In the
real world, the primacy of the law is precisely the decisive mark of the good quality of
a regime, inasmuch as it ensures the possibility of being governed according not to the
whimsical decisions of men, but to fixed and objective rules.3
In Western culture, the need to exalt the supremacy of the law over power was preco-
ciously underlined because power was conceived as capable of deeply affecting the lives
of the subjects. In particular, the critics of democracy, starting from Plato, warned to
beware of the power of the demos, the power of the people, and to rely on the law as the
only defence against the danger of its ‘despotic’ rule. Thus, a shibboleth of major Greek
philosophers was the exhortation to restrain power and realize a tempered and balanced
regime.
This key idea, already sketched in the doctrines of Plato and Aristotle, was received,
and further developed, in the Roman republic. According to Polybius (the great historian
of Rome) and Cicero, the secret of the increasing Roman power was a peculiar regime
that they called the ‘mixed regime’: a regime distinguished by the joint presence of
monarchical, aristocratic, and democratic elements, inasmuch as it was composed of
different institutions capable of representing the expectations of the many and the few,
of the people and the aristocracy.4
The idea of the ‘mixed government’ would enjoy lasting success in medieval and proto-
modern Europe, but it would not be the only legacy that the Roman world was able to
transfer to later cultures. In fact, in Rome, after the decline of the republican regime and
the arrival of the empire, the theory of the mixed government gave way to the idea of
the unlimited, absolute, and divine power of one ruler, the emperor. This doctrine was
eventually expounded and laid out in Justinian’s Corpus Juris and thereby reached the
medieval culture.
For medieval philosophers and jurists, ancient culture, though known only fragmen-
tarily, was an essential point of reference. Starting from the eleventh and twelfth centuries,
the Corpus Juris and many of Aristotle’s works (his treatise on politics among them)
began to be thoroughly read and commented upon. Medieval legal doctrines developed
in the framework of the Corpus Juris and jurists found in it the principle of the absolute
sovereignty of the emperor. In the Corpus Juris, law was presented as the product of the
supreme will of the emperor: far from being a limit and a restraint on his power, law was
2
See: Isnardi Parente, Margherita (1996), Il pensiero politico di Platone, Roma-Bari: Laterza;
Fine, Gail (ed.) (2008), The Oxford Handbook of Plato, Oxford: Oxford University Press.
3
See: Berti, Enrico (1997), Il pensiero politico di Aristotele, Roma-Bari: Laterza; Pangle,
Thomas L. (2013), Aristotle’s Teaching in The Politics, Chicago: The University of Chicago
Press.
4
See: Nippel, Wilfried (1980), Mischverfassungstheorie und Verfassungsrealität in Antike und
früher Neuzeit, Stuttgart: Klett-Cotta; Blythe, James M. (1994), Ideal Government and the Mixed
Constitution in the Middle Ages, Princeton, Princeton University Press; Taranto, Domenico
(2006), La miktè politéia tra antico e moderno. Dal ‘quartum genus’ alla monarchia limitata,
Milano: Angeli; Cedroni, Lorella (2011), Democrazia in nuce: il governo misto da Platone a Bobbio,
Milano: Angeli.
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the very expression of it. The idea of sovereignty as an absolute will, exempt from any
control – an idea that modern culture would resume and develop – was rooted in this
ancient tradition. A voluntarist idea of law originates from it: ‘voluntas facit legem’ (the
will creates the law). The law is then a product of the will of the supreme authority. The
sovereign will is the matrix of the law.
Although this idea of sovereignty was floating around in the medieval commentaries to
the Corpus Juris, it would be ill-advised to infer that medieval legal doctrines underpinned
a voluntarist idea of law. Indeed, the medieval reception and interpretation of ancient
texts are a peculiar process, given the profound differences that divided the ancient from
the medieval world; medieval scholars read ancient texts from the perspective of their own
needs and cultural prejudices.
A widespread conviction during the Middle Ages was that social and political order was
something like a pyramid composed by differentiated social classes. It was a self-sufficient,
hierarchical structure and the sovereign, although placed at the top of the pyramid, was
nevertheless part of it. Society was not conceived as a reality freely arranged and trans-
formed by the arbitrary decisions of men, but rather as part of a natural and supernatural
order culminating in God. It was with this hierarchical and immutable framework that
law was intimately connected. Law was conceived as the external display of the right
organization of societal relationships itself.5 The Corpus Juris was read and interpreted
starting from these hermeneutical presuppositions. Though it had been created by the
absolute will of an emperor, Justinian, medieval jurists did not hesitate to conceive and
label it as ratio scripta, as the embodiment of reason.
In this perspective, the sovereign, still considered a mere component of the social and
political fabric, was bound by the rules that governed the political and social body. Rulers
are indispensable, but their power (even the power of the emperor) is subjected to a higher
law: not only to the divine law (as is obvious), but also to the just, rational, and immutable
framework of the society. This can be summed up in a sentence: law is ratio, reason, and
only secondarily voluntas, will, and the legislating act of the ruler must be restrained from
deviating from the tracks defined by ratio. Consequently, medieval law did not coincide
with the statutes of one monarch or another: their ‘acts of will’ were legitimate insofar as
they confirmed the unwritten law that presided over the social and political order.6
The voluntas of the ruler was subject to the law conceived as the intrinsic order of the
social and political body. The dependence of the voluntas on the ratio was indeed a neces-
sary condition of the legitimacy of the sovereign power. According to both theologians
and jurists (from John of Salisbury and Thomas Aquinas to Bartolo da Sassoferrato) a
whimsical and arbitrary exercise of power, inclined to violate the natural order of things,
perverts sovereignty, and changes it into tyranny. In that case, even the resistance of the
subjects can be justified.7
5
See: Kantorowicz, Ernst H. (1967), The King’s Two Bodies. A Study in Mediaeval Political
Theology, Princeton: Princeton University Press; Ullmann, Walter (1966), The Individual and
Society in the Middle Ages, Baltimore: Johns Hopkins University Press.
6
Pennington, Kenneth (1993), The Prince and the Law, 1200–1600: Sovereignty and Rights in
the Western Legal Tradition, Berkeley: University of California Press.
7
See: Quaglioni, Diego (1983), Politica e diritto nel Trecento italiano. Il De Tyranno di Bartolo
da Sassoferrato, Firenze: Olschki; Laarhoven, Jan van (1984), ‘Thou shalt not slay a Tyrant! The
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The idea that law is a set of norms largely independent from the will of a supreme
authority was coherent with the real arrangement of medieval society. First, customary
law was relevant and widespread; the kind of law that is essentially based on an immemo-
rial repetition of behaviours and not on the ‘decision’ of anyone. Secondly, medieval
society was a complicated network of largely interdependent powers. Even the higher
echelons of the political hierarchy, such as kings and emperors, were obliged to face the
fierce resistance and autonomy of minor powers and, in turn, established with them
relationships of cooperation or conflict. Feudal lords and rural communities, the cities
and the king or the emperor, the monarchs, and the feudal lords all fought each other in
order to defend or extend their libertates, their prerogatives and privileges, their space of
autonomy, and the frequent upshot of the conflict was a covenant. It was the covenant
that reflected the balance of the opposing forces, assigning to them advantages and
burdens respectively. Medieval political power, far from being an ‘absolute’ dominance,
relied on a compact, on the mutual acknowledgment of power holders placed at different
heights of the social and political pyramid.
Exactly because power depended on compacts, we can find numerous medieval docu-
ments, which sanctioned the outcome of a conflict, assigned privileges and burdens, and
fixed new rules. The Magna Carta (the result of a covenant made in 1215 between the king
and the rebel barons) is a famous example. Formally a grant by the king, substantially
it was an agreement among the leading actors of the conflict (the king, the barons, and
the Church) about several aspects of social life. Its content covered the spectrum from a
detailed exposition of minor rules to the protection of major liberties and rights.
Unlike other feudal charters, the Magna Carta has achieved a reputation that no other
medieval document can claim. The basis of its renown depends on an interpretative
tradition, which presents it as the point of departure of a process that seamlessly joins
the medieval with the modern rule of law. How plausible though is this interpretation?
It is advisable to avoid a peremptory answer. On one hand, we must beware of falling
into the trap of a Whiggish rhetoric and present the Magna Carta as the foundation of a
rule of law born in the feudal Middle Ages and endowed with all its essential attributes,
which reaches the modern democracies only superficially changed. On the other hand, we
can detect needs and issues that were already at work in ancient and medieval cultures, and
see in them what I have called the early roots of the modern rule of law.
We can look at the Magna Carta from two different points of view. If we place it in
its proper historical context, we must study it as a document of the so-called medieval
constitutionalism and cannot emphasize its differences from analogous medieval charters.
Things change if we look at it through the glass of its employment in later centuries: in
fact, it was in turbulent seventeenth-century England that the Magna Carta assumed
a new meaning, as it was as presented as the cornerstone of a constitutional fabric,
whose substantial innovativeness was legitimized (and disguised) as the restoration and
confirmation of the tradition.8
so-called Theory of John of Salisbury’, in Wilks, Michael (ed.), The World of John of Salisbury,
Oxford: Blackwell, pp. 319–41.
8
See: Holt, James C. (1992), Magna Carta, Cambridge: Cambridge University Press; Sandoz,
Ellis (ed.) (1993), The Roots of Liberty: Magna Charta, Ancient Constitution and the Anglo-
American Tradition of Rule of Law, Columbia-London: University of Missouri; Griffith-Jones,
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If we remain within the boundaries of the Middle Ages, the Magna Carta is a faithful
expression of medieval political doctrines and practices: the real power of monarchs and
emperors was weak and the effective control over the territories was based on compacts
between competing powers. The idea of an absolute power of the sovereign and the con-
sequent thesis of the law as a product of the sovereign were familiar to the commentators
of Corpus Iuris, but came to be overwhelmed by a widespread and prevailing cultural
framework, according to which law was not detachable from ratio, from the rational,
intrinsic order of things. The prevalent image of the king was consistent with this vision:
the image of the king as judge. The king was called not so much to create absent or
non-existent rules, but to judge according to a pre-existent and immutable law.
To summarize this issue in a synthetic formula we can employ the well-known term
of ‘medieval constitutionalism’. This expression makes sense if we intend to affirm that
medieval culture focused on the relationship between voluntas and ratio, sovereignty and
law, government of men or government of the law (if we adopt Plato’s suggestive distinc-
tion) and affirmed the primacy of the law and the subordination of ratio to voluntas. We
must, however, avoid overvaluing the substantive (constitutionalism) and undervaluing
the relevance of the adjective (medieval or modern). What is lacking to medieval culture
is precisely the sense of a dramatic tension between ratio and voluntas, sovereignty and
law: this relationship, which seemed plain and simple to medieval philosophers and jurists,
would assume the appearance of being a difficult conundrum in the modern age; and the
idea of the rule of law would be developed as only a tentative solution to it.9
THE NEAR ROOTS OF THE RULE OF LAW: THE STRUGGLE

AGAINST MONARCHICAL ABSOLUTISM IN ENGLAND
Different and independent sources of law; a complicated set of autonomous powers; an

idea of society as an immutable and hierarchical order in which the ruler is included as
one of its components: these are the main elements that define the semantic area of the
so-called medieval constitutionalism. We can refer to it so as to focus on some remote
premises of modern rule of law, but we must at the same time consider the relevant breaks
that separate the Middle Ages from the modern era.
One of these gaps (and one of the major markers of a slow and complicated ‘mod-
ernization’ process) is the increasing weight of the idea that the sovereign is the holder
of ‘potestas absoluta’, of a power free from restraint. Monarchs had an urgent need of
financial resources in order to carry on expensive and ‘technological’ wars, and wanted to
siphon off money from cities and subjects without being obliged to come to terms with
them. Gradually monarchs were less and less resigned to exerting a weak and mainly
symbolic power and began to launch institutions capable of ensuring a better control over
territories, in this way encountering the varying ferocity of their subjects’ resistance. A
Robin and Hill, Mark (eds) (2015), Magna Carta, Religion and the Rule of Law, Cambridge:
9
Tuori, Kaarlo (2011), Ratio and Voluntas: The Tension between Reason and Will in Law,
Farnham-Burlington: Ashgate.
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conflict took shape which involved the form of government and the constitution itself. A
peculiarly modern tension began to emerge, though in still embryonic forms: the tension
between an idea of sovereignty as an independent and irresistible will, and the tendency
to believe that individuals should enjoy an irrepressible autonomy. It is in the growing
tension between the sovereign and the subjects that we can situate the proximate roots of
the rule of law.
Some premise of this coming conflict can be perceived in sixteenth-century France.
The king’s efforts to take the control of the land into his own hands increased and a new
idea of sovereignty was outlined in the works of Jean Bodin. Thomas Smith – an English
jurist – was aware of this trend and disapproved of it in his De Republica Anglorum
(1583). In his opinion, the right form of government is a mixed government, shared by
the king and the ‘three estates of the common wealth’. Very soon however, in England
too, monarchs would try to reinforce their power, but the results of their efforts were
different than in France. While in France the representative bodies of the cities and of the
social classes gradually lost importance and finally ceased to be convened, in England the
hegemonic claims of the Stuarts collided with the dogged resistance of the representative
parliamentary organ. A choice was at stake between a sovereignty shared by the king and
the parliament and an exclusive power entrusted to the monarch. An aspect of the dispute
precisely involved the nature of law: if sovereignty was an absolute power, the will of the
ruler was the only and exclusive source of law, and every legal norm indirectly or directly
drew its validity from it.
It is against this idea that Edward Coke took a stand at the beginning of the seventeenth
century. According to Coke, ‘common law’ is the glue that holds the society together. And
common law is a system of norms, customs and judicial decisions which has nothing to
do with the will of anyone, but depends on reason and tradition. Common law is twice
(so to speak) rational: it is the outcome not only of natural reason, but also of a more
sophisticated reason Coke calls ‘artificial’; a reason enforced by the technical knowledge
of jurists and judges, who apply it and contribute to its development. There is neither
a founding will nor a precise date of birth of common law: the basis of its legitimacy
is, on one hand, its intrinsic rationality and, on the other hand, the progress of time,
an immemorial tradition which not even the merely political accident of the Norman
invasion had broken.10
The idea of an ancient constitution is still alive, which holds the political body together
and cannot be arbitrarily modified. This traditional issue, however, is now rephrased in
a quite different context (the conflict between the king and parliament and the contrast
between two incompatible ideas of sovereignty), and assumes a new meaning and a dif-
ferent scale.11 It is from here onwards that the Magna Carta begins to play a new role as
10
See: Boyer, Allen D. (2003), Sir Edward Coke and the Elizabethan Age, Stanford: Stanford
University Press; White, Stephen D. (1979), Sir Edward Coke and the Grievances of the Common
wealth, Manchester: Manchester University Press.
11
See: Pocock, John Greville Agard (1987), The Ancient Constitution and the Feudal Law.
A Study of English Historical Thought in the Seventeenth Century. A Reissue with a Retrospect,
Cambridge: Cambridge University Press; Burgess, Glenn (1992), The Politics of the Ancient
Constitution: An Introduction to English Political Thought (1603–1642), Basingstoke-London:
MacMillan.
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a component of the common law tradition, which, according to Coke, protects the rights
of Englishmen (not only of barons) against the undue interference of the sovereign.
The terms of the conflicts are clear: while the sovereign contends to have an unlimited
power and the monopoly of the law, his antagonists defend both the idea of a ‘shared’
sovereignty and the existence of legal norms that, precisely because independent from the
sovereign will, can confer inviolable rights on individuals.
The Petition of Rights (1628), which aimed to prohibit political power from arbitrarily
restricting the liberty of individuals, was an episode in the wrestling match between the
king and parliament and a further stage in the unfolding realization of the ideal of the rule
of law. It was a long and rough process that went on for the entire century and resulted
(as a consequence of the ‘Glorious Revolution’ of 1689) in a resounding success: the start,
in England, of a peculiar constitutional experiment with no counterpart in continental
Europe. An experiment based on a new form of government, a parliamentary government
(although still in an embryonic form) and a set of legal restraints to government to defend
the fundamental rights of citizens.
Power and law confronted each other yet again and the primacy of the law was again
underlined. The ancient antinomies appeared to be still alive and vital: law vs. power,
ratio vs. voluntas. From this point of view, we can trace a continuous line from the
Middle Ages up to the modern era. Two major novelties, however, break this line: first, a
new idea of sovereignty, which exalts the strength and the role of political power, having
the task of ensuring order and increasingly being able to achieve this goal; secondly,
the importance attached to individuals’ rights. Rights were becoming the gravitational
nexus of the political and legal system. The long struggle in England against monarchi-
cal absolutism was waged in the name of rights: the rights of Englishmen (according to
the jurists who, like Coke, moved on the path traced by common law); and the natural
rights of every human being (according to the philosophers who, like Locke, developed
the axioms of the natural law theory). In any case, individuals’ rights with regards to
liberty and property now became the aim for which the rule of law was the instrument.
The primacy of the law received a definite substance and sense: the protection of the
individual’s rights.
THE NEAR ROOTS OF THE RULE OF LAW: THE REVOLUTIONS

OF THE LATE EIGHTEENTH CENTURY
A modern idea of the rule of law arose in England between the seventeenth and eighteenth
centuries. The ancient image of a potestas sub lege, of a power subjected to law, returned,
but it was now subservient to the need to highlight the individual’s rights. Fundamental
rights, originally promoted by two mutually independent traditions – the common law
tradition and the natural law philosophy – finally found a point of convergence in the
extolment of the English regime: according to William Blackstone, natural rights had
found their most faithful implementation precisely in the English law in force.
While the rule of law was a component of the living constitution in eighteenth-century
England, it was only an important issue on the agenda of many prominent ‘enlightened’
philosophers living under the still absolutist French regime. In France (and in continental
Europe) the rule of law only belonged to a desired and planned alternative society, deeply
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discordant from the contemporary situation. According to many eighteenth-century

philosophers (consider Montesquieu for example), the English constitution was, from
this point of view, an important point of reference,12 but even those reformers who were
reluctant to accept unreservedly the ‘British model’, considered overcoming monarchical
absolutism an urgent goal. The rule of law was not in any case a self-sufficient aim: it
was a tool of leverage in the implementation of individual rights. On the horizon of the
widespread natural law theory, rights were conceived as the outcome of human nature
and were therefore untouchable and absolute. Far from being determined by sovereignty,
rights were a prerequisite of its legitimacy. Fundamental rights and rule of law supported
each other.
The individual and his rights (liberty and property) were the guiding star directing
the reformers’ plans, and the enlightened sovereign was the necessary means for the
implementation of those rights. Two points of this reform plan must be underlined.
First, the individual was assumed as the basis of the political order and the condition
of its legitimacy. The primacy and (so to speak) the visibility of the individual was an
impressive novelty compared to the medieval tradition, which was incapable of focusing
on the individual as such, apart from his or her belonging to social bodies and hierarchies.
Secondly, the implementation of individuals’ rights required the intervention of the
sovereign. Sovereignty (as an ‘enlightened’ sovereignty) was conceived as the natural and
indispensable ally of the individual. There was no tension at all between the sovereign and
the individual and between will and reason: the will of the sovereign being considered the
voice of reason and the shield of the natural rights of the individual.
The ‘enlightened’ philosophers expected from the sovereign a profound change of
society and politics, but things went differently from their expectations: an explosive
revolution broke out in France at the end of eighteenth century, with unpredicted and
decisive consequences.
In what sense did the French Revolution affect the idea of sovereignty? A great novelty
was undoubtedly introduced: sovereignty was no longer attributed to the monarch of the
ancien régime. The only legitimate holder of sovereignty had become the nation, which,
redefined by Sieyès on the very eve of the revolution, coincided with the Third Estate and
included 25 million unprivileged individuals. The holder of supreme power had changed
but the vision of sovereignty was still linked with the eighteenth-century tradition of
sovereignty being conceived as an absolute power. Thinking of sovereignty as a limited
power was considered a self-contradictory statement. As Hobbes had brilliantly argued,
if some competing power limits sovereignty then it is incapable of reaching its goal, i.e.,
discouraging conflict and establishing order. Rousseau shared this ‘absolutist’ idea of
sovereignty and Sieyès repeated that no rules of any kind could restrain the absolute
power of the sovereign nation.
The French revolutionaries shared this idea of sovereignty. According to them,
sovereignty could not but be absolute. At the same time, however, its major goal was the
implementation of individual rights. The individual rights, those of liberty and property,
were in fact an indispensable component of the revolutionary project, starting from the
12
Tillet, Edouard (2001), La constitution anglaise, un modèle politique et institutionnel dans la
France des Lumières, Aix-en-Provence: Presses universitaires d’Aix-Marseille.
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most famous among the revolutionary acts, the Declaration of the Rights of Man and
of the Citizen.13
An absolute sovereignty and absolute individual rights: how could two ‘absolutes’
peacefully coexist? At the beginning of the revolution, in a climate of enthusiasm and
widespread optimism, the implicit tension between sovereignty and rights was under-
stated. Only few keen leading actors of the revolution, such as Sieyès and Condorcet, did
not conceal the possibility of a perversion of sovereignty and tried to warn their fellow
citizens against the dangers of despotism.14 The situation changed quickly, however. The
conflict between the opposing parties within the revolutionary front escalated until the
triumph of radical Jacobinism, which offered dramatic evidence of the pervasive and
terrible energy of power, capable of threatening and destroying the liberty and safety of
individuals.15
The Jacobin phase of the French Revolution unveiled and highlighted a ‘field of
tension’ between sovereignty and rights. With this metaphor, I mean that modern
political culture can give up neither the idea of an absolute sovereignty nor the idea
of some absolute fundamental rights and, consequently, it is obliged to pursue the
almost impossible goal of conciliating two competing absolute principles (sovereignty
and rights).
Immanuel Kant had precociously grasped the deep sense of this dilemma and asked
how a full accomplishment of a sovereign power could be reconciled with the liberty
of subjects. In the light of his theoretical assumptions, he underscores the absolute
independence of the law from power. Law is not a contingent, variable element, changed
ad libitum by the power’s will. Law is the normative frame within which the relation-
ship among subjects and the coexistence of their respective spheres of liberty are made
possible.
In abstract, the law is based on itself and has no need to rely on sovereignty. However,
in reality the mutual respect of liberties disposed by law is continuously exposed to the
risk of being infringed, because the violation of rules, and a consequent encroachment
upon the liberty of others is always possible. The necessary answer to the violation of
norms is co-action. It is indispensable therefore that a supreme authority exists, capable
of using force. The juridical obligation, though ideally self-sufficient, concretely needs the
support of the sovereign power. Sovereignty is however dangerously inclined to oppress
the subjects, rather than protect their liberties. In the words of Kant;
man is an animal and if he lives among others of his kind he has need of a Master [. . .] to break
his self-will, and compel him to obey a Will that is universally valid, and in relation to which
everyone may be free [. . .]. But this master is an animal too, and also requires a master.
13
See: Rials, Stéphane (1988), La déclaration des droits de l’homme et du citoyen, Paris:
Hachette; Furet, François and Ozouf, Mona (eds) (1989), The French Revolution and the Creation
of Modern Political Culture, vol. III, ‘The transformation of political culture, 1789–1848’, Oxford:
Pergamon Press; Baker, Keith Michael (ed.) (1990), Inventing the French Revolution: Essays on
French Political Culture in the Eighteenth Century, Cambridge: Cambridge University Press.
14
See: Bredin, Jean Denis (1988), Sieyès: la clé de la Révolution française, Paris: Éditions de
Fallois; Pasquino, Pasquale (1998), Sieyès et l’invention de la Constitution en France, Paris: Odile
Jacob; Magrin, Gabriele (2001), Condorcet: un costituzionalismo democratico, Milano: Angeli.
15
Jaume, Lucien (1989), Le discours jacobin et la démocratie, Paris: Fayard.
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Kant further adds that this problem is, ‘the most difficult of its kind; and, indeed, its
perfect solution is impossible. Out of such crooked material as man is made of, nothing
can be hammered quite straight’.16 The solution Kant hinted at (though mentioned as a
mere asymptotic goal) is the creation of a ‘right constitution’: a constitution according
to which power is rationally settled, so that the State is a tool at the service of law and
rights. Kant strongly endorses the idea of a State acting in application of a law, whose
validity is independent from the State itself. He therefore conceives the State as a potestas
sub lege, as a State subject to law.17 The expression ‘Rechtsstaat’ (rule of law) does not
belong to the Kantian lexicon, but it is not by chance that this neologism, which appeared
in the German language between the eighteenth and nineteenth centuries, was at that time
labelled as an expression adopted by the followers of Kantian philosophy.18
Between the eighteenth and nineteenth centuries, the idea of restraining the sovereign
power in the name of some fundamental individual rights began to spread even in
continental Europe. And this idea is precisely the seed that will grow into the leafy tree
of the rule of law theory during the nineteenth and twentieth centuries. The difficulties
which legal theory was be obliged to confront in continental Europe had their proximate
root in a legacy received from the French Revolution: according to it, sovereignty, even if
the people and not the monarch were its holder, was nevertheless unlimited and absolute,
and the law was its main outcome. In this perspective, law was entirely traced back to the
sovereign will and rights grew only in the shadow of the law. On this ground, the Kantian
dilemma remained standing, any solution seemingly out of reach.
Instead, a different scenario occurred beyond the Atlantic. In North America, in the
second half of the eighteenth century, the British colonies gave rise to the process that
would have lead them to the conquest of a full autonomy. The creation of a new col-
lective identity and the establishment of a new political organization were at stake, and
the conceptual tools and rhetorical resources that the founding fathers resorted to in an
attempt to face these difficult tasks came from different cultural traditions, ranging from
Locke’s natural law philosophy to the republican discourse (and historians still debate on
the greater or lesser weight of one or the other component).19
The political and constitutional plan, which provoked lively and sometimes dramatic
conflicts, relied on two basic assumptions: on one side, the conviction that rights (liberty
16
Kant, Immanuel (1891), ‘Idea for a Universal History from a Cosmopolitan Point of View’,
in Kant’s Principles of Politics, including his Essay on Perpetual Peace. A Contribution to Political
Science, Edinburgh: Clark, 1891. pp 14–15.
17
See: Bernd, Ludwig (1988), Kants Rechtslehre, Hamburg: Meiner; Unruh, Peter (1993),
Die Herrschaft der Vernunft. Zur Staatsphilosophie Immanuel Kants, Baden-Baden: Nomos;
Kersting, Wolfgang (2004), Kant über Recht, Paderborn: Mentis; Niebling, Christian (2005), Das
Staatsrecht in der Rechtslehre Kants, München: Meidenbauer.
18
Stolleis, Michael (1990), Rechtsstaat, in Erler, Adalbert and Kaufmann, Ekkehard (eds),
Handwörterbuch zur deutscher Rechtsgeschichte, Berlin: Schmidt Verlag, IV Band, pp. 367–75;
Böckenförde, Ernst-Wolfgang (1992), Recht, Staat, Freiheit: Studien zur Rechtsphilosophie,
Staatstheorie und Verfassungsgeschichte, Frankfurt am Main: Suhrkamp.
19
See: Gibson, Alan (2006), Interpreting the Founding. Guide to the Enduring Debates over the
Origins and Foundations of the American Republic, Lawrence (Kansas): University Press of Kansas.
Gibson, Alan (2007), Understanding the Founding. The Crucial Questions, Lawrence (Kansas):
University Press of Kansas.
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and property) were an indispensable heritage of the individual and had to be protected
from any interference; on the other side, a full trust in the sovereign people, considered
as the driving force of the revolutionary process and the basis of the legitimacy of the
political order. The people were sovereign and therefore the holders of the constituent
power. The new order did not come from a gradual evolution of pre-existent institutions,
but was instead the outcome of a constituent decision. The new State could also rely on
a written constitution that would later be integrated by the Bill of Rights, which assigned
citizens a number of inviolable prerogatives.
A full and unconditioned sovereignty, on one side, and the inviolable rights of the
individuals, on the other side: is it possible to reconcile these opposites? It seems that in the
new-born American State the same dilemma was looming which the French Revolution
had bequeathed nineteenth-century Europe and that Kant would consider intractable.
Instead, two elements that could pave the way for a possible solution were engraved in
the cultural substance of the American Revolution: the vision of the constitution and the
role assigned to the judiciary.
It is true that the constitution is conceived as the outcome of people’s sovereignty
and not as a limit to it (at least according to Jefferson, if not to Madison). In any case,
the omnipotence of popular sovereignty was tempered by all the checks and balances
at work in an institutional machine, which had been carefully thought out. The decisive
point however is elsewhere, namely the conviction that the constitution and the Bill of
Rights are placed at the top of the legal system and enjoy a position that is hierarchically
superior to ordinary statutes. It therefore becomes plausible to think of a set of principles
and norms that, by virtue of their constitutional status, cannot be modified by simple
parliamentary majorities.20
The turning point was the famous sentence of John Marshall in the case of Marbury
v. Madison and the consequent formulation of the doctrine of the judicial review. Judge
Marshall kept in the background the idea of a full people’s sovereignty, but drew attention
to the existence of immutable principles enshrined in the constitution, with the result
being that a political decision contrary to the constitution could be annulled by a judicial
verdict. It was now the judiciary who were to be invested as the guardians of some basic
juridical principles and norms, which the Constitution itself wanted to shelter from the
variable decisions and vagaries of political power.21
Ultimately, the American way to the rule of law aimed to solve the Kantian dilemma
in three moves: first, the idea of people’s full sovereignty and constituent power was
endorsed; secondly, a written constitution was assumed as the cornerstone of the new
political order, guided it in all its expressions; thirdly, and consequently, it became possible
20
See: Wood, Gordon S. (1969), The Creation of the American Republic: 1776–1787, Chapel
Hill: University of North Carolina Press; Lutz, Donald S. (1988), The Origins of American
Constitutionalism, Baton Rouge-London: Louisiana State University; Lacorne, Denis (1991),
L’invention de la république: le modèle américain, Paris: Hachette; Stoner, James Reist (1992),
Common Law and Liberal Theory. Coke, Hobbes, and the Origins of American Constitutionalism,
Lawrence (Kansas): University Press of Kansas; Casalini, Brunella (2002), Nei limiti del compasso.
Locke e le origini della cultura politica e costituzionale americana, Milano: Mimesis.
21
Kahn, Paul W. (1997), The Reign of Law: Marbury v. Madison and the Construction of
America, New Haven-London: Yale University Press.
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to denounce the possible discrepancy between any norm and the constitution by opening
a gate to judicial review.
CONCLUDING CONSIDERATIONS
First in England then in the United States of America and in continental Europe
(during the seventeenth and eighteenth centuries), public opinion began to grasp the
crucial importance of an issue, namely the relationship between sovereignty and rights.
Individuals need the sovereign’s co-active force, so their rights could be implemented,
but fearing their realm of freedom being exposed to the uncontrolled decisions of power.
Rights are safe only when guaranteed not only by the sovereign but also against him
and for this purpose we need a set of indisputable rules and principles, an objective law,
capable of binding both sovereign and subject.
The triangle of power, law, and rights is the core of the modern idea of the rule of law.
In many European languages, a precise terminology or phrase for the rule of law was still
lacking at the end of the eighteenth century. At the beginning of nineteenth century the
German expression Rechtsstaat (rule of law) was still a neologism that would serve as a
model for other languages (for the French État de droit, the Spanish Estado de derecho,
the Italian Stato di diritto, and so on). While a definitive expression remained absent,
several lexical resources were available in order to voice the principal concern: how to find
a reasonable interaction between co-action and liberty, sovereignty, and rights. The idea
of the ‘rule of law’ began to seem the correct instrument. The rule of law was still a seed
or a shoot, not an adult plant. It will be in the last two centuries that several theories will
be formulated and numerous institutions created in order to demonstrate the conceptual
coherence and the practical feasibility of the rule of law.
The full maturity of the rule of law doctrine is relatively recent, but its conceptual core is
rooted in previous epochs. In the ancient world and in the Middle Ages a seminal distinc-
tion was already clear: the distinction between government of laws and government of
men, between the prince’s decisions and the impersonal reign of the law. This distinction
evokes a radical opposition that runs through Western culture: the opposition between
power and law. Power is conceived as the source of acts of will exposed to the risk of
partiality and arbitrariness, while law is represented as a set of rational, and therefore
impartial and impersonal, norms. Law relates then to reason and power with will.
These remote roots of the modern idea of rule of law were not severed during the
modern ages, but rather transformed by the introduction of new needs and new visions.
Sovereignty begins to be conceived as a potentially unlimited power, but rights too are
claimed with increasing force as the absolute and immutable basis of a legitimate regime.
Voluntas and ratio, power and law confront each other again, but now their relationship is
sensibly different from the past. While in the Middle Ages the subordination of reason to
will, of power to law, appeared an indisputable aspect of human society, in the modern age
the relationship between power and law becomes highly problematic and adversarial. On
one side, the main content of the law (or at least its principal function) tends to coincide
with the allocation of absolute rights to individuals while on the other, the sovereign claim
to being the only source of law. However, if law depends on sovereignty, then rights also
risk losing an autonomous and strong foundation.
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This is exactly the problem the rule of law doctrines attempted to resolve in the nine-
teenth and twentieth centuries: how to reach the dual goal of preserving sovereignty and
rescuing fundamental rights from the clutch of political decisions. In this scenario, rights
assume the semblance of a ratio capable of challenging the decisiveness of power and, not
by chance, the most frequent solution proposed by the rule of law doctrines is to leverage
the judicial control of political decisions. If the political power (the parliamentary majori-
ties in modern democracies) is the danger, defence appears to come from the judiciary.
The ancient association between law and ratio, and the no less ancient image of the judge
as the impartial interpreter of a superior wisdom, still seem capable of exercising some
secret fascination.
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9. Minimising Magna Carta and modernising
exposition of the rule of law in the English
historical constitution
J.W.F. Allison*
‘[T]he whole of the constitutional history of England is little more than a commentary on
Magna Carta’, the thirteenth-century grant inter alia of various ‘liberties’ by King John
‘to all the free-men’ of the realm in perpetuity.1 This was the view expressed by the consti-
tutional historian William Stubbs about a decade before Albert Venn Dicey’s The Law of
the Constitution was first published in 1885.2 This was not Dicey’s view of Magna Carta’s
constitutional importance. His late-nineteenth century view to the contrary marked, it
will be shown, significant constitutional modernisation of the rule of law, even in respect
of the traditional historicity of what he still saw as the English historical constitution.
As argued in Chapter 10, Dicey turned the rule of law into an integrated English consti-
tutional idea through an exposition of the rule of law that accorded with his mainly late-
modern, nineteenth-century, expectations or understandings of the English constitution.
These were expectations of method, national specificity, remedial effectiveness, congruity of
first principles and historicity. Alongside his expectation of congruity of the constitution’s
first principles, also of particular distinctiveness and importance, was his late-modern
understanding of the English constitution as a historical constitution. This contrasts with
previous understandings of its historical character, as expressed in the comparably similar
treatment of those earlier leading writers on the constitution and government (Jean Louis
De Lolme, James Ferris, Homersham Cox, and William Edward Hearn) which came
closest to Dicey’s.3 Well-known, if not always remembered, is Dicey’s thorough refutation
* This chapter was developed from research presented in a guest lecture, Research Centre for
Legal History, East China University of Political Science and Law, Shanghai, 2 September 2015,
and at the conference ‘The Past, Present and Future of the Rule of Law: Magna Carta, the 800th
Anniversary’, Centre for Common Law, Renmin University of China Law School, Beijing, 5
September 2015. For many helpful comments on an early draft, I would like to thank John Baker,
John Bell, Richard Helmholz, Jonathan Rose and David Sugarman.
1
William Stubbs, The Constitutional History of England in its Origin and Development, 3 vols,
vol. 1 (OUP 1874), p. 532; Magna Carta, 1215, cl. 1. The Holt translation of Magna Carta is used
here and wherever it is quoted below, J.C Holt, Magna Carta in George Garnett and John Hudson
(eds), (3rd edn, CUP 2015), pp. 379 ff. The clause numbers were added later. The original was not
written in distinct paragraphs or numbered clauses, chapters or articles. See Sir John Baker, The
Reinvention of Magna Carta 1216-1616 (CUP 2017), p. 3 and n. 18.
2
A.V. Dicey in J.W.F. Allison (ed.), The Oxford Edition of Dicey (OUP 2013), 2 vols, vol. 1, The
Law of the Constitution.
3
J.L. De Lolme, The Constitution of England (W. Wilson 1775); James Ferris, A Standard
of the English Constitution (the Author 1805); Homersham Cox, The Institutions of the English
Government (H. Sweet 1863); William Edward Hearn, The Government of England: Its Structure
and its Development (Longmans et al. 1867). On the choice and comparability of these writers
149
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of the fictitious history of ‘retrogressive progress’ to an ancient, pre-Norman, imaginary

constitution.4 He found knowledge of actual history singularly useful here in correcting
the ‘unreality’, the forms and fictions, of the lawyer’s view of the constitution.5 Much less
well-known and in need of attention is the history he put forward in its place, the character
of that history and its telling implications – a modernist corrective and critical history as
comparison, which he promoted in his comparative constitutional lectures.6
Dicey’s corrective and critical history as comparison affected his view of the significance
to the rule of law of Magna Carta, 1215. How it did so will be suggested, and a Diceyan
historical comparison put forward with three purposes in mind: first, to shed further light
on the significance for the development of the modern rule of law of Dicey’s exposition
relative to that of Magna Carta; secondly, to clarify a historical facet to constitutional
modernisation in his rule of law exposition; and, thirdly, to illustrate and assess the value
as well as the real and potential problems of such historical comparison.
I will explain, in the first section below, Dicey’s traditional view of the English constitu-
tion as a historical constitution, in the second section, the ways in which Dicey imported
to that constitution a history that was comparative, critical, and modernist, and, in the
third section, its implications for his view and treatment of Magna Carta.
Dicey’s view of history as comparison has received little attention. In the fourth section,
I will illustrate Diceyan history as comparison, show how such history might explain
Dicey’s view of Magna Carta’s importance, and illuminate his own exposition of the rule
of law and the scope of developments that culminated in it. In respect of each of his five
expectations or understandings of the constitution, I will briefly compare and contrast
Magna Carta’s own provisions, as originally stated, with his exposition of the rule of law
in the late-nineteenth century.
In the fifth and final section, because it is no longer usual to approach, present or pro-
mote history expressly or only as comparison, I will assess such history’s value – for Dicey,
for normative interpretivists in drawing upon his rule of law and for us more generally in
trying to understand its significance.
I. THE ENGLISH CONSTITUTION AS A HISTORICAL

CONSTITUTON
In The Law of the Constitution, Dicey negatively referred to the constitution, not as a
historical constitution, but as a ‘so-called “unwritten” constitution’, and presumably,
through its negation of the constitution’s written sources, as not wholly accurate (although
instead of other famous/prominent writers, such as Walter Bagehot and William Blackstone,
see Chapter 10 below, pages 170 f., n. 23. On the contributions also of other writers, see J.W.F
Allison, The English Historical Constitution: Continuity, Change and European Effects (CUP
2007), pp. 172–84; H.W. Arndt, ‘The Origins of Dicey’s Concept of the “Rule of Law”’ (1957) 31
Australian Law Journal 117.
4
Dicey, The Law of the Constitution, n. 2 above, pp. 16 f.
5
Ibid., p. 12.
6
A.V. Dicey in J.W.F. Allison (ed.), The Oxford Edition of Dicey (OUP 2013), 2 vols, vol. 2,
Comparative Constitutionalism.
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Minimising Magna Carta 151
still preferable to the written or ‘paper constitutions’ proliferating elsewhere).7 He prob-

ably avoided the phrase ‘historical constitution’ so as to curtail the ‘habit’ of focusing on
the constitution’s historical development to the detriment of attention to the law of the
constitution ‘as it now actually exists’.8 Historical references are nonetheless abundant
in The Law of the Constitution9 and, for comparative purposes, Dicey emphasised the
English constitution’s historical character. In his comparative constitutional lecture
‘Historical Constitutions and Non-Historical Constitutions’, he presented the English
constitution as a prime example of a historical constitution, exhibiting characteristics of
‘antiquity’ and ‘[u]nbroken continuity’ inter alia.10
Dicey’s view of the English constitution as a historical constitution with ancient
origins was traditional and not at all unusual. It had been commonplace in the nineteenth
century, shared by James Ferris, William Hearn and Homersham Cox. Ferris, thinking
still of the English constitution as essentially pre-Norman, wrote of ‘our good old Saxon
constitution’, ‘overturned’ and ‘trampled on’ by the Norman kings and ultimately upheld
in the face of the attempts of the Stuart kings to do likewise.11 Hearn claimed similarly
that the ‘Constitution of England under Queen Victoria is indeed the very constitution
under which the Confessor ruled and which the Conqueror swore to obey’, displaying
‘the same resemblance that there is between the infant and the man, between the seedling
and the full grown tree’.12 For Hearn, ‘by the unanimous and repeated declaration of our
Books’, Magna Carta was itself merely declaratory of the ancient common law.13 Cox
did not make comparably sweeping claims but still defended his ‘historical . . . researches’
(while limiting their scope) as essential to the intelligibility of crucial provisions of the
constitution and referred, for example, to ‘the ancient history of Parliament . . . to give
a clear account of its present constitution’ and representative character.14 Where Dicey’s
exposition was distinctive, was in refuting the fictitious history exemplified in the writings
of Ferris and Hearn.
II. THE HISTORY IN THE ENGLISH HISTORICAL

CONSTITUTION
Dicey’s abundant historical references to the constitution’s antiquity were, for example, to
the rule of law as one of two ‘features [that] have at all times since the Norman conquest
characterised the political institutions of England’ and to personal liability for official
wrongdoing as a ‘legal dogma, as old at least as the time of Edward the Fourth’.15 Under
7
Dicey, The Law of the Constitution, n. 2 above, p. 10; Dicey, Comparative Constitutionalism,
n. 6 above, p. 187.
8
Dicey, The Law of the Constitution, n. 2 above, p. 6 (preface to 1st edn.).
9
See, e.g., Allison, English Historical Constitution, n. 3 above, pp. 165 ff.
10
Dicey, Comparative Constitutionalism, n. 6 above, pp. 171 ff, 174, 176.
11
Ferris, Standard of English Constitution, n. 3 above, pp. 8, 11.
12
Hearn, Government of England, n. 3 above, p. 4.
13
Ibid., p. 5.
14
Cox, Institutions of English Government, n. 3 above, pp. ix, x1iv.
15
Dicey, The Law of the Constitution, n. 2 above, pp. 95, 160. See generally H. Butterfield, The
Whig Interpretation of History (G. Bell 1931).
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the influence of the nineteenth-century historians, such as Henry Hallam and Edward
Freeman, he suggested a normative whig history of the constitution’s past as general
progress to its present, particularly through the constitutional struggles and triumphs
of the seventeenth century.16 In contrast to Ferris and Hearn, however, Dicey showed a
historical sense or appreciation that was critical and modernist in two important ways.
First, at the outset in The Law of the Constitution, Dicey depicted historical anachro-
nism as the reason to be wary of the ‘unreality’ of the lawyer’s view of the constitution.17
He explained its forms and fictions as anachronistic, arising from the lawyer’s ‘habit
. . . of applying old and inapplicable terms to new institutions’ evident, for example,
in William Blackstone’s application of the term ‘Royal prerogative’ to elaborate on the
executive power as if it were held by the king and not the cabinet.18 Dicey was exposing
historical anachronism here as Maitland had done comprehensively under the influence
of humanist approaches to history, thus addressing rationalist criticism of the common
law’s antiquated features and promoting its modernisation.19
Dicey elaborated further on the forms and fictions of the English constitution in his
comparative constitutional lectures. He attributed to the constitution the characteristic
of ‘[u]nbroken continuity’, recognising factual discontinuity during the interregnum
but legal continuity through fiction – by the fictitious proclamation that Charles II had
immediately succeeded Charles I.20 For Dicey, adherence to the fiction and its acceptance
illustrated the legal ‘spirit’ of the English constitution, characterised by a ‘legal turn of
mind’, ‘a love for forms’ and ‘acquiescence in fictions’ about which he expressed ambiva-
lence – ‘from its bad side . . . formalism’, ‘but . . . from its good side, . . . a rational dislike
to break with the past’.21 Dicey’s criticism of fictions, severe elsewhere, was moderated
here, made less one-sided, by his appreciation of a historical constitution’s value in the
English context.22
Secondly, and again at the outset in The Law of the Constitution, he attributed value
to the historian’s view of the constitution as a source of knowledge that ‘guards us . . .
16
On Dicey’s progressive whig history, see generally Allison, English Historical Constitution,
n. 3 above, pp. 165 ff. The continuity of whig history of the constitution’s past as progress to its
present also involves its being ‘divided by great watersheds’ such as the Reformation (Butterfield,
Whig Interpretation of History, n. 15 above, p. 51) or the seventeenth-century conflicts between
Crown and Parliament.
17
Dicey, The Law of the Constitution, n. 2 above, p. 12.
18
Ibid., pp. 12–14, 12.
19
See, e.g., F.W. Maitland, ‘The Crown as Corporation’ in H.A.L Fisher (ed.), The Collected
Papers of Frederic William Maitland, 3 vols (CUP 1911), vol. 3, pp. 244–70. See generally J.W.F.
Allison, ‘History to Understand, and History to Reform, English Public Law’ [2013] CLJ 526,
541 ff.
20
Dicey, Comparative Constitutionalism, n. 6 above, pp. 176–82.
21
Ibid., pp. 70, 181 f. See also ibid., pp. 190 f.
22
See Dicey’s damning account of legal ‘fictions and survivals’ in the ‘period of old Toryism’
(1800–1830) (A.V. Dicey, Lectures on the Relation between Law and Public Opinion in England
during the Nineteenth Century (first published 1905, 2nd edn, Macmillan 1914), pp. 91–4, 91) and
of the English ‘general system of letting everything be something while it calls itself something
else’ (Robert S. Rait (ed.), Memorials of Albert Venn Dicey (Macmillan 1925), pp. 72 f.). See Mark
D. Walters, ‘The Unwritten Constitution as a Legal Concept’ in David Dyzenhaus and Malcolm
Thorburn (eds), Philosophical Foundations of Constitutional Law (OUP 2016), pp. 33–52, 47.
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from the illusion . . . that modern constitutional freedom has been established by an
astounding method of retrogressive progress; that every step towards civilisation has
been a step backwards towards the simple wisdom of our uncultured ancestors’.23 Dicey
emphatically rejected the appeal to a fictitious ancient, pre-Norman, constitution, long
regarded as commonplace by English common lawyers. He then qualified his refutation
of fictitious history with recognition of the necessity of ‘legal fictions or subtleties’ under
those ‘social conditions’ where they ‘afford the sole means of establishing that rule of
equal and settled law which is the true basis of English civilisation’.24 Bringing to mind
the false judicial claim in Prohibitions del Roy that since the Norman Conquest no king
(thus even the early Norman kings) had withdrawn cases for his personal determination,
he stressed its necessity at the time:
Nothing can be more pedantic, nothing more artificial, nothing more unhistorical, than the rea-
soning by which Coke induced or compelled James to forego the attempt to withdraw cases from
the Courts for his Majesty’s personal determination. But no achievement of sound argument, no
stroke of enlightened statesmanship, ever established a rule more essential to the very existence
of the constitution than the principle enforced by the obstinacy and the fallacies of the great
Chief Justice.25
Dicey’s critical historical appreciation was qualified by pragmatism, at least as a matter

of exceptional historic constitutional necessity.
Common to both the ways in which Dicey showed a critical modernist constitutional
sense was a comparison between past and present: on the one hand, between past institu-
tions to which old or ancient constitutional terms were applicable and new institutions
to which they were inapplicable or anachronistic; on the other hand, between the consti-
tutional reality of an ancient past and that of constitutional development in the present.
Dicey later explained and promoted his own critical approach to history as comparison.
For Dicey, ‘[w]hat we really gain from tracing the growth of an institution is a foundation
for comparing the institution as it once was with the same institution as it now exists’.26
He concluded as follows: ‘Half the instructiveness of the historical method is that inquiry
into the past compels us to realise the differences between it and the present. History is
comparison, though comparison need not be history. The historical method is at its best
an illustration of the comparative method.’27 In applying this comparative historical
method in a later lecture, he traversed and carefully explained, for example, detailed
points of likeness and of difference between English constitutionalism under George III
and the Victorian constitutionalism of his day. His method was the means to look beyond
superficial resemblance in recognition ‘that here, as elsewhere, continuity is a totally
different thing from identity and that, both in form and still more in spirit, the Georgian
differed from the Victorian constitution’.28 History as comparison was the critical means
not to mistake continuity for identity.
23
Dicey, The Law of the Constitution, n. 2 above, pp. 16 f.
24
Ibid., p. 17.
25
Ibid.; Prohibitions del Roy (1608) 12 Co. Rep. 63, 64.
26
Dicey, Comparative Constitutionalism, n. 6 above, pp. 4–15, 169 f., 5.
27
Ibid., p. 5.
28
Ibid., pp. 60–74, 62.
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Herbert Butterfield presented Sir Edward Coke as the most influential early whig
historian, ‘almost the extreme example of the whig interpretation of history’.29 Whig
history was at work in Coke’s confrontation with King James in Prohibitions del Roy and
most evident in his celebration of Magna Carta as ‘but a confirmation or restitution of
the common law’ predating the Conquest and older than imperial Roman law.30 Coke
conflated a myth of the common law’s antiquity with a myth of Magna Carta, by which
he elevated the status of both and to lawyerly purpose, inter alia, supplied Magna Carta
with the legal remedies it lacked.31
Dicey’s refutation of fictitious history as evident in Coke’s reports and other writings
is reason to distinguish Dicey’s own late-modern whig history from Coke’s much earlier
form. Dicey emphasised the English historical constitution’s continuity in its general pro-
gress from past to present but rejected claims to the common identity of its present with
its ancient past. The comparative dimension of whig constitutional history has received
insufficient attention,32 but is beyond the scope of this chapter.
III. DICEY’S TREATMENT OF MAGNA CARTA
Dicey’s treatment of Magna Carta was the opposite of Coke’s. He did not celebrate it and
certainly did not feel compelled even/only to attempt a brief summary of its articles as
William Stubbs had felt as all that need or could be done. Whereas Stubbs had felt that ‘the
whole of the constitutional history of England is little more than a commentary on Magna
Carta’,33 Dicey almost completely ignored it. He referred to it only once in The Law of the
Constitution. He did so in applying the third meaning he attributed to the rule of law, by
which constitutional principles and rights are the result of judicial decisions and not of
constitutional enactment.34 His reference was disparaging, suggestive of some equivalence
between ‘the celebrated thirty-ninth article of the Magna Carta’ and the insufficiently
29
H. Butterfield, The Englishman and his History (CUP 1944), pp. 40, 47–68, p. 49. See gener-
ally Butterfield, Whig Interpretation of History, n. 15 above.
30
Co. Inst. I, 81a. See also Co. Inst. II, 8; 3 Co. Rep. (first published 1602), Preface in John
Henry Thomas (ed.), The Reports of Sir Edward Coke, 6 vols, (Butterworth and Cooke 1826), vol.
2, pp. xii, xviii f.
31
See, e.g., ‘Edward Coke’s Memorandum on Chapter 29 (1604)’, Sir John Baker (ed.), Select
Readings and Commentaries on Magna Carta 1400–1604 (Selden Society 2015), pp. 394–402. See Sir
John Baker, ‘The Legal Force and Effect of Magna Carta’ in Randy J. Holland (ed.), Magna Carta:
Muse and Mentor (Thomson Reuters 2014), pp. 65–84, 83 f.; Baker, Reinvention of Magna Carta,
n. 1 above, pp. x f., Ch. 9, especially pp. 346–51, 442–7; Michael Dillon, ‘Magna Carta and the
United States Constitution: An Exercise in Building Fences’ in Daniel Barstow Magraw et al. (eds),
Magna Carta and the Rule of Law (ABA 2014), pp. 81–110, 98 ff. See generally J.G.A. Pocock, The
Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth
Century (first published 1957, 2nd edn, CUP 1987), Pt. 1, Ch. 2; Christopher Hill, Intellectual
Origins of the English Revolution Revisited (first published 1965, OUP 1997), Pt. 1, Ch. 5.
32
See Allison, English Historical Constitution, n. 3 above, pp. 171 ff. See generally, e.g.,
Butterfield, Whig Interpretation of History, n. 15 above; Pocock, Ancient Constitution and the
Feudal Law, n. 31 above, Pt. 1, Ch. 3, Pt. 2, Ch. 1.
33
Stubbs, The Constitutional History of England, n. 1 above, p. 532.
34
Dicey, The Law of the Constitution, n. 2 above, pp. 115 ff.
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secured enactment of the right to individual liberty in the Belgian constitution, and of the
article’s lesser significance than the writ of habeas corpus.35 The enactment of rights in the
Belgian constitution was his prime example of one of those constitutional ‘declarations
or definitions of rights so dear to foreign constitutionalists’.36 In a lecture at the Working
Men’s College, Dicey made another disparaging reference to Magna Carta. After empha-
sising the frequency with which personal freedom had been violated in France despite the
‘solemn’ French ‘Declaration of the Rights of Man’ of 1789, he again suggested Magna
Carta’s comparable insufficiency in securing the right to individual liberty.37
Further, Dicey seems notable for his absence from the General Committee of over 100
nominated to direct the 700th Magna Carta Celebration planned for 1915 and chaired by
Dicey’s long-standing friend Viscount James Bryce. The intended celebration could not
take place because of the outbreak of the First World War, and in the book of papers that
was later still published, Dicey’s name is absent from the Index and Contents page, and
scant reference is made to him or his work in the text.38 Sir Paul Vinogradoff characterised
‘the predominant strain in the analysis of the Great Charter by modern scholars . . . as a
sceptical reaction against the great constitutional claims made for Magna Carta since the
days of Coke’.39 Although not one of those Vinogradoff specifically named, Dicey was
one such modern scholar, sceptical of Magna Carta’s consequent significance for various
probable reasons. One was the third meaning he attributed to the rule of law; another
was his rejection of Coke’s fictitious identification of the historical constitution’s ancient
past with its present.
Underlying Dicey’s scepticism of Magna Carta’s significance was his critical approach
to history as comparison. This approach to history as comparison highlights the extent
to which Dicey’s exposition of the rule of law marked its modernisation in the English
historical constitution.
IV. MAGNA CARTA IN DICEYAN HISTORICAL COMPARISON
Reason for Dicey generally to have ignored Magna Carta, 1215,40 lies in the remoteness
of its features from his late-nineteenth century expectations or understandings of the
constitution’s methodical exposition, its national specificity, judicial and legal remedial
35
Ibid., pp. 121 ff, 122 (citing Magna Carta, 1215, in William Stubbs (ed.), Select Charters and
Other Illustrations of English Constitutional History (4th edn, OUP 1881), p. 301.
36
Dicey, The Law of the Constitution, n. 2 above, p. 116. In a passage of one of his comparative
constitutional lectures, he did also recognise that the ‘Magna Charta, the Bill of Rights, the Act of
Settlement, the Acts of Union are written documents which do contain a great deal of the [English]
constitution’ but discounted their significance as such to the constitution’s unwritten character,
Dicey, Comparative Constitutionalism, n. 6 above, pp. 22 f., 22.
37
A.V. Dicey, ‘The Rights of English Citizens. II.– Right to Personal Freedom’, (January 1900)
7 (92) Working Men’s College Journal, pp. 161–66, 162 (see page 160 below). For drawing my atten-
tion to this lecture, I would like to thank Mark Walters.
38
Henry Elliot Malden (ed.), Magna Carta Commemoration Essays (Royal Historical Society
1917).
39
P. Vinogradoff, ‘Magna Carta, C. 39, Nullus Liber Homo, etc.’ ibid., pp. 78–95, 79.
40
Magna Carta, 1215, is compared (not a version later in general use, such as Magna Carta,
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effectiveness, congruity of first principles and historicity. Evident in the provisions of

Magna Carta were basic ambiguity, specificity to the realm (not the English nation
as such), legal remedial deficiency, undeveloped and undifferentiated weightiness of
principle and assumed or imputed historicity.
(a) Basic Ambiguity
Whereas Dicey’s professorial duty was ‘to state what are the laws which form part of
the constitution’, to order them, to explain their meaning and to demonstrate their
logical interconnections,41 Magna Carta’s miscellany of provisions on ill-assorted m atters
– inheritance, guardianship, marriage of widows, debt repayment, the scutage levied on
landed knights, etc. – was lacking in logical arrangement. Serving or accommodating par-
ticular baronial interests in various ways and means, they were also equivocal as statements
of existing law or practice.42 Detracting more fundamentally, however, from Magna Carta
as an effective exposition in the development of the rule of law was its basic ambiguity.
Containing no reference to the rule of law as such, its famous and enduring provision of
recognised relevance to the modern rule of law was clause 39 of the 1215 Charter (as later
numbered):
No free man is to be taken or imprisoned or disseised or outlawed or exiled or in any way ruined,
nor will we go or send against him, except by the lawful judgement of his peers or by the law of
the land.43
As a statement of law in its original form, it was ambiguous in three basic ways, particu-
larly when viewed from a much later historical comparative perspective and with limited
understanding of its original context.
First, provision was made for no ‘free man . . . to be taken’ etc., but who was free and in
respect of whom or what they were free was highly uncertain in the then feudal, or political
socio-relational, order of overlapping interpersonal relations and obligations. Arguably
only the king was free in any sense close to the modern senses of freedom with which we
have become familiar – freedom from effective control or of general action. Although the
provision may well have been unusually comprehensive at the time,44 only in 1354 was
the wording clarified by statute to read ‘no Man, of what Estate or Condition that he be,
shall be . . . taken’ etc.45
1225) because it is the original to which Dicey made reference in The Law of the Constitution (see
n. 35 above) and which would have been in his historical comparative view.
41
42
‘Sometimes Magna Carta stated law. Sometimes it stated what its supporters hoped would
become law. Sometimes it stated what they pretended was law. As a party manifesto it made a party
case with scant regard for fact or existing practice’, Holt, Magna Carta, n. 1 above, pp. 256 f.
43
The provisions numbered clauses 39 and 40 were re-numbered clause 29 in the 1225 and
subsequent Charters.
44
For attempts to clarify what was then meant, see David Carpenter, Magna Carta (Penguin
2015), pp. 135 ff; Barnaby C. Keeney, Judgment by Peers (Harvard 1952), pp. 58 ff.
45
28 Edw. III, c. 3. See generally Holt, n. 1 above, pp. 239 ff; Baker, Reinvention of Magna
Carta, n. 1 above, pp. 32 ff; Anthony Arlidge and Igor Judge, Magna Carta Uncovered (Hart 2014),
pp. 45–50.
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Secondly, the requirement of ‘lawful judgement of his peers’ could have referred to
judgment by social equals (a literal translation of the Latin ‘pares’) or, in context,46 that
by those of equally high standing or nobility – the peers of the realm, such as the barons
who had assembled at Runnymede. Pursuant to the later development of Parliament,
‘peers’ was taken to mean its temporal lords, and, pursuant to that of the jury, ‘lawful
judgement of his peers’ was taken to mean ‘trial by jury’ in the seventeenth and eight-
eenth centuries, which it could not have meant in 1215, when there was no such trial in
criminal cases.47
Thirdly, the Charter provided that ‘[n]o freeman is to be taken or imprisoned . . . except
by the lawful judgement of his peers or (vel) by the law of the land’ (cl. 39). The Latin
‘vel’ has commonly been understood as disjunctive in meaning and translated literally as
‘or’, as it is in Holt’s translation above.48 Strong claims, however, were made by one of
Dicey’s prominent contemporaries amongst others that it was conjunctive in meaning,
with the serious innovative implication that Magna Carta then required in all cases both
‘lawful judgement of his peers’ and ‘by the law of the land’ as opposed to judgment by
some other trial process or some other, special or extraordinary, law.49 The further pos-
sibility that ‘vel’ meant ‘and/or’ has also been put forward, adding a further ambiguity:
the difficultly of distinguishing between cases where it meant ‘and’ from those where it
meant ‘or’.50
More generally, Magna Carta itself was fundamentally ambiguous in formal character.
It was framed as a grant of liberties but, being addressed ‘to all the freemen of our realm
for ourselves and our heirs for ever’, it was insufficiently precise and restricted to be
likened meaningfully to other concessionary grants by royal charter.51 It was not a statute
until issued by a parliament or confirmed by one, as it was for the first time several decades
later.52 It has been variously described as: a ‘peace treaty’ with certain provisions making
it approximate ‘to something more like a contract’,53 one that only became a freely agreed
Charter when redrafted in 1216;54 in practice ‘a political settlement’;55or only an evidential
record of grant, agreement or settlement.56 The ambiguity of its formal character has
46
For clarification by way of a contextual account, see Keeney, Judgment by Peers, n. 44 above,
pp. 49 ff.
47
See Baker, Reinvention of Magna Carta, n. 1 above, pp. 37 f.
48
See, e.g., F.M. Powicke, ‘Per Iudicium Parium vel per Legem Terrae’ in Malden (ed.),
Magna Carta Commemoration Essays, n. 38 above, pp. 96–121; Baker, Reinvention of Magna
Carta, n. 1 above, pp. 38 ff, 447 f.; Baker, ‘Legal Force and Effect of Magna Carta’, n. 31 above,
p. 74.
49
Vinogradoff, ‘Magna Carta, C. 39’, n. 39 above. See generally Arlidge and Judge, Magna
Carta Uncovered, n. 45 above, pp. 65 f.
50
Keeney, Judgment by Peers, n. 44 above, pp. 66 ff.
51
Magna Carta, 1215, cl. 1. See Baker, Reinvention of Magna Carta, n. 1 above, pp. 12 f.
52
Baker, ibid., pp. 6 ff, 13; Baker, ‘Legal Force and Effect of Magna Carta’, n. 31 above, pp. 65
ff.
53
Nicholas Vincent, Magna Carta: The Foundation of Freedom, 1215–2015 (Third Millennium
2015), p. 14; Nicholas Vincent, Magna Carta: A Very Short Introduction (OUP 2012), p. 66.
54
Baker, Reinvention of Magna Carta, n. 1 above, p. 5.
55
Arlidge and Judge, Magna Carta Uncovered, n. 45 above, p. 22. Holt also refers to it as a
‘settlement’, Magna Carta, n. 1 above, p. 224.
56
See Holt, ibid., pp. 224 ff.
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contributed to uncertainty and disagreement in determining its final crucial formalities

and interpreting the evidence crucial to the reliable dating of the grant, agreement or
settlement and the sealing or recording thereof.57
Ambiguous in basic character and in the meaning of its famous provision in clause 39,
Magna Carta did not approximate in formal quality to the clear, methodical and authori-
tative exposition of the rule of law in Dicey’s The Law of the Constitution.58 Magna Carta’s
basic ambiguity made it barely accessible. Its bare accessibility was made worse by its
being written in Latin, not English or law French, long before the printing press was
available for its reproduction. Subsequent translation, copying, printing, and repeated
reissues and confirmations by Parliament, increased accessibility but also uncertainty
about which of its many versions was authoritative.59
(b) Specificity to the Realm
One-hundred-and-fifty years after the Norman Conquest of England and centuries

before the nineteenth-century crystallisation of nation states in Europe, any approxi-
mation to the English national specificity of Dicey’s exposition of the rule of law as
peculiar to the English constitution and people (in stark contrast to the French) is not
to be expected and can be briefly stated. The barons at Runnymede were of relatively-
recent mixed Norman, French and Anglo-Saxon descent and were from families that
had only gradually in the preceding decades begun to divide into branches that were
identifiably Norman or English. The opening sentence of Magna Carta reflects the
lack of English national self-identity, indeed expresses continuing royal entitlements
or claims to authority beyond England, for centuries the cause of repeated national
jurisdictional conflict. It is stated in the name of King John as ‘King of England’ but
also, beyond England, as ‘Lord of Ireland, Duke of Normandy and Aquitaine, Count
of Anjou’ and was addressed in the first place to those barons and other dignitaries
of relatively-recent mixed descent. Apart from providing for ‘the English church . . .
to be free’, ‘liberties’ in Magna Carta were granted ‘to all the free-men of our realm’
(cl. 1) without reference to their Englishness or that of the realm. Further, the general
grant was made not to ‘make justices, constables, sheriffs or bailiffs, except of such men
who know the law of the realm and mean to observe it well’ (cl. 45). Magna Carta was
specific to the realm and the king’s subjects within the realm, not to the English nation
or people as such.
Although not originally framed as specific to the English nation, Magna Carta became
commonly viewed as indigenous and English in retrospect, and the law of the realm, or
‘the law of the land’ (cl. 39), was closely identified with the English common law, most
57
See ibid., pp. 218–26; Garnett and Hudson (eds), ‘Introduction’, n. 1 above, pp. 1–32, 25–31;
Carpenter, Magna Carta, n. 44 above, pp. xi, 361–6.
58
On the singular authority conferred upon and long retained by The Law of the Constitution
through its many editions despite the extent of change to law and government, see Allison, Editor’s
Introduction, Dicey, The Law of the Constitution, n. 2 above, pp. xii–xvi.
59
On the consequently disparate archival and documentary evidence for Magna Carta, ‘The
many faces of Magna Carta’, see Nicholas Vincent, Magna Carta: Origins and Legacy (Bodleian
Library 2015), Pt. 2, p. 152.
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famously by Coke and, through his influence, was long so identified.60 Without further
evidence of the drafting and drafters of Magna Carta, clearly proven instances of bor-
rowing from Continental law or of its influence are elusive, but, would be unsurprising. At
least here and there, odd additions to the law of the realm (or already within it) of ideas,
terms and procedures taken or adapted from canon law and the civil law of the European
ius commune are to be expected.61 One such suggested instance of Continental legal
influence with particular remedial relevance was Magna Carta’s original but short-lived
enforcement provision (cl. 61), which may well have been drafted at least in view of canon
law or Continental legal sources.62
(c) Legal Remedial Deficiency
The original enforcement provision in Magna Carta, 1215, provided for the barons to
choose ‘any twenty-five barons of the realm’, and for four of the chosen barons
to refer a case of transgression to the 25, who, ‘with the commune of all the land’
were to ‘distrain and distress’ the king’s property until redress was secured (cl. 61).
Magna Carta provided no legal or judicial remedies of its own, only this political
military remedy, use of which was not made because the 1215 Charter was soon
repudiated by King John and annulled by the Pope. The enforcement provision was
then omitted from the redrafts in 1216 and 1225 and from all the Charter’s reissues
and confirmations.
The practical consequences of transgression necessarily lay beyond the Charter
itself – in the political and ecclesiastical spheres and later under the common law, with
which Magna Carta was identified, most famously and influentially by Coke. For him,
the ‘statute of Magna Charta’ was ‘but a confirmation or restitution of the common
law’, which could therefore supply the legal remedies it lacked, such as habeas corpus, an
action of false imprisonment and mandamus.63 What Magna Carta lacked, the developed
common law could later provide. In particular, the retrospective identification of Magna
60
See page 159 below. See generally Richard H. Helmholz, ‘Magna Carta and the ius commune’
(1999) 66 U. Chi. L. Rev. 297, 300 ff; Mary Arden, ‘Magna Carta and the Judges – Why Magna
Carta Matters’ in Holland (ed.), Muse and Mentor, n. 31 above, pp. 181–9, 184 ff.
61
See generally R.H. Helmholz, ‘Continental Law and Common Law: Historical Strangers
or Companions?’ [1990] Duke Law Journal 1207, 1209 ff; Helmholz, ‘Magna Carta and the ius
commune’, n. 60 above; John Hudson, ‘Magna Carta, the ius commune, and English Common
Law’ in Janet S. Loengard (ed.), Magna Carta and the England of King John (Boydell Press 2010),
pp. 99–119. Cf. generally Holt, Magna Carta, n. 1 above, pp. 245 ff; Garnett and Hudson (eds),
‘Introduction’, note 1 above, pp. 1–32, 7 ff, 15 ff; Thomas J. McSweeney, ‘Magna Carta, Civil Law,
and Canon Law’ in Magraw et al. (eds), Magna Carta and the Rule of Law, n. 31 above, pp. 281–309.
62
See Helmholz, ‘Continental Law and Common Law’, n. 61 above, 1211 ff; Helmholz,
‘Magna Carta and the ius commune’, n. 60 above, 309 f., 352 ff. Cf. generally Holt, Magna Carta, n.
1 above, pp. 286 ff; Vincent, Magna Carta: Introduction, n. 53 above, pp. 66 ff.
63
Co. Inst. I, 81a. See Co. Inst. II, 55, 56; James Bragg’s Case (1615) 11 Co. Rep. 93b; ‘Coke’s
Memorandum on Chapter 29’, n. 31 above. See Baker, Reinvention of Magna Carta, n. 1 above,
pp. 42 ff. On Magna Carta’s own limited practical and legal consequences and its relevance in
the ecclesiastical sphere, see generally Carpenter, Magna Carta, n. 44 above, pp. 446 ff; Baker,
Reinvention of Magna Carta, n. 1 above, pp. 17 ff, 24 ff.
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Carta with the writ of habeas corpus seems to have been mutually beneficial to the status
and enduring significance of both.64
In his exposition of the rule of law, Dicey could take the availability and importance
of the remedies supplied by the common law for granted, as could others before him.65
In a lecture at the Working Men’s College, he observed that ‘Magna Charta says that no
man may be imprisoned without trial’, added that ‘in the earlier times of our history we
find that the last thing most of us enjoyed was personal freedom, as we now understand
it’, and proceeded to elaborate on the later development of the writ of habeas corpus and
other common law remedies.66 In The Law of the Constitution, Dicey’s semantic elevation
of judicial and legal remedial effectiveness was central to the third meaning he attributed
to the rule of law. This was the antithesis of Magna Carta, from the provisions of which
legal remedies were absent; indeed any remedy whatsoever was absent after the omission
of its original political military remedy from the redraft of 1216.
(d) ‘[G]reat weightinesse and weightie greatnesse’
Coke attributed the Charter’s name ‘Magna Charta’ not to its length but ‘in respect of
the great weightinesse and weightie greatnesse of the matter contained in it in few words,
being the fountaine of all the fundamentall lawes of the realme’.67 The mundane initial
reason for the name it soon acquired was rather to distinguish it as redrafted in 1217
from the smaller Charter of the Forest of the same year.68 Its moral weight and impor-
tance, especially to Coke, as evident, for example, in clause 39, was clear, but its weighty
principles were scattered, with little differentiation of weight, amongst its miscellaneous
provisions on inheritance, scutage, the marriage of widows, and so on.
Magna Carta’s foremost principle, in ‘the first place’ as stated, was ‘that the English
church . . . shall have its rights undiminished and its liberties unimpaired’ but is followed by
‘all the liberties written below’ (cl. 1), thus introduced without further differentiation of their
importance. The ‘law of the realm’ (cl. 45) and the ‘law of the land’ (cl. 39) were left without
further specification, and a principle of Parliament’s sovereignty was simply absent for want
of an institutionalised parliament. Anything resembling a parliament, as we know it, did not
then exist, and Magna Carta, 1215, could not have been the product of a parliament.69 At
64
See generally Justin Wert, ‘Habeas Corpus and Magna Carta’ in Holland (ed.), Muse and
Mentor, n. 31 above, pp. 159–79.
65
See, e.g., the earlier treatment of James Ferris, Homersham Cox and William Hearn,
Chapter 10 below, pages 177 f.
66
Dicey, ‘Rights of English Citizens’, n. 37 above, p. 162.
67
Co. Inst. I, 81a.
68
A.B. White, ‘The Name Magna Carta’ (1915) 30 English Historical Review 472, (1917) 32
English Historical Review 554. On the various theories put forward to explain the name, see Bryan
A. Garner, ‘A Lexicographic Look at Magna Carta’ in Holland (ed.), Muse and Mentor, n. 31
above, pp. 85–102, 88 f. On the Forest Charter, see generally Nicholas A. Robinson, ‘The Charter
of the Forest: Evolving Human Rights in Nature’ in Magraw et al. (eds), Magna Carta and the Rule
of Law, n. 31 above, pp. 311–77.
69
J.R. Maddicott, The Origins of the English Parliament (Selden Society Lecture, 12 July 2011,
Selden Society 2013); J.R. Maddicott, The Origins of the English Parliament, 924–1327 (OUP
2010), pp. 157 ff.
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most, certain of Magna Carta’s own provisions, in referring, for example, to the ‘twenty-five
barons with the commune of the land’ for the enforcement of the Charter (cl. 61) or to ‘the
common counsel of the realm for the assessment of an aid . . . or a scutage’ obtained by
specified procedure (cl. 14), were themselves catalytic attempts at bringing together a body
politic of the king, the church and leading freeman, reflecting a conception of the realm as
some sort of corporate entity that was capable of self-expression.70 What basic principles
are identifiable in Magna Carta’s miscellaneous provisions – such as those referring to the
‘law of the realm’ or the ‘common counsel of the realm’ – were insufficiently differentiated
or specified to necessitate, or even make possible, an approximation to Dicey’s much later,
purposeful, attempt to demonstrate congruity of the constitution’s first principles and
to reconcile, in particular, the developed principles of the rule of law and Parliament’s
sovereignty.
(e) Imputed Historicity
Coke’s celebration of Magna Carta as ‘but a confirmation or restitution of the common

law’ predating the Conquest and older than imperial Roman law was not without any
foundation.71 Coke described a kingly commitment, dating back to the reign of William
I, to abide by the ancient laws. In Coke’s account, William I ‘swore to observe’ the laws
of the kingdom, ‘good, approved and ancient’, and depicted as ‘the laws of K. Edward’
the Confessor (thus from before the Conquest).72 According to Coke, King Henry I then
promised at his accession to abolish all the evil customs that had subsequently arisen and
commanded the restoration of Edward’s laws, confirmed in the Coronation Charters of
King Stephen and King Henry II and culminating in Magna Carta. Henry I did indeed
promise to abolish ‘all the bad customs by which the realm of England’ had been ‘unjustly
burdened’ and to restore the ‘law of King Edward I’ (subject to the improvements his father
had made).73 In their Coronation Charters, Stephen and Henry II then did likewise by
promising to maintain all the good laws granted by Henry I (also those of Edward, specifi-
cally by Stephen and implicitly by Henry II). The barons of 1215, in opposing King John
and seeking to bind him to the Charter’s liberties, and presumably Archbishop Stephen
Langton (first mentioned of those on the advice of whom the liberties were granted) in
advising him,74 were appealing to a tradition of confirming the good old laws of Edward
the Confessor and of Henry I. The outcome was much interpolation and distortion of those
old laws and imputed or fictitious identification of those old laws with Magna Carta.75
70
See Maddicott (2013), ibid., pp. 10 f., 19; Maddicott (2010), ibid., pp. 139–43; Vincent,
Magna Carta: Foundation of Freedom, n. 53 above, p. 72.
71
Co. Inst. I, 81a. See 8 Co. Rep. (first published 1611), Preface in John Farquhar Fraser (ed.),
The Reports of Sir Edward Coke (Butterworth and Cooke 1826), vol. 4, pp. iii ff. See generally
Co. Inst. II, 1-78; Pocock, Ancient Constitution and the Feudal Law, n. 31 above, pp. 42 ff; Baker,
Reinvention of Magna Carta, n. 1 above, pp. 13 ff.
72
8 Co. Rep. in Fraser (ed.), n. 71 above, Preface, pp. iii, iv, v.
73
Henry I’s Coronation Charter, in Richard Sharpe (ed.), digital edition (http://www.earlyeng
lishlaws.ac.uk/laws/texts/hn-cor/view/#edition,1/translation,1), cls 1, 13.
74
See Vincent, Magna Carta: Foundation of Freedom, n. 53 above, pp. 29, 33; Vincent, Magna
Carta: Introduction, n. 53 above, pp. 64 ff.
75
See, e.g., Holt, Magna Carta, n. 1 above, pp. 19 f., 47 f., 116 ff, 118 ff.
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The tradition of claiming the restoration of the old or ancient laws has been attributed
to the sanctity or holiness of Edward the Confessor,76 propagandistic justification of
Normal rule as restorative of those old laws77and even negation of the Conquest through
their stated retention.78 Such appeals to tradition were also commonly made on the
Continent79 and may reflect a basic medieval preconception ‘that all rule must be by
ancient law’.80 Whatever the explanation, the fictitious identification of Magna Carta
with the ancient pre-Conquest common law was made both by Coke and those who
secured the grant of liberties in Magna Carta. Dicey’s rejection of fictitious history was
as much applicable to Coke’s celebration of Magna Carta as to Magna Carta itself. In
historical comparison, Dicey’s exposition of the rule was the antithesis of both Magna
Carta and Coke’s celebration.
From his late-modern perspective, Dicey had good reason generally to ignore Magna
Carta, thus to doubt its ultimate and enduring significance and to react against Coke’s
celebration. Its basic features were remote from Dicey’s mainly formal late-nineteenth
century expectations or understandings of the constitution. Magna Carta illustrated
much to which he was averse and afforded little to which he could turn for guidance or
inspiration on what mattered to him.
V. THE CORRECTIVE VALUE OF HISTORY AS COMPARISON
Many obvious differences of text and context between Magna Carta in the early-
thirteenth century and Dicey’s exposition of the rule of law in the late-nineteenth century
are to be expected and are reason to question the value of history as comparison. For
Dicey, it had value. On the one hand, it made him sensitive to historical anachronism –
the inapplicability of terms from an old or ancient past to a very different present – the
‘unreality’ of the forms and fictions in the lawyer’s view of the constitution.81 On the other
hand, it was a guard from the ‘illusion’ of history as ‘retrogressive progress . . . towards
the simple wisdom of our uncultured ancestors’.82 It was good reason generally to ignore
Magna Carta and discount its present significance, not to repeat but to refute the appeal
to a fictitious ancient, Norman or pre-Norman constitution.
Dicey explained that one of the ‘immense recommendations’ of the comparative
method, thus of historical comparison he subsumed under it, was that ‘as applied to the
English constitution [it] brings into light just those aspects of our institutions which we
76
Ibid., p. 117.
77
Vincent, Magna Carta: Foundation of Freedom, n. 53 above, pp. 28 ff.
78
Pocock, Ancient Constitution and the Feudal Law, n. 31 above, p. 53.
79
See, e.g., in Hungary, the Golden Bull of King Andrew II issued in 1222, which redressed
the diminution of the liberties that had been established for nobles by Saint King Stephen early in
the eleventh century, and which consented to their reinstatement, Henricus Marczali, Enchiridion
Fontium Historiae Hungarorum (Societas Athenaei 1902), pp. 134 ff. See generally Martyn Rady,
‘Hungary and the Golden Bull of 1222’ (2014) 24 (II) Banatica 87. For further examples, see Holt,
Magna Carta, n. 1 above, pp. 88 ff, 117 f.
80
Pocock, Ancient Constitution and the Feudal Law, n. 31 above, p. 42.
81
82
Ibid., pp. 16 f.
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otherwise fail to notice’.83 Its purpose was to illuminate through comparison and contrast.
For us, the historical comparison of Dicey’s exposition of the rule of law with that in
Magna Carta illuminates, and can readily be used to highlight, the extent of Dicey’s
contribution, on the one hand, and Magna Carta’s relative limitations, on the other. In
comparison with that of Magna Carta, his contribution appears much greater than the
coining or popularising of the term ‘the rule of law’ or of the idea itself. Rather, in histori-
cal comparative overview, it appears to signify constitutional modernisation, to mark the
turning of the rule of law into a modern, integrated, English constitutional idea. Dicey’s
contribution appears, as such, to be multi-faceted, meeting his various expectations or
understandings of the constitution in the late-nineteenth century – its methodical exposi-
tion, English national specificity, judicial and legal remedial effectiveness etc. – none of
which were comparably met in Magna Carta.
The recommendations of history as comparison, as a kind of history, come at the price
of methodological problems – real and potential – which are shared in varying degrees
with other kinds of history. They are critical in assessing Dicey’s dismissive treatment of
Magna Carta and the implications for our interpretation and use of his own account of
the rule of law. Three problems in particular arise from the historical comparison above.
They are anachronism, the selection and abstraction of what is to be compared with what
and comparative devaluation or overvaluation of one or the other.
First, to apply terms taken from one period or context to another very different period
or context may be anachronistic either because the institutions to which they refer are
absent or because similar institutions are present but the terms by which they are known
bear a different meaning. So, in comparing Magna Carta, 1215, with Dicey’s rule of
law exposition,84 on the one hand, Dicey’s late-nineteenth century terms ‘Parliament’,
‘sovereignty’, ‘rule of law’, ‘nation’ etc. are anachronistic for want of equivalents in the
early-thirteenth century. On the other hand, the early-thirteenth century terms of ‘Magna
Carta’, ‘free men’, ‘peers’, ‘liberties’ etc. are anachronistic when simply identified with
their apparent equivalents in the late-nineteenth century insofar as they had by then
acquired new meanings. Historical comparison is thus at risk of anachronism, but is
less so if the periods being compared are proximate in time and place. Careful historical
comparison is, further, a means with which to expose anachronism. In trying but failing
to be able to apply the terms from one period to the institutions of another, or having to
qualify their application, they can be shown to be inapplicable or only applicable subject
to qualification. For Dicey, historical comparison was itself such a means to expose the
anachronism of the antiquated forms and fictions of the lawyer’s view of the constitution
and to discount as anachronistic the constitutional importance of Magna Carta.85
Secondly, history as comparison is not comprehensive history in all its nuanced
complexity. Insofar as it selects and abstracts two particular periods for comparison, it is
segmental in focus. A comparison between two particular periods illuminates the extent
of change from one period to the next but not how or why intervening changes occurred,
nor who then contributed what and how. Historical comparison focused on the period
83
Dicey, Comparative Constitutionalism, n. 6 above, p. 7.
84
See, e.g., pages 155 ff. above.
85
See, e.g., pages 152 f., 154 f. above.
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when Dicey first wrote The Law of the Constitution thus does not clarify his own specific
rule of law contribution. It necessitates the corrective of further comparison not narrowly
confined to the periods being compared. Only through the further comparison of Dicey’s
exposition of the rule of law with the comparably similar treatment of those who preceded
him – of Jean Louis de Lolme, James Ferris, Homersham Cox and William Hearn, as
detailed here and in Chapter 10 – does the full scope of Dicey’s own contribution become
clear. The exposition of others, taken together, was also methodical, nationally specific
and preoccupied with judicial and legal remedial effectiveness. Only Dicey’s The Law of
the Constitution contained, in addition, the nominal contribution of ‘the rule of law’ as
such and in pride of place, sustained attempts to demonstrate congruity of the constitu-
tion’s first principles, and reaction to its anachronistic forms and fictitious history. In
brief, through the further comparison, Dicey’s two main contributions become clear. The
one, the subject of Chapter 10, was to turn the rule of law into an integrated constitutional
idea through those sustained attempts, suggestive that congruity of the constitution’s first
principles was at least ascertainable if not necessarily ascertained in Dicey’s exposition.
The other, the subject of this chapter, was to imbue the English historical constitution
with modernist history: not the fictitious history of Magna Carta as imputed restitution
of the ancient pre-Norman common law, not history as ‘retrogressive progress’ to an
imputed past, but critical history as comparison, compelling us ‘to realise the differences
between [the past] and the present’.86
The first problem of anachronism and the second of selection contribute to the risk of
a third – the devaluation or overvaluation of what is being compared. On the one hand,
by selecting a remote past period for comparison and seeking anachronistic equivalence
with modern terms and institutions that are absent, it can be devalued in comparison.
For that reason, a Diceyan historical comparative discounting of Magna Carta’s consti-
tutional importance in general would be vulnerable to severe criticism, particularly of its
importance as evident in earlier centuries and very different contexts. On the other hand,
by anachronistic identification of modern terms with apparent or supposed equivalents in
the past, what is abstracted from the past can be overvalued in comparison as progressive,
ahead of its time. The overvaluation of an imputed past was Dicey’s particular concern
in expounding on the rule of law. In the English historical constitution, it motivated his
substitution of fictitious history, epitomised in Magna Carta as imputed restitution of an
ancient past, with critical history as comparison.
The third problem of overvaluation (or devaluation) can be addressed by attending
to its sources; the first problem of anachronism and the second of selection. History as
comparison is then itself a corrective, provided it is sensitive to anachronism and used
to expose it, and its selections of what is to be compared with what are carefully tailored
and justified, as suggested above. In history as comparison, the reward for the exercise
of methodological rigour so as to address the problems of anachronism, selection and
overvaluation is enhanced appreciation both of difference and similarity between past and
present, in text and context.
To those for whom the rigour required to address the methodological problems is
86
Dicey, The Law of the Constitution, n. 2 above, p. 17; Dicey, Comparative Constitutionalism,
n. 6 above, p. 5.
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daunting or a deterrent, and who are understandably disinclined to make, or much rely
upon, an elaborate, tailored and justified historical comparison, merely a rough but
critical sense of history as comparison and of its problems is a ready source of caution
in relating the present to the past (and vice versa). The caution is one of common sense
in relating the present to a past that is remote and difficult to access. A critical sense
of history as comparison is then a common-sense corrective to the over- or over-ready
identification of the present with the past, examples of which have been commonplace in
treatment of the rule of law in the constitutional tradition of the English common law.
It does, for example, preclude simply identifying Dicey’s exposition of the rule of law
with Magna Carta or of either with the ancient pre-Norman constitution.87 A fortiori, it
precludes simply identifying our current rule of law with provisions in Magna Carta, and
guards against exaggeration of similarity in expressing the comparisons already implicit
in the 2015 celebrations to mark its 800th anniversary.88 History as comparison is then
a guard against reading too much of the modern rule of law into Magna Carta or into
Dicey’s exposition, thus also of reading too much of Dworkin into Dicey. Whatever
continuities are identifiable, ‘continuity is a totally different thing from identity’ in Dicey’s
history as comparison.89
History as comparison allows for appreciation of similarity as much as it does of
difference. Continuities between Dicey and others writing in the broad English common
law tradition, such as Ronald Dworkin or Trevor Allan, are to be expected, between, for
example, integrity in Dworkin’s or Allan’s constitutionalism and Dicey’s preoccupation
with congruity of the constitution’s first principles and are plausibly suggested.90 Only
claims that they are ‘essentially similar’ are rendered suspect or unpersuasive insofar they
are suggestive of common or shared identity.91 Mindful of Dicey’s history as comparison
and avoiding preoccupation with common identity, the normative interpretivist can draw
on normative or normativist continuities without needing to identify, separate and single
out a Dicey who is ‘himself an interpretivist’ – thus effectively to split Dicey’s complex
persona92 – and without needing to rely on strained interpretation to demonstrate his
87
Mark Walters rightly argues that ‘Dicey’s writings should be considered against the backdrop
of the age-old trope within English legal and political writing concerning the ancient constitution –
the idea of an immemorial Saxon constitution that survived the yoke of Norman invaders’, ‘Public
Law and Ordinary Legal Method: Revisiting Dicey’s approach to Droit Administratif’ (2016) 66
University of Toronto Law Journal 53, 57 f. Particular account, however, should be taken of Dicey’s
scepticism towards the continuing relevance of the ancient constitution and of his refutation of
the fictitious history central to it. An outcome of Dicey’s critical historical comparative sense was
his breaking of the circle in the circular justification the ancient constitution argument claimed to
provide. For Dicey, foundational circular justification lay, not in a fictitious ancient constitution,
but in the English historical constitution’s whig history of a past understood as general progress
to its present, Allison, English Historical Constitution, n. 3 above, pp. 23, 13 f., 165 ff. See generally
Walters, ‘The Unwritten Constitution as a Legal Concept’, n. 22 above, pp. 46 ff.
88
Cf. generally, e.g., the responses of Arden, ‘Why Magna Carta Matters?’, n. 31 above; Baker,
‘Legal Force and Effect of Magna Carta’, n. 31 above.
89
Dicey, Comparative Constitutionalism, n. 6 above, p. 62.
90
See Chapter 10 below, pages 182 f.
91
T.R.S Allan, ‘Dworkin and Dicey: The Rule of Law as Integrity’ (1988) 8 OJLS 266, 267.
92
T.R.S. Allan, The Sovereignty of Law: Freedom, Constitution, and Common Law (OUP
2013), pp. 10 ff, 11. See also ibid., p. 105. Cf. generally the argument of Mark Walters that Dicey
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developing interpretivism.93 The normative interpretivist has no need then to avoid

transparency of selection or to overstate continuity, connections or correlations in consti-
tutional interpretation, and thus reduce its plausibility and create suspicion of disguised
distortion or invention of constitutional authority.94
Dicey’s turning of the rule of law into an English constitutional idea was a multi-faceted
contribution to its modernisation, as argued in Chapter 10, having two distinctive facets
in particular: first, sustained attempts to demonstrate congruity of the constitution’s first
principles; secondly, modernist critical history as comparison with which he imbued the
English historical constitution. For the normative interpretivist, attention to the second
is a corrective to exaggeration of the first. Recognition of his multi-faceted contribu-
tion in general and its historical comparative facet in particular removes the burden of
persuasion on the interpretivist to show that any one facet is essential, determinative of
Dicey’s identity, relative to that seemingly of others individually or in common intel-
lectual endeavour. Dicey’s multi-faceted contribution met his own several expectations
or expressed his several understandings of the constitution, variously shared with and
diverging from those of writers before and after him in the constitutional tradition of the
English common law.
The corrective value of history as comparison lies in its panoramic view, of the persons
or periods being compared, both of similarity and of difference.
‘consciously integrated’ ‘analytical, formalist, scientific, descriptive and positivist . . . approaches
. . . within an overarching legal theory that also embraced comparative, historical and normative
approaches’, ‘Dicey on Writing the Law of the Constitution’ (2012) 32 OJLS 21, 47.
93
See, e.g., the reliance in Walters, ‘Public Law and Ordinary Legal Method’, n. 87 above,
74–6, on a revisionist passage in which Dicey accepted that it was ‘at least conceivable that modern
England would be benefited by the extension of official law’ (Dicey, The Law of the Constitution,
n. 2 above, p. 442) as evidence for Dicey’s developing interpretivism although that passage lacks the
interpretative language of those passages where Dicey had already elaborated, emphasised or relied
on interpretation elsewhere in the Law of the Constitution’s first edition (see, e.g., pp. 11, 24, 183 f.)
94
See generally Stuart Lakin, ‘Defending and Contesting the Sovereignty of Law: The Public
Lawyer as Interpretivist’ (2015) 78 MLR 549.
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10. Turning the rule of law into an English
constitutional idea
J.W.F. Allison*
In facilitating the everyday understanding of the rule of law’s history and importance,
historic rule of law moments have been the subject of keen interest and attention. One
such moment was the issuing of Magna Carta in the thirteenth century, inter alia, as a
grant of various ‘liberties’ by King John ‘to all the free men’ of the realm in perpetuity.1 It
is a moment captured in bas-relief on the bronze doors of the US Supreme Court and was
widely celebrated in 2015 on the 800th anniversary of its first issue. Another such moment,
similarly captured on the bronze doors, is Lord Chief Justice Coke’s confrontation with
King James in the early-seventeenth century, culminating in Coke’s blunt reminder of
Bracton’s famous dictum that the king must not be under man but under God and under
the law.2 To help make of such moments more than mere glimpses or snapshots of the past,
two rule of law moments and their relative significance are the subjects of the last chapter
and of this chapter: in Chapter 9, the royal grant in Magna Carta, 2015; in Chapter 10, the
nineteenth-century exposition of the rule of law by Albert Venn Dicey, which, at a mini-
mum it will be suggested, made it common conceptual currency in the English language.
In jurisdictions subject to the English common law or under its influence, the rule of
law is widely associated with Dicey.3 The association is the outcome of his exposition of
the rule of law as a key constitutional principle in his foundational work and multi-edition
textbook The Law of the Constitution, first published in 1885.4 For decades, however, the
* This chapter was developed from research presented in a guest lecture, Research Centre for
Legal History, East China University of Political Science and Law, Shanghai, 2 September 2015,
and at the conference ‘The Past, Present and Future of the Rule of Law: Magna Carta, the 800th
Anniversary’, Centre for Common Law, Renmin University of China Law School, Beijing, 5
September 2015. For many helpful comments on an early draft, I would like to thank Trevor Allan,
John Bell, Vernon Bogdanor, Peter Cane, David Dyzenhaus, Jeffrey Jowell, Dylan Lino, Stephen
Sedley and David Sugarman.
1
Magna Carta, 1215, cl. 1, tr. J.C Holt, Magna Carta in George Garnett and John Hudson
(eds), (3rd edn, CUP 2015), p. 379.
2
Prohibitions del Roy (1608) 12 Co. Rep. 63, 65.
3
See, e.g., Tom Bingham, The Rule of Law (Penguin 2011), pp. 3 ff; Jeffrey Jowell, ‘The Rule
of Law’ in Jeffrey Jowell et al. (eds), The Changing Constitution (8th edn, OUP 2015), pp. 13–37;
Martin Krygier, ‘The Rule of Law: Legality, Teleology, Sociology’ in Gianluggi Palombella and
Neil Walker (eds), Relocating the Rule of Law (Hart 2009), pp. 45–70; Judith N. Shklar, ‘Political
Theory and The Rule of Law’ in Allan C. Hutchinson and Patrick Monahan (eds), The Rule of
Law: Ideal or Ideology (Carswell 1987), pp. 1–16, 5, 6. Shklar called Dicey’s account the ‘most
influential restatement of the Rule of Law since the 18th century’ and was of the view that ‘it is
Dicey’s shadow that hangs over both the libertarian invocation of the Rule of Law and the radical
attack upon it’, ibid.
4
A.V. Dicey in J.W.F. Allison (ed.), The Oxford Edition of Dicey (OUP 2013), 2 vols, vol. 1, The
Law of the Constitution.
167
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extent of Dicey’s rule of law contribution has been variously described and its quality and
current relevance disputed.
Dicey has been said to have ‘coined’ or at least ‘popularised’ the phrase ‘the rule of law’5
or to be ‘its originator’6 of at least that of ‘the Diceyan concept’7 or also of the idea itself.8
In contrast, Anthony Arlidge and Igor Judge, citing ‘the certain rule of [the] law’ in the
seventeenth-century Petition of temporal grievances from the House of Commons, argue
that ‘[t]he “rule of law” is not a newly minted aspiration nor a phrase created by AV Dicey
in the nineteenth century’.9 Dicey’s exposition is nonetheless often simply regarded and
cited10 as a historic rule of law moment alongside those other crucial moments mentioned
above.
Whereas the extent of Dicey’s rule of law contribution has been variously described
with faint change of phrase, its quality and current relevance have remained subjects of
major disagreement.11 That debate continues unabated is evident in two recent books. In
Lions under the Throne on the one hand, Stephen Sedley describes Dicey as the concept’s
‘originator’ but dismisses Dicey’s exposition as ‘historically flawed and juridically
incomplete’, nowhere near any modern account, riddled with errors and ‘not couched in
theoretical or normative terms at all’.12 In The Sovereignty of Law on the other, Trevor
Allan provides a contrasting liberal normative interpretivist account that derives much
5
See, e.g., F.H. Lawson, The Oxford Law School, 1850–1965 (OUP 1968), p. 72; J.W.F. Allison,
The English Historical Constitution: Continuity, Change and European Effects (CUP 2007), p. 157;
Bingham, Rule of Law, n. 3 above, p. 3.
6
Stephen Sedley, Lions under the Throne: Essays on the History of English Public Law (CUP
2015), p. 280. Stephen Sedley has emphasised the elusiveness of the rule of law’s meaning and
added ‘[b]ut we at least know, or think we know, that the concept originated with Albert Venn
Dicey’s Introduction to the Study of the Law of the Constitution’, ibid., p. 269. Sedley has subse-
quently stated that he ‘did not endorse the notion that Dicey was in fact the originator’, letter to
the author, 25 February 2017, and that he was only suggesting that ‘it is from Dicey that the notion
of the rule of law comes to us’, email to the author, 3 March 2017.
7
H.W. Arndt, ‘The Origins of Dicey’s Concept of the “Rule of Law” ’ (1957) 31 Australian
Law Journal 117, 123.
8
‘The idea of the rule of law – in fact the expression itself – comes from Dicey’, Sedley, Lions
under the Throne, n. 6 above, p. 269. On Sedley’s views, see further note 6 above.
9
Anthony Arlidge and Igor Judge, Magna Carta Uncovered (Hart 2014), p. 123. The bracketed
insertion in ‘the certain rule of [the] law’ is absent from their citation but present in the original,
House of Commons, Petition of temporal grievances (7 July 1610) in Elizabeth Read Foster (ed.),
Proceedings in Parliament 1610 (Yale University Press 1966), 2 vols, vol. 2, House of Commons,
pp. 257–71, 258. According to Lord Judge, this was the first appearance he could discover of ‘the
concept of the rule of law in its more important, modern sense’, Lord Judge, The Safest Shield:
Lectures, Speeches and Essays (Hart 2015), p. vii.
10
See, e.g., Lord Woolf, ‘The Judiciary of England and Wales and the Rule of Law’ (2006)
39 Ind. L. Rev. 613, 617; Johan D. van der Vyver, ‘International Justice and the International
Criminal Court: Between Sovereignty and the Rule of Law’ (2004) 18 Emory Int’l L. Rev.
133,135–7.
11
See, e.g., Allison, Editor’s Introduction, Dicey, The Law of the Constitution, n. 4 above, pp. xx
f., xxxix f.
12
Lions under the Throne, n. 6 above, pp. 280, 269, 271. Sedley states that ‘it is a partial and
Panglossian account of the English legal system at the height of its Victorian self-assurance, as
disparaging of foreign systems as it is vain about our own, reading more like a pamphlet than a
textbook’, p. 271. For Sedley’s views on Dicey as the concept’s originator, see note 6 above.
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Turning the rule of law into an English constitutional idea 169
from Dicey that is of value.13 While recognising complexity and contradiction in Dicey’s
famous text, Allan elaborates on his own conception of the rule of law by expressly
drawing on a Dicey whom he reads as ‘himself an interpretivist’ inter al., and whose rule
of law ‘is as much the gift of historical tradition and respect for liberty as a merely formal
doctrine, making everyone equally subject to whatever Parliament decreed as the law of
the land’.14 Mark Walters similarly concludes that Dicey’s later ‘work edged toward an
interpretivist theory of law and legality’ and identifies ‘a connection between Dicey’s
approach to the rule of law and Dworkin’s interpretivism’ of recent decades.15
Sedley and Allan’s divergent accounts of the quality and current relevance of Dicey’s
rule of law contribution have one feature in common. Both are highly selective,16 although
they differ greatly in transparency and apparent normative purpose, making the one
account simply reductive and, the other, plainly normative. Sedley simply dismisses
Dicey’s account of the rule of law by reducing it to a text from which theoretical or
normative argument is supposedly absent and one said to read ‘more like a pamphlet
than a textbook’.17 In elaborating his own interpretivist constitutional theory, Trevor
Allan elevates Dicey’s account of the rule of law by selecting, transparently, for normative
purpose and with express justification, from Dicey’s admittedly complex persona a Dicey
as ‘himself an interpretivist’ – one Dicey in the close company of other Diceys.18
This chapter is an attempt to address unjustified reductive selectivity in understanding
Dicey’s rule of law contribution. Its purpose is to shed light on the full extent of that
contribution and thus facilitate comprehensive assessment of its quality and relevance.
My thesis is not that Dicey invented the expression ‘the rule of law’. Nor is it that he
coined or popularised it, and, in so doing, provided us with one of our historic rule of
13
T.R.S. Allan, The Sovereignty of Law: Freedom, Constitution, and Common Law (OUP
2013). On interpretivism and for a sympathetic critique of his interpretivist account, see Stuart
Lakin, ‘Defending and Contesting the Sovereignty of Law: The Public Lawyer as Interpretivist’
(2015) 78 MLR 549.
14
Allan, Sovereignty of Law, n. 13 above, pp. 10–12, 11. See also ibid., pp. 50–54. Cf. generally
Allan’s earlier, less qualified, account, ‘Dworkin and Dicey: The Rule of Law as Integrity’ (1988)
8 OJLS 266.
15
Mark D. Walters, ‘Public Law and Ordinary Legal Method: Revisiting Dicey’s approach to
Droit Administratif’ (2016) 66 University of Toronto Law Journal 53, 78 f. See generally Mark D.
Walters, ‘Dicey on Writing the Law of the Constitution’ (2012) 32 OJLS 21.
16
Cf. generally Martin Loughlin’s conclusion that ‘Dicey’s concept of the rule of law is rich,
intricate, and ambiguous’, Foundations of Public Law (OUP 2010), p. 317.
17
Lions under the Throne, n. 6 above, p. 271 (for the full quotation, see n. 12 above and the
text preceding it). Stephen Sedley’s treatment of Dicey is reductive also in three other main ways:
first, through his single-minded preoccupation with Dicey’s errors, which he leaves largely lacking
in historical explanation, as he does Dicey’s massive influence nonetheless (see, e.g., pp. 64, 118,
269–71, 275); secondly, through his readiness to impute improper motives to Dicey seemingly
for want of much else by way of explanation (see, e.g., pp. 144, 147 f., 271); and, thirdly, through
his fixed focus upon Dicey’s famous text The Law of the Constitution at the expense of attention
to Dicey’s complementary or corrective comparative constitutional lectures. On those lectures,
see A.V. Dicey in J.W.F. Allison (ed.), The Oxford Edition of Dicey (OUP 2013), 2 vols, vol. 2,
Comparative Constitutionalism. Dicey’s lecture entitled ‘Constitutionalism of the Commonwealth’,
ibid., Pt. 1, Ch. 2, pp. 29–52, is detailed, and its subject matter overlaps with that of Sedley’s Ch. 4
in Lions under the Throne.
18
Allan, Sovereignty of Law, n. 13 above, pp. 10–12, 11.
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law moments. It is that his contribution is much greater, more pervasive, at least in the
English and Commonwealth legal context. Dicey’s contribution was the turning, the
formal shaping, of the rule of law into an integrated English constitutional idea. By that
turning, I mean the express, methodical, and comprehensive incorporation of the rule of
law (alongside parliamentary sovereignty) as one of ‘the two principles which pervade the
whole of the English constitution’,19 that thus accorded with his own mainly late-modern
(nineteenth-century) expectations or understandings of the form that the constitution
should take, at least when viewed from a legal perspective.
Presented below are five of Dicey’s principal, mainly late-modern20 and formal expecta-
tions or understandings of the English constitution (as shared with others in varying
degrees) of special relevance to his account of the rule of law. They were mainly formal21
in their focus, not on good government or the good working of the state, as such, in a
free and prosperous society but on English constitutional legal forms – their exposition,
effectiveness, and correlation to the nation and its history – for the furtherance of good
government, freedom, and prosperity in the English context. They are distinguished
below as expectations of method, national specificity, remedial effectiveness, congruity of
first principles, and historicity. I will first elaborate on each expectation or understand-
ing (apart from historicity, which was dealt with in Chapter 9) by considering Dicey’s
methodological approaches and exposition of constitutional principle in his famous foun-
dational work and in his recently published and little-known comparative constitutional
lectures.22 I will then explain how and in what degree his exposition of the rule of law,
relative to the comparably similar treatment of those earlier leading writers on the English
constitution and government (Jean Louis De Lolme, James Ferris, Homersham Cox and
William Edward Hearn) which came closest to Dicey’s,23 answered those expectations or
19
Dicey, The Law of the Constitution, n. 4 above, p. 180. See also ibid., p. 5.
20
The focus in this chapter is on Dicey’s late-modern expectations or understandings, not his
arguably ‘pre-modern conditions and assumptions’ affecting his responses to the development
of the administrative state and administrative law, Loughlin, Foundations of Public Law, n. 16
above, pp. 441–3, 442. See generally P.P. Craig, ‘Dicey: Unitary, Self-correcting Democracy and
Public Law’ (1990) 106 LQR 105; J.W.F Allison, A Continental Distinction in the Common Law: A
Historical and Comparative Perspective on English Public Law (rev. pbk edn, OUP 2000).
21
Their formality is evident in Dicey’s conclusion to his promotion of constitutional compari-
son: ‘The Constitution is after all something like the clothing of the state. You may clothe a man
in armour, but you will not thereby give him either bravery or strength, but the force of a giant is
useless if once you get him bound in a strait waistcoat’, Comparative Constitutionalism, n. 17 above,
p. 13.
22
See ibid.
23
J.L. De Lolme, The Constitution of England (W. Wilson 1775); James Ferris, A Standard
of the English Constitution (the Author 1805); Homersham Cox, The Institutions of the English
Government (H. Sweet 1863); William Edward Hearn, The Government of England: Its Structure
and its Development (Longmans et al. 1867). For the purpose of establishing the full extent and
distinctness of Dicey’s contribution, various other famous/prominent writings on the English
constitution are not comparably similar, or not usefully compared, either through their inatten-
tion (or insufficient attention) to the role of law and the courts (e.g., Walter Bagehot, The English
Constitution (first published in 1867, OUP 2001)) or through the absence of elaboration on any
proximate general constitutional principle by which government and its officers were made subject
to law (e.g., William Blackstone, Commentaries on the Laws of England, 4 vols, (OUP 1765–69)).
These other prominent writings, however, to the extent they were the basis upon which the English
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expressed those understandings. I will argue that, amidst the various contextual influences
on Dicey that are the subject of my other writings,24 Dicey’s rule of law contribution is
fully understood only in relation to those various expectations or understandings.
In assessing the quality and current relevance of what will be shown to be his multi-
faceted contribution, I will suggest the particular strength, importance, and distinctive-
ness, relative to common earlier expectations or understandings, of one expectation
therefore comparable to his late-modern, nineteenth-century, understanding of the
constitution as a historical constitution (dealt with in Chapter 9). That expectation was
of congruity of the constitution’s first principles. In conclusion, the implications of that
expectation for current normative interpretivist or other contemporary use of Dicey’s rule
of law will be suggested.
I. DICEY’S EXPECTATION OF THE ENGLISH

CONSTITUTION’S METHODICAL EXPOSITION
(a) The Ordering of Both Written and Unwritten Constitutions
Dicey was well aware that ‘written or enacted constitutions [were] gradually supersed-
ing unwritten or conventional constitutions’ and that they were doing so for two main
reasons – first, because ‘tacit understandings’, through the extension of the franchise,
had become insufficient for a shared sense of good government and, secondly, because a
constitution needed to be written if it was to be new.25 His basic methodological expecta-
tion, however, was not that the English constitution should be written or codified. He
voiced a degree of contempt and condescension towards written constitutions. To codify
would have been to add to the ‘scores of paper constitutions’ that had been proliferating
since the late-eighteenth century and to provide one of ‘those declarations or definitions
of rights so dear to foreign constitutionalists’.26 Instead, his basic expectation was that
the constitution should be methodically expounded.
Dicey’s expectation of methodical exposition was implicit in the analytical expository
method he promoted in his first lecture in The Law of the Constitution as follows:
[A] professor whose duty it is to lecture on constitutional law . . . must feel that he is called upon
to perform the part neither of a critic nor of an apologist, nor of a eulogist, but simply of an
expounder . . . The duty, in short, of an English Professor of law is to state what are the laws
constitution was previously understood, through that very inattention or absence of elaboration,
do reveal the impact of Dicey’s contribution in making the rule of law central to English and
Commonwealth constitutional thought. On the contributions also of other writers, see Allison,
English Historical Constitution, n. 5 above, pp. 172–84; Arndt, ‘Origins of Dicey’s Concept’, n. 7
above.
24
See Allison, Continental Distinction in the Common Law, n. 20 above, pp. 78 ff, 125, 157 f.;
Allison, English Historical Constitution, n. 5 above, Ch. 7; Allison, Editor’s Introduction, Dicey,
The Law of the Constitution, n. 4 above, pp. xxii–x1ii; Allison, Editor’s Introduction, Dicey,
Comparative Constitutionalism, n. 17 above, x1 ff.
25
Dicey, Comparative Constitutionalism, n. 17 above, p. 157. See also ibid., pp. 233 ff.
26
Ibid., p. 187; Dicey, The Law of the Constitution, n. 4 above, p. 116.
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which form part of the constitution, to arrange them in their order, to explain their meaning,
and to exhibit where possible their logical connection. He ought to expound the unwritten or
partly unwritten constitution of England, in the same manner in which Story and Kent have
expounded the written law of the American constitution.27
By implication, the unwritten English constitution was itself ordered and logical and
to be made more so through professorial exposition, in the same manner as a written
constitution. Further, in demonstrating applications of the rule of law in a later lecture,
Dicey expressly introduced topics for exposition (such as the right to personal freedom,
the right to freedom of discussion, etc.) as ‘“articles”, so to speak, of the constitution’
in view of their potential to become ‘sections’ of a constitutional code.28 The unwritten
constitution in England was to approximate to a written constitution through exposition,
by being made more methodical, more clearly stated and, by implication, more accessible,
to students in the first instance for the purpose of educating29 them in the law of the
constitution.
In his classic exposition, Dicey attributed three meanings to the rule of law: first,
‘the absolute supremacy . . . of regular law as opposed to the influence of arbitrary
power’; secondly, ‘equality before the law, or the equal subjection of all classes to the
ordinary law of the land administered by the ordinary Law Courts’; and, thirdly, the
law of the constitution consequent to ‘the rights of individuals, as defined and enforced
by the Courts’, ‘the result of the ordinary law of the land’.30 His exposition has long
been criticised, in substance (for example, as depicting wide discretionary governmental
authority to be arbitrary according to his first meaning), and, in form, as productive of
a narrow ‘technical meaning’, by which ‘English writers have been mesmerised . . . for
too long’.31 It certainly lacks the clarity and elegance of the later formulation – ‘if the
law is to be obeyed’ it ‘must be capable of being obeyed’ – but it is at least methodical.32
Dicey’s three meanings, expressing concerns that have remained central to the rule of law
(legal certainty, equality before the law and its judicial enforcement) met Dicey’s basic
expectation of the constitution’s methodical exposition.
The methodical character of Dicey’s exposition is apparent when compared with the
similar treatment of earlier writers. Jean Louis de Lolme and James Ferris expressed ideas
similar to those expressed in the second meaning Dicey attributed to the rule of law. De
Lolme was full of praise for the impartial administration of justice in England:
[T]o such a degree of impartiality has the administration of publick Justice been brought in
England, that it is saying nothing beyond the exact truth, to affirm that any violation of the
laws, though perpetrated by Men of the most extensive influence, nay, though committed by
the special direction of the very first Servants of the Crown, will be publickly and completely
27
Dicey, The Law of the Constitution, n. 4 above, pp. 10, 24 (emphasis added). See Dicey,
Comparative Constitutionalism, n. 17 above, p. 4.
28
29
On Dicey’s educational mission, purposes and their implications, see Allison, Editor’s
Introduction, Dicey, The Law of the Constitution, n. 4 above, pp. xxiv ff, xxxi ff.
30
Ibid., p. 119.
31
F.A. Hayek, The Road to Serfdom (Routledge 1944), p. 54, n. 1; Joseph Raz, ‘The Rule of
Law and its Virtue’ (1977) 93 LQR 195, 202, n. 7.
32
Raz, ibid., 198.
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redressed. And the very lowest of subjects will obtain such redress, if he has but spirit enough
to stand forth, and appeal to the laws of his Country.—Most extraordinary circumstances
these!33
De Lolme’s treatment of the idea of equality was rhetorical, even eulogistic, not succinct,
systematic, or methodical. The quoted passage appears in a chapter that is both repeti-
tive and interspersed with numerous references to instances and episodes in English and
ancient Roman history.34 Further, that chapter is itself the 27th of 30 short chapters in
two books, largely lacking in systematic arrangement.
Similarly, James Ferris, in what seems to have been the first book to make laws
(‘equally and universally binding’) a defining feature of the English constitution,
exclaimed ‘Happy island, whose laws have no respect of persons!’35 After his early
chapters on ‘laws’ and on ‘the judicial power and proceedings’, chapters follow on
an ill-assortment of topics, namely taxes, the House of Commons, toleration, trade,
agriculture, the population, etc.36 In method, neither De Lolme’s nor Ferris’s treatment
is anything like Dicey’s exposition. In contrast, the later treatment of Homersham Cox
was methodical, expressly ‘arranged upon a systematic plan’ according to the three basic
branches of government, and contained a chapter entitled ‘The Supreme Power of the
Law’.37 Hearn’s treatment in The Government of England was similarly methodical, and
contains a paragraph entitled ‘The supremacy of the law’,38 but, as will be shown, the
late-nineteenth century accounts of both Cox and Hearn diverged from Dicey’s in other
important ways.
(b) Dicey’s Nominal Contribution: ‘The Rule of Law’ in Pride of Place
Occasional use of ‘rule of law’ phrases to connote a quality of good or preferred govern-
ment long predates Dicey’s exposition. Apart from reference to ‘the certain rule of the
law’ in the Petition of temporal grievances by the Commons to King James,39 reference
was also made to ‘the knowne rule of the Law’ by King Charles I40 and much later to ‘the
33
De Lolme, Constitution of England, n. 23 above, p. 212.
34
Ibid., Bk 2, Ch. 16.
35
Ferris, Standard of English Constitution, n. 23 above, p. 9; Arndt ‘Origins of Dicey’s
Concept’, n. 7 above, 120.
36
Ferris, Standard of English Constitution, n. 23 above, pp. 4, 10.
37
Cox, Institutions of English Government, n. 23 above, p. x1iii; Bk 2, Ch. 5. His earlier work was
similarly methodical but contains no such chapter, Homersham Cox, The British Commonwealth
(Longman at al. 1854).
38
Hearn, Government of England, n. 23 above, p. iii, Ch. 3, para. 7.
39
‘Amongst many other points of happiness and freedom which Your Majesty’s subjects have
enjoyed under your royal progenitors, kings and queens of this realm, there is none which they
have accounted more dear and precious than this, to be guided and governed by the certain rule
of the law, which giveth both to the head and members that which of right belongeth to them
and not by any uncertain or arbitrary form of government’, House of Commons, Petition of
temporal grievances in Foster (ed.), House of Commons, n. 9 above, pp. 257 ff, 258 (emphasis
added).
40
‘Wee tooke a full and cleare prospect of the inconveniences, and mischiefs, which had growne
by the long intermission of Parliaments, and by the parting too much from the knowne rule of the
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general rule of law’ by Mr Justice Blackburn.41 The adjectives used to qualify ‘rule of law’
(or ‘rule of the law’) – ‘certain’, ‘knowne’ and ‘general’ – may now seem to express modern
ideas of legal certainty and generality, still central to thinking about the rule of law, but
they also distinguish those qualified earlier concepts of the rule of law from Dicey’s, under
which those ideas were subsumed.
Leading writers on the English constitution who preceded Dicey expressed rule of law
ideas but used slightly different words or phrases and with far less prominence. In express-
ing their admiration for equality under the constitution, Jean Louis De Lolme and James
Ferris did not use the phrase ‘the rule of law’ and entitled their treatment with nondescript
headings. The title of De Lolme’s chapter was long and inelegant: ‘Second Difference. –
The manner after which the Laws for the Liberty of the Subject are executed in England.’42
Ferris entitled his chapter simply ‘On laws’, and the title was omitted by mistake from
the book’s table of contents, thus nondescript and also nonexistent for the purpose of
attracting the initial attention of readers.43 Homersham Cox entitled a long chapter ‘The
Supreme Power of the Law’, a phrase that approximates to Dicey’s ‘the rule of law’, but he
did not present it as one of the constitution’s two or three central principles, as did Dicey.44
Cox concluded his chapter by quoting De Lolme’s eulogy on the impartial administration
of justice in England but presented the principle ‘that every power and every person in the
state are subject to its ordinary judicature’ as residual, only after his detailed exposition of
legal immunities and exemptions, with which he expressly qualified it.45
William Hearn, referring also to De Lolme’s admiration, entitled his paragraph on
equality before the law ‘The supremacy of the law’, a phrase that Dicey treated as syn-
onymous with ‘the rule of law’.46 Hearn’s paragraph, however, is fairly brief at two and
a half pages, his phrase does not appear in it, and paragraph titles were not included in
the text, only in the table of contents.47 Further, for the chapter as a whole, he used the
obscure ‘metaphysical . . . or we might say metaphysiological’ title ‘The Legal Expression
of the Royal Will in Judicature’.48 He then, in paragraphs of the next chapter, expounded
at length on the personal responsibility of officers for their acts and advice before the
Law, to an Arbitrary power’, His Maiesties Declaration to All His Loving Subjects, of the 12 of
August. 1642 (His Majesties 1642), p. 3 (emphasis added).
41
‘It is contrary to the general rule of law, not only in this country but in every other, to make
a person judge in his own cause; and though the Legislature can, and no doubt in a proper case
would, depart from that general rule, an intention to do so is not to be inferred except from much
clearer enactments than any to be found in these statutes’, Mersey Docks Trustees v Gibbs (1866)
11 HLC 686, 710–11 (emphasis added).
42
De Lolme, Constitution of England, n. 23 above, p. 191.
43
Ferris, Standard of English Constitution, note 23 above, pp. xxiii, 4.
44
Cox, Institutions of English Government, note 23 above, Bk 2, Ch. 5, pp. 407–63; Dicey, The
Law of the Constitution, n. 4 above, pp. 5, 180.
45
Cox, Institutions of English Government, n. 23 above, pp. 407–27, 427.
46
Hearn, Government of England, n. 23 above, p. iii. See, e.g., Dicey, The Law of the Constitution,
n. 4 above, pp. 95, 180 f.
47
Hearn, Government of England, n. 23 above, Ch. 3, para. 7, pp. 87–9.
48
F.W. Maitland, ‘The Crown as Corporation’ in H.A.L Fisher (ed.), The Collected Papers
of Frederic William Maitland, 3 vols (CUP 1911), vol. 3, pp. 244–70, 249; Hearn, Government of
England, n. 23 above, p. 65.
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ordinary courts, but, with the same obscurity, entitled that chapter ‘The Legal Expression
of the Royal Will in Administration’.49
In contrast to Hearn and the other earlier writers, Dicey made ‘The Rule of Law’ (in
both text and table of contents) the main title to three of the eight lectures in the first
and second editions of The Law of the Constitution and the title to Part II of the three
main parts in its later editions. Further, he added elegance and profundity by omitting
the second article ‘the’ from ‘the rule of the law’. The change of name from the ‘Rule of
the Law’ to the ‘Rule of Law’ is comparable in some measure to the change from The
Facebook to Facebook. By expounding on the rule of law in terms of legal certainty and
equality inter alia, and by giving ‘the rule of law’ a touch of extra elegance, profundity,
and special prominence, indeed pride of place, in his foundational multi-edition textbook,
Dicey made at a minimum, the nominal contribution of what thus became, in English, the
principle’s standard name – ‘the rule of law’.
II. DICEY’S UNDERSTANDING OF THE ENGLISH

CONSTITUTION’S NATIONAL SPECIFICITY
In Dicey’s late-nineteenth century world of hardening or crystallising nation states,

another of Dicey’s understandings or expectations was of the constitution as nationally
specific to England and its people – ‘the English constitution’. That Dicey’s exposition of
the rule of law expressed such an understanding is well known and can be briefly stated.
He repeatedly presented the rule of law, in each of its meanings, as ‘a characteristic of
the English constitution’, ‘a peculiarity’ or ‘special attribute of English institutions’50 and
in contrast with foreign constitutions and institutions on the Continent and particularly
in France. His well-known explanation of the rule of law in its second meaning – the
subjection of ‘every man, whatever be his rank or condition’ to the ordinary law of the
ordinary courts – was by way of contrast.51 His extended illustration was of French droit
administratif administered, not by the ordinary courts, but by tribunaux administratifs,
as a violation of the rule of law.52 Similarly, Dicey illustrated the rule of law in its
third meaning (the law of the constitution as consequent to ‘the rights of individuals,
as defined and enforced by the Courts’) by contrasting the dependence of rights on
constitutional enactment in Belgium and elsewhere.53 Dicey’s exposition of the rule of
law was in reaction to and by way of critical comparison with Continental institutions
and developments.54
Qualification to the English national specificity of Dicey’s exposition is necessitated
by the actuality of the British Empire and Dicey’s strong sense of it amidst the high
Victorian imperialism of the late-nineteenth century. He extended the rule of law’s
peculiarity ‘to those countries, which, like the United States of America, have inherited
49
Hearn, ibid., Ch. 4, paras 5–8, p. 90.
50
Dicey, The Law of the Constitution, n. 4 above, pp. 97, 115.
51
Ibid., p. 100.
52
Ibid., pp. 100 ff; Ch. 12 of the third and later editions, ibid., pp. 235 ff, 368 ff.
53
Ibid., pp. 116 ff, 119.
54
See Allison, English Historical Constitution, n. 5 above, pp. 172 ff.
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English institutions’.55 Further, he defined constitutional law to embrace ‘all rules which
directly or indirectly affect the distribution or the exercise of the sovereign power in the
state’, including those that ‘define the territory over which the sovereignty of the state
extends and settle who are to be deemed subjects or citizens’.56 For Dicey, the rule of
law was specific to the people of England, to those who exercised or were subject to the
sovereign power in their state, and to English-speaking peoples who, from being subject,
had inherited English institutions.
The English national specificity of Dicey’s exposition of the rule of law is undeni-
able and undisputed, but responses have varied. It has been criticised as parochial,
particularly in its claim to the constitution’s being ‘the result of the ordinary law of
the land’.57 Mark Walters, however, looking below ‘the surface of insular national-
ism’, identifies Dicey’s critique of French droit administratif in particular with the
longstanding view developed by English common lawyers of ‘French public law . . . as
grounded in a theory of law and state that put the executive above the law’.58 Whereas
the superficiality of its nationalism is open to question, at least as evident in the third
meaning Dicey attributed to the rule of law, the national specificity of Dicey’s exposi-
tion and contrast with French administrative law were common to various writers on
the constitution, including those mentioned above. For James Ferris, England was
the ‘[h]appy Island, whose laws have no respect of persons’ and which are ‘secured
[ ] by a wise and well established judicature’ in contrast to judicial interference by
the sovereign’s council and ministers in the late monarchy of France.59 Similarly for
William Hearn, the administration of justice exhibited ‘the peculiar character of our
Constitution’ under which any officer was personally responsible to the ordinary courts
for his acts, in stark contrast to the exemption of officers in France.60 Ferris, Hearn
and Dicey were all engaging in a longstanding critical comparative legal discourse on
English constitutional peculiarity.61
55
56
Ibid., p. 20. On the importance of Empire in understanding Dicey’s constitutional thought,
see Dylan Lino, ‘Albert Venn Dicey and the Constitutional Theory of Empire’ (2016) 36 OJLS
751. On Dicey’s advocacy of the introduction of ‘common citizenship for all Englishmen and
Americans’, see A.V. Dicey, ‘A Common Cizenship for the English Race’ (1897) 71 Contemporary
Review 457, 457; Duncan Bell, ‘Beyond the Sovereign State: Isopolitan Citizenship, Race and
Anglo-American Union’ [2014] Pol. Stud. 418.
57
Dicey, The Law of the Constitution, n. 4 above, p. 119. See, e.g., Loughlin, Foundations of
Public Law, n. 16 above, pp 297, 315-17. It has been called an ‘unfortunate outburst of Anglo-
Saxon parochialism’, Shklar, ‘Political Theory and The Rule of Law’, n. 3 above, p. 5.
58
Walters, ‘Public Law and Ordinary Legal Method’, n. 15 above, 57 ff, 58, 67.
59
Ferris, Standard of the English Constitution, n. 23 above, pp. 9, 18.
60
Hearn, Government of England, n. 23 above, pp. 90, 106-8.
61
See, e.g., Sir John Fortescue, De Laudibus Legum Anglie (written c. 1470) in S.B. Chrimes
(ed. and tr.) (CUP 1942), especially Chs 17, 28–30, 35–36. On the role of discourses on English
peculiarity in the construction of English national identity, see generally R.J. Smith, The Gothic
Bequest: Medieval Institutions in British Thought, 1688–1863 (CUP 1987); Gerald Newman, The
Rise of English Nationalism: A Cultural History 1740–1830 (rev. edn, MacMillan 1997); Linda
Colley, Britons: Forging the Nation 1707–1837 (rev. edn, Yale 2009).
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III. DICEY’S EXPECTATION OF JUDICIAL AND LEGAL

REMEDIAL EFFECTIVENESS
Dicey’s expectation, indeed celebration, of the judicial effectiveness of the constitution

through the availability to the ordinary courts of powerful legal remedies is also well
recognised and can also be briefly stated. For Dicey, rights and remedies were the same
thing viewed from two points of view: ‘A’s right to personal freedom’, for example, was
‘only the right of A not to be assaulted or imprisoned by X, or (to look at the same thing
from another point of view) is nothing else than the right of A if assaulted by X to bring
an action against X’.62 His condescension towards ‘those declarations or definitions of
rights so dear to foreign constitutionalists’ was motivated by his view of the right to
individual liberty in England as ‘part of the constitution’ in being ‘secured by the decisions
of the Courts, extended or confirmed . . . by the Habeas Corpus Acts’.63 Dicey applauded
those acts: ‘The Habeas Corpus Acts declare no principle and define no rights, but they
are for practical purposes worth a hundred constitutional articles guaranteeing individual
liberty’.64
Dicey’s exposition of the rule of law’s second and third meanings was directly aimed at
meeting the expectation of judicial and legal remedial effectiveness. He expounded on the
personal liability of individuals and officials to exemplify equal subjection to the ordinary
law of the ordinary courts,65 and he celebrated the writ of habeas corpus as illustrative of
a constitution that was ‘the result of the ordinary law of the land’ and as ‘the means of
hampering or supervising the whole administrative action of the government’.66
Despite his focus on judicial and legal remedial effectiveness, Dicey’s treatment of the
remedies available was far from comprehensive. The converse of his preoccupation with
the personal liability of officials for official wrongdoing and with the writ of habeas
corpus was his neglect of the other prerogative remedies of mandamus, prohibition, and
especially certiorari by which everyday unlawful government action could be quashed or
set aside.67 Only in the second half of the twentieth century was Dicey’s neglect of crucial
remedies corrected by the writers on English administrative law.68
Dicey’s exposition was not new in its emphasis on judicial remedies and focus on
the writ of habeas corpus. The writings of James Ferris, Homersham Cox and William
62
63
Ibid., p. 116.
64
Ibid., p. 117.
65
Ibid., pp. 100 f.
66
Ibid., pp. 119, 130. For a contrasting, considerably more realistic and less celebratory,
account of what was achieved by courts in granting the writ of habeas corpus, see generally Paul D.
Halliday, Habeas Corpus: From England to Empire (Harvard 2010), especially Ch. 9.
67
References to these writs are extremely rare and, where they occur, they are either indirect
or largely unexplained, Dicey, The Law of the Constitution, n. 4 above, pp. 111, 178; A.V. Dicey,
An Introduction to the Study of the Law of the Constitution (3rd edn, Macmillan 1889), pp. 283 f.
68
See, e.g., J.A.G. Griffith and H. Street, Principles of Administrative Law (Pitman 1952); S.A.
de Smith, Judicial Review of Administrative Action (Stevens 1959); H.W.R. Wade, Administrative
Law (OUP 1961). On the correction, see J.W.F. Allison ‘The Spirits of the Constitution’ in Nicholas
Bamforth and Peter Leyland (eds), Accountability in the Contemporary Constitution (OUP 2013),
pp. 27–56, 38 ff.
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Hearn were similar, although in varying degrees. In his chapter on the ‘judicial power
and proceedings’, Ferris also celebrated the Habeas Corpus Act as ‘a provision to which
every other nation is a stranger – a provision the most abhorrent to despotism; a strong
barrier against the violence and persecution of the crown’.69 Cox’s exposition was more
comprehensive than Dicey’s. In a subsection entitled ‘Methods by which the Supremacy
of the Law is secured’, he expounded on the action of false imprisonment and the writ
of habeas corpus as well as the writs of mandamus and prohibition.70 Further, like Dicey,
Hearn emphasised the personal responsibility of officers for their acts and advice before
the ordinary courts, recognised their additional responsibility through special process
of impeachment on occasion, and admired the ‘steady resolution with which this ideal
equality is practically maintained’.71 Ferris, Cox and Hearn all appreciated the importance
of legal remedy and would surely have agreed that ‘aspiration without action is sterile’,72
especially if left lacking in judicial and legal remedial effectiveness. Dicey only elevated
such effectiveness further, by giving it semantic centrality, by making it central to the third
meaning he attributed to the rule of law, as such and in pride of place.
IV. DICEY’S EXPECTATION OF CONGRUITY OF THE

CONSTITUTION’S FIRST PRINCIPLES
Dicey expounded on the rule of law together with other basic constitutional principles –
the sovereignty of Parliament, the principle of representation in the English system of
government, the ultimate sovereignty of the electorate and the principles of constitutional
morality that make up the unwritten conventions of the constitution.73 Whereas Dicey’s
expectations of English national specificity and of legal remedial effectiveness, as evident
in his exposition of the rule of law, were not particularly distinctive, the same cannot be
said of his expectation that the first principles of the constitution should not only be
ascertained and clarified but also shown to be congruous – harmonious and in accord or
agreement.
A concern with congruity of first principles was largely absent from the works of the
earlier late-nineteenth century constitutional writers – Homersham Cox and William
Hearn – whose expository method approximated to Dicey’s. Cox provided a systematic,
mainly descriptive, account of the functioning of each of the branches of government in
turn (legislature, judicature and administration) to be kept separate ‘to a specified extent
. . . in order to secure the fulfilment of the purposes for which they are established’.74
69
Ferris, Standard of English Constitution, n. 23 above, pp. 16 ff, 22.
70
Cox, Institutions of English Government, n. 23 above, pp. 438 ff.
71
Hearn, Government of England, n. 23 above, p. 88. See also pp. 9 f., 99 ff.
72
Bingham, Rule of Law, n. 3 above, p. 173.
73
See generally Dicey, The Law of the Constitution, n. 4 above, pp. 20 ff, 27 ff, 47 f., 185 ff, 191
ff; Dicey, Comparative Constitutionalism, n. 17 above, pp. 214 ff.
74
Cox, Institutions of English Government, n. 23 above, p. x1iii. His earlier work was similarly
descriptive of what today might be called a system of checks and balances. Its ‘chief purpose’ was
‘to examine the relations between [the British government’s] various parts – to exhibit the system of
responsibility and mutual control, by which each civil institution is invested with power adequate
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Hearn did seek to investigate and expound on principles, such as the supremacy of the law
and the personal liability of officers, but did so in a work that was otherwise descriptive
of structure and function. His aim was ‘to describe the principal parts of our political
organism and their mutual relations’, ‘to ascertain what the Constitution of England now
is, and how it became what it is’.75 His work contains a chapter entitled ‘The Harmony of
the Several Powers in the State’, but it does not deal with the courts, only with relations
between Crown and Parliament, and between its two Houses.76
In contrast, so as to map out ‘a province of law which has not yet been reduced to
order’, Dicey searched ‘for the guidance of first principles, three of which he claimed,
as we look for a clue through the mazes of a perplexed topic, . . . gradually become apparent’:
‘first, the legislative sovereignty of Parliament, secondly, the universal rule . . . of ordinary
law, and thirdly, . . . the dependence in the last resort of the conventions upon the law of the
constitution.77
Posed as first principles through the guidance of which the subject was to be reduced to
order, they had to be reconciled or rendered harmonious. Their reconciliation or harmony
was Dicey’s imperative. Two attempts at reconciliation were fundamental to his exposition
in The Law of the Constitution.78
Dicey made his first attempt in elevating reconciliation to the level of first principle.
Admitting that ‘here . . . we tread on more doubtful and speculative ground’, he posed
the dependence of constitutional conventions on the law of the constitution as the third
principle in his statement of first principles.79 Distinguishing constitutional conventions
from constitutional law by the lack of judicial enforcement or recognition of conventions,
he sought to explain the enforcement of individual or official obedience to them. His
explanation was that breach of convention would ‘almost immediately bring the offender
into conflict with the Courts and the law of the land’.80 Citing the convention ‘that
Parliament must assemble at least once a year’, he argued that, if Parliament did not so
assemble, the whole of government would end up having to act without being authorised
by Act of Parliament.81 Whereas Dicey’s distinction between law and convention has
long been and remains controversial,82 his sweeping explanation for the enforcement of
obedience to conventions has at the same time been widely rejected as flawed and wholly
for the exercise of its jurisdiction, and is restrained from exceeding it’, British Commonwealth, n. 37
above, p. 566.
75
Hearn, Government of England, n. 23 above, pp. 12, 14.
76
Ibid. Ch. 7.
77
78
For a third basic attempt, less relevant to Dicey’s exposition of the rule of law, see his
elaboration on the ‘one ultimate object’ of all constitutional conventions as giving effect to the true
political sovereignty of the electorate or ‘what is called abroad the “sovereignty of the people”’,
Dicey, The Law of the Constitution, n. 4 above, pp. 191,192. See also ibid., pp. 43, 48.
79
Ibid., p. 25.
80
Ibid., pp. 196 ff, 199.
81
Ibid., pp. 199 ff, 199.
82
Cf., e.g., Ivor Jennings, The Law and the Constitution (first published 1933, 5th edn, Hodder
and Stroughton 1959), Ch. 3, pp. 103 ff, 117 ff; William A. Robson, ‘Dicey’s Law of the Constitution:
A Review’ (1939–40) 38 Mich. L. Rev. 205, 206; Geoffrey Marshall, Constitutional Conventions: The
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unconvincing, applicable only to a few conventions of fundamental importance, not to

conventions in general or as such.83 Despite its weakness, Dicey nonetheless advanced the
argument to reach his unequivocal conclusion:
The English constitution in short, which appears when looked at from one point of view to be a
mere collection of practices or customs, turns out, when examined in its legal aspect, to be more
truly than any other polity in the world, except the Constitution of the United States, based on
the law of the land.84
Dicey’s argument was an ambitious attempt to reconcile the customary practices that
make up the conventions of the constitution with the law of the constitution, ultimately
by subordinating the one to the other.
Dicey made his second attempt to reconcile first principles in concluding his treatment
of the rule of law. He identified and explained a relation of mutual support between the
rule of law and the sovereignty of Parliament. He argued, on the one hand, that the ‘sov-
ereignty of Parliament favours the supremacy of the law’ in that the ‘will of Parliament
can be expressed only through an Act of Parliament’ (the formal product of collaboration
of its constituent parts of Crown, Lords and Commons), and its enactments are therefore
always subject to judicial interpretation.85 He argued, on the other hand, that the ‘rule of
law favours Parliamentary sovereignty’ through the judicial interpretation of the words
of an enactment and through the exceptional parliamentary legislation needed to avoid
the executive’s constantly being hampered by the ‘rigidity of the law’ as interpreted by
the courts.86
Dicey’s attempt at reconciliation has been variously viewed. From one perspective, it is
‘specious’87 whereas from another, it is the route to ‘proper reconciliation, rightly empha-
sising the centrality of the interpretative role of the judiciary’.88 Dicey’s own progress
en route to reconciliation, however, was at worst inconsistent and at best precarious in
its reliance on the sufficiency of judicial flexibility/rigidity in interpreting the words of
Parliament’s enactments to avoid conflict with the rule of law. Dicey presented exceptional
legislation as the answer to what he himself described as the ‘rigidity of the law’ resulting
Rules and Forms of Political Accountability (OUP 1984), pp. 12–17; Allan, Sovereignty of Law, n. 13
above, pp. 49–50; Walters, ‘Public Law and Ordinary Legal Method’, n. 15 above, 80 ff.
83
See, e.g., W. Ivor Jennings, The Law and the Constitution (1st edn, University of London Press
1933), pp. 99 ff; E.C.S. Wade, Introduction in E.C.S. Wade (ed.), Introduction to the Study of the Law
of the Constitution (9th edn, Macmillan 1939), pp. cx1v f.; Colin R. Munro, ‘Laws and Conventions
Distinguished’ (1975) 91 LQR 218, 220 ff. Dicey himself later differentiated the consequences of
violating different classes of convention but only in a footnote, and his sweeping explanation for
enforcement of obedience to conventions remained unchanged, Dicey, The Law of the Constitution
(3rd edn, 1889), n. 67 above, pp. 26 f., n. 2, pp. 368 ff. See Lino, ‘Dicey and the Constitutional Theory
of Empire, n. 56 above, 777, n. 182. Cf. Marshall, Constitutional Coventions, n. 82 above, pp. 5–7.
84
85
Ibid., p. 180. See Ch. 13 of the 3rd and later editions.
86
Ibid., pp. 182 ff, 182.
87
O. Hood Phillips, ‘Dicey’s Law of the Constitution: A Personal View’ [1985] PL 587, 591.
88
Allan, Sovereignty of Law, n. 13 above, pp. 206 f., 206. See also T.R.S. Allan, Constitutional
Justice: A Liberal Theory of the Rule of Law (OUP 2001), pp. 13 ff, 201 ff, 214 f.; Allan, ‘Dworkin
and Dicey’, n. 14 above, 269.
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from judicial interpretation.89 Throughout The Law of the Constitution, he also repeatedly
depicted exceptional legislation as overriding or conclusive in its effect, thus assuming
substantial judicial acquiescence.90 In a mere footnote, as if obvious or uncontentious, he
flatly rejected the doctrine that ‘an Act of Parliament cannot overrule . . . the principles
of the common law’ as never ‘having received systematic judicial s anction’ and as ‘now
obsolete’.91
Dicey’s further attempts at reconciliation came at a cost. In his exposition, by virtue
of judicial interpretation’s being restricted to the words of parliamentary enactment, the
courts were respecting the ‘[u]nlimited legislative authority of Parliament’, the ‘theoreti-
cally boundless sovereignty of Parliament’ in the legal sense of the lack of any legal limit
on lawmaking.92 From Parliament’s sovereignty in the legal and theoretical sense, Dicey
distinguished its sovereignty in a political sense in which, through the representative
system, ultimately the electorate was sovereign, and its actual exercise was subject in prac-
tice to various external and internal limits. Dicey’s attempted reconciliation of the rule of
law with parliamentary sovereignty was at the cost of a problematic artificial distinction
between legal and political senses of sovereignty. In both senses sovereignty is denoted but
in each also denoted is a contradistinguished attribute. Sovereignty then is constructed as
unlimited and theoretical in the legal sense but conversely as limited and actual (or practi-
cal) in the political sense. That the distinction must have become problematic to Dicey is
evident in his comparative constitutional lecture on representative government. By way
of an extended analogy between agency in private law and representation in Parliament,
he argued that, ‘just as no man can in private life constitute a universal agent . . . so
the people of a country never will and never in reality can transfer to a representative
assembly absolute, unlimited, irrevocable authority to act for the nation’.93 He concluded
that, ‘representation, being nothing else than agency, involves in its very idea a tacit limit
on the power of a representative . . . Parliament’ and that ‘[e]ven in England the authority
vested in Parliament is rather indefinite than absolute’.94 In recognition of the ultimate
popular sovereignty of the electorate, Dicey thus later contemplated theoretical, legal
(or quasi-legal, by analogy) and indefinite limits to Parliament’s sovereignty in its legal
and/or political senses, which he did not specify, and with legal and/or practical political
implications, on which he did not (or could not) much elaborate.
The first of Dicey’s two attempts at reconciling first principles, fundamental to his
exposition in The Law of the Constitution, was flawed and wholly unconvincing, and the
89
90
See, e.g., ibid., pp. 118, 136 f., 159, 162. See Allison, English Historical Constitution, n. 5
above, pp. 162 f., 212. According to Halliday, ‘Dicey could not bring himself to see just how tightly
statute bound his law-making judge’ was in trying to use the writ of habeas corpus to secure the
liberties of the subject, Habeas Corpus, n. 66 above, p. 304. On Dicey’s attempted reconciliation and
its ambiguities, see Loughlin, Foundations of Public Law, n. 16 above, pp. 315 ff.
91
Dicey, The Law of the Constitution, n. 4 above, p. 38, n. 31.
92
Ibid., pp. 28 ff, 41 ff, 28, 46. See J.W.F. Allison, ‘The Westminster Parliament’s Formal
Sovereignty in Britain and Europe from a Historical Perspective’ (2017) 34 (II) Giornale di Storia
Costituzionale 57.
93
Dicey, Comparative Constitutionalism, n. 17 above, pp. 214 ff, 218.
94
Ibid., p. 218. See Allison, Editor’s Introduction, Dicey, The Law of the Constitution, n. 4
above, pp. xxxv ff.
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second was at the cost of a problematic artificial distinction. Evident in their respective
weaknesses was the strength of Dicey’s distinctive expectation of congruity of the English
constitution’s first principles. His strong expectation was that it was ascertainable for sure,
but elusive and not yet convincingly ascertained in his own innovative attempts at its expo-
sition.95 By argument varying greatly in quality, Dicey’s innovative contribution was the
turning, the formal shaping, of the rule of law into an integrated English constitutional
idea, expressive of aspiration at least towards congruence with the constitution’s other
first principles, and suggestive that congruity was at least ascertainable.
V. DICEY’S MULTI-FACETED CONTRIBUTION

Dicey made then, at a minimum, the nominal contribution of what became in English
the standard name – ‘the rule of law’ – for a principle with which to express ideas of legal
certainty and equality. His contribution, however, went much further: it was the turning,
the formal shaping, of the rule of law into an integrated English constitutional idea that
accorded with Dicey’s various expectations or understandings of the English constitu-
tion. His contribution was multi-faceted because his expectations or understanding of
the English constitution were various – expectations of methodical exposition, remedial
effectiveness, congruity of first principles, etc.
Stephen Sedley’s recent book and Trevor Allan’s diverge in recognition of Dicey’s multi-
faceted contribution. Sedley’s dismissal96 of Dicey’s exposition simply and mistakenly
negates Dicey’s contribution in general and his attempts to reconcile the English constitu-
tion’s first principles in particular. In contrast, Allan recognises and elevates what Sedley
negates. Recognition of multiple facets is implicit in Allan’s emphasis on complexity and
contradiction in Dicey’s exposition of the rule of law both ‘as a merely formal doctrine’
and as a liberal normative theoretical interpretation.97 Further, the strength and distinc-
tiveness of Dicey’s expectation of congruity of the constitution’s first principles (evident
in his sustained attempts to reconcile them) are good reasons for Allan to relate Dicey’s
expectation with his own preoccupation with constitutional principles that ‘try to make
sense of the whole constitution, as an integrated legal and political order’.98 Dicey fell
short in his own attempts, as argued above, but Allan can plausibly claim to be developing
further a distinctive facet of Dicey’s rule of law contribution.
Dicey’s purpose in searching ‘for the guidance of first principles’ was to map out ‘a
province of law which has not yet been reduced to order’, as he concluded the outlining
95
Dicey once claimed that the ‘ideal professor’ should be able to convince his students ‘that
the elementary principles of law are ascertainable’, thus not that the principles the professor
was expounding have actually been ascertained, A.V. Dicey, ‘Law-teaching, Oral and Written’ in
Herbert Hensley Henson (eds), A Memoir of the Right Honourable Sir William Anson (OUP 1920),
pp. 84–101, 86. See generally Allison, Editor’s Introduction, Dicey, The Law of the Constitution, n.
4 above, pp. xxxiii f.
96
Lions under the Throne, n. 6 above, p. 271 (see pages 168 f., 169, and n. 12 above).
97
Allan, Sovereignty of Law, n. 13 above, pp. 10 ff, 11.
98
Ibid.
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of his subject at the outset of The Law of the Constitution.99 His stated expository purpose
distinguishes his expectation, inter alia, of the congruity of the constitution’s first prin-
ciples from Allan’s comprehensive and consistently substantive or normative pursuit of
integrity of an entire legal and political order.100 Dicey’s expectation of such congruity was
distinctive and important but only one of his various expectations and understandings of
the English constitution. Dicey’s turning of the rule of law into an English constitutional
idea was a multi-faceted contribution, one facet of which was methodical exposition
(arguably analytical and descriptive), another remedial in orientation (arguably positiv-
ist in equating right and remedy) etc. Allan is highly selective in his focus on only one,
normative (arguably interpretivist), facet of Dicey’s contribution. The transparency of
Allan’s selection, however, through his recognition of its multiple facets, makes of The
Sovereignty of Law in its treatment of Dicey, by virtue of that facet, a plausible norma-
tive interpretation (allowing for other such interpretations), not a disguised distortion or
invention101 of constitutional authority.
In interpreting Dicey’s multi-faceted contribution, strength of connection or correla-
tion by virtue of one facet, as shown above, is itself further reason not to create suspicion
of interpretivist distortion by unnecessarily overstating that connection or by ignoring or
negating other important facets.102
99
Note 4 above, p. 25.
100
Dicey’s purpose (to map and reduce to order) similarly distinguishes his preoccupation with
congruity from the comprehensive pursuit of integrity in Dworkin’s interpretivism. See generally
Walters, ‘Public Law and Ordinary Legal Method’, n. 15 above, 78 f.; Allan, ‘Dworkin and Dicey,
n. 14 above; Allan, Sovereignty of Law, n. 13 above, pp. 10 ff, 50 ff.
101
See generally Lakin, ‘Defending and Contesting the Sovereignty of Law’, n. 13 above.
102
See also Chapter 9 above.
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11. The rule of law and the rise of capitalism
Tor Krever
The collapse of the Soviet Union in the late 1980s saw Western economists rush eastwards
to implement a new market economy and introduce capitalism to the former Soviet Bloc
states. Many advocated what came to be known as ‘shock therapy’ or ‘Big Bang’ reforms;
the rapid liberalisation of the economy, deregulation of prices and mass privatisation.
In Russia alone, between December 1991 and July 1994, some 70 per cent of Russian
industry was privatised.1 The reformers shared a faith that in the wake of rapid reform,
a functioning market economy would develop quite naturally.2 Instead, hyperinflation,
mass shortages, political instability, a collapsing currency, and social stratification on an
unprecedented level followed. The problem, shock therapy’s advocates quickly insisted,
was due not to any failing in the neoliberal policies of privatisation and liberalisation, but
rather to the absence of a secure institutional environment and the rule of law.
In identifying the rule of law as a necessary prerequisite for the rise of capitalism,
neoliberal reformers could draw on a longstanding tradition with its roots in the social
theory of Max Weber. Weber argued that the operation of a capitalist market requires
a high level of predictability and calculability for economic actors, the product of what
Weber called ‘legal rationality’. Subsequent writers have identified in Weber’s notion of
legal rationality the kernel of the later economic reformers’ idea of the rule of law.
Weber was not the only theorist to reflect on the relationship between law and the rise
of capitalism. Karl Marx also offered some insights in the context of his wider-ranging
theorisation of capitalism and its historical origins, although in his view, the rule of law
was not the basis on which capitalism developed but instead a product of the latter. Like
Weber, though, Marx also contributed the basis for a diverse tradition which continued
to expand upon his incipient theorisation of law and capitalism.
While these two traditions invite juxtaposition with one another, neither is itself mono-
lithic or without internal contradiction. The Marxist variation, in particular, is fractious
and has historically been marked by numerous splits and disagreements. But any attempt
to offer a theoretical résumé of the relationship between the rule of law and the rise of
capitalism faces a further complication. Although both make important contributions to
understanding this relationship, neither Weber nor Marx wrote specifically of the rule of
law, concerned instead with law and the legal system more generally.
Those scholars who do write specifically of the rule of law often invoke markedly dif-
ferent ideas, institutions, and arrangements with this epithet. Danilo Zolo has written that
‘it would be naïve to seek a semantically univocal and ideologically neutral definition of
1
Karla Hoff and Joseph E. Stiglitz, ‘After the Big Bang? Obstacles to the Emergence of the
Rule of Law in Post-Communist Societies’ (2002) 94(3) The American Economic Review 753.
2
Jeffrey Sachs argued, for instance, that ‘markets spring up as soon as the central planning
bureaucrats vacate the field’. Jeffrey Sachs, Poland’s Jump to the Market Economy (MIT Press
1993) xiii.
184
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The rule of law and the rise of capitalism 185
the “rule of law”’.3 A quick glance at the other contributions in this volume is enough to
reveal the plasticity of the epithet. A plurality of meaning also characterises debates about
capitalism, understood by some as merely a system of competitive markets and by others
as, say, a distinct mode of production based on the extraction of surplus value through
the exploitation of wage labour.
With such caveats in mind, this chapter attempts to chart a course across this complex
and contradictory terrain. It offers a brief mapping, necessarily abbreviated, of the two
most prominent theoretical traditions which have sought to understand the relationship
between the rule of law and the rise of capitalism. It begins with a discussion of Weber’s
contribution before tracing the contours of a genealogy of what I call the neo-Weberian
tradition, an arc which passes through the modernisation theories of Talcott Parsons
and the Law and Development movement and ends at contemporary theories of ‘good
governance’ now dominant in the major international financial institutions (IFIs). The
chapter then turns to an alternative tradition of thought. It sketches an outline of Marx’s
insights on law and its origins in capitalism before discussing two prominent approaches
to this relationship which build on Marx’s own lapidary remarks. The first emphasises
class struggle in the shaping of a capitalist rule of law, while the second traces the very
legal form itself to the rise of capitalism. The chapter concludes with a brief discussion
of the political stakes involved in these debates.
MAX WEBER AND THE ORIGINS OF CAPITALISM
Max Weber is one of the most influential theorists to explore the relationship between law
and capitalism. His ruminations on law emerged from his broader interest in explaining
the emergence of industrial capitalism in Europe. Why, he asked, had capitalism developed
in the West but not other parts of the world? What was unique about European society
that was conducive to capitalism’s development?
One answer for which he is particularly well known was religion: the Protestant ethic,
with its encouragement of work in the secular world and a concomitant ‘impulse to acqui-
sition, pursuit of gain, of money, of the greatest possible amount of money’, left its stamp
on the developing political economies of northern Europe.4 But Weber also placed great
emphasis on the role of law. Specifically, he argued, European law was more conducive
to the development of a capitalist economy than the systems of social regulation found
in other parts of the world.
On Weber’s view, capitalism, that ‘most fateful force in our modern life’, was identified
with ‘the pursuit of profit, and forever renewed profit, by means of continuous, rational,
capitalistic enterprise’.5 Trade and exchange might be found throughout history, but
a rational and systematic approach to economic activity, Weber argued, was a much
more recent development. Moreover, it was a development that required a particular
3
Danilo Zolo, ‘The Rule of Law: A Critical Reappraisal’ in Pietro Costa and Danilo Zolo
(eds), The Rule of Law: History, Theory and Criticism (Springer 2007) 3, 5.
4
Max Weber, The Protestant Ethic and the Spirit of Capitalism (Talcott Parsons tr, first
published 1930, Routledge 2001) xxxi–xxxii (emphasis in original).
5
Weber (2001) xxxi.
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institutional basis, one which provided the high degree of calculability needed for a system
of rational and continuous accumulation. Only in Europe, Weber maintained, could one
find the requisite ‘legal rationality’ offered by a system of formal law and the predictable
and rational administration of justice. ‘Modern rational capitalism’, he explained, ‘has
need, not only of the technical means of production, but of a calculable legal system and
of administration in terms of formal rules.’ This system alone could support ‘rational
enterprise under individual initiative, with fixed capital and certainty of calculations’ and it
had existed ‘in a comparative state of legal and formalistic perfection only in the Occident’.6
How did rational law differ from other forms of law, such as those found in extra-
European civilisations? Rules and commands regulate all societies; what set Europe apart
was the source of those rules’ legitimacy. Weber identified three sources of authority:
the legitimacy of law might rest on the perceived sanctity of immutable tradition; on
the ‘sanctity, heroism or exemplary character’ of an extraordinary, charismatic leader;
or on ‘a belief in the legality of enacted rules’.7 As David Trubek observes, each form
of authority is associated with an attendant form of judicial process, but under the first
two, law is legitimised ‘by something, as it were, outside itself’. Law, in a generic sense,
becomes ‘rational law’ only when it becomes ‘its own legitimising principle, and the basis
of all legitimate domination’.8 Rules are obeyed because they are believed to be rationally
enacted, not simply a ‘received corpus of unvarying tradition’.9
More specifically, legal rationality is identified with a system of established norms of
general application.10 A body of law consists in ‘a consistent system of abstract rules’ with
authority figures subjected to ‘an impersonal order’ and enjoying obedience by virtue of
that order alone and the ‘rationally delimited jurisdiction’ thereunder established.11 These
characteristics set the European legal tradition apart. Surveying various extra-European
systems of social regulation, Weber concluded that none had ‘the strictly systematic forms
of thought, so essential to a rational jurisprudence’ found in the West.12 Only in the latter,
he insisted, had a ‘primitive legal procedure’ rooted in irrationalism and revelation given
way to a ‘specialised juridical and logical rationality and systematisation’.13
If the rise of capitalism in the West rested on a rational rule of law, from where did that
legal base come? Importantly, Weber’s arguments about the relationship between law and
capitalist development were not mere theoretical abstractions but were rooted in a close
study of history. A rational legal system, no less than capitalism, was the product of a long
6
Ibid., xxxviii (emphasis added).
7
Max Weber, Economy and Society: An Outline of Interpretive Sociology (Guenther Roth and
Claus Wittich eds, first published 1922, University of California Press 1978) vol 1, 215.
8
David M. Trubek, ‘Max Weber on Law and the Rise of Capitalism’ (1972) Wisconsin Law
Review 720, 732. Weber further distinguished between two types of legal rationality, substantively
rational law and formal rational law. See Roger Cotterrell, Law’s Community: Legal Theory in
Sociological Perspective (Clarendon Press 1997) 143.
9
Trubek (1972) 724.
10
Trubek has argued that ‘Weber’s notion of legal rationality really measures the degree to
which a legal system is capable of formulating, promulgating, and applying universal rules.’ Trubek
(1972) 727.
11
Weber (1978) vol 1, 217–18.
12
Weber (2001) xxix.
13
Weber (1978) vol 2, 882.
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process of historical development and contingent forces and conditions. Already in the
formal reasoning of early Roman law Weber located the rational kernel of Western legal
systems. Later, the Catholic Church’s bureaucratisation promoted legal formalisation,
encouraging a more rational canon law than found in other theocratic legal traditions.14
And still later, the continued rationalisation of Western law went hand in hand with the
emergence of the modern bureaucratic state and the separation of secular law and religion
it entailed.
Uncoupled from other sources of normative ordering, law could operate ‘like a techni-
cally rational machine’,15 applied through formal procedures with legal decisions deter-
mined with reference to universally applied general rules, not arbitrary or politically or
religiously influenced ad hoc reasoning. Such features, today associated with a rule of law,
rendered the legal system predictable, its impress on economic life easily calculable and
economic uncertainty minimised. Moreover, Weber insisted, only this modern, rational
legal system could provide the necessary calculability for industrial capitalism to emerge.
The rationalisation and systematisation of the law, allowing for greater calculability of
legal processes, constituted, Weber wrote, ‘one of the most important conditions for the
existence of economic enterprise . . . and, especially, capitalistic enterprise, which cannot
do without legal security.16
THE NEO-WEBERIAN TRADITION
When Weber died in 1920, his scholarly reputation remained rather limited, even within
Weimar Germany. Both major works for which he is today best known—Economy and
Society and The Protestant Ethic and the Spirit of Capitalism—remained in manuscript
form, edited and published only posthumously by his wife Marianne. International
recognition came only with Talcott Parsons’s translation of The Protestant Ethic into
English in 1930. Parsons, one of the most influential US sociologists of the twentieth
century, did much to disseminate Weber’s ideas making Weber a universal point of
reference in today’s academy. ‘Less a distinct tendency or school than an ether in which
the social sciences are bathed’, writes Peter Thomas, Weber’s ‘generic concepts—“the
Protestant ethic”, “charismatic leadership”, “rationalisation”, “disenchantment” and
“ideal types”—have entered the lexicon of modern intellectual life’.17 Yet in the hands
of Parsons and subsequent interpreters, many of Weber’s ideas became stripped of their
formative contexts and historical nuance.
Modernisation Theory and the Law and Development Movement
Among the ideas taken up by Parsons, the purported relationship between law and
capitalism was central. Building on Weber, Parsons sought to generalise and systematise
14
The importance of these developments for Weber is discussed in greater detail by both
Trubek (1972) 738 and Cotterrell (1997) 145–6.
15
Weber (1978) vol 2, 811.
16
Weber (1978) vol 2, 884.
17
Peter Thomas, ‘Being Max Weber’ (2006) 41 New Left Review 147.
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the former’s theory of social change.18 A generalised and rational legal order, Parsons
suggested, was the marker of modernity, distinguishing it from earlier social formations.
‘[T]he institutionalisation of [law] marks the transition from intermediate to modern
societies’, Parsons wrote. ‘Its organisation must be generalised according to universalistic
principles. This requirement precludes such imposing systems as the Talmudic law or that
of traditional Islam from being classed as modern law. They lack the generality which
Weber called formal rationality.’19
Here, though, was precisely the type of general theory of social development which
Weber had refused. As Chantel Thomas observes, Parsons ‘transposes Weber’s historical,
heuristic analysis onto the prescriptive frame of modernisation theory’.20 Modernity,
and capitalism, here are identified with societies that develop autonomous, rational legal
orders. Parsons thus takes Weber’s insights on rational law but generalises from Weber’s
historically specific insights on European development to all societies, to make the
development of formal rationality and a rational rule of law the ‘criterion of modernity’.21
Highly influenced by Parsons, the ‘Modernisation’ theorist Walt Rostow took Parsons’
systematisation further. In Rostow’s hands, Weber’s historical analysis became further
hollowed out, reproducing Parson’s elisions in sketching a simplistic universalism in which
Rostow reduced social change—including the emergence of capitalism—to a series of five
stages of economic growth: traditional society, ‘preconditions for take-off’, ‘take-off’, the
‘drive to maturity’, and an ‘age of high mass consumption’.22
Rostow’s modernisation theory also retained the Weberian centrality of a stable legal
order, but further reduced it to a ‘one-size-fits-all’ theory of capitalist modernity. As
Thomas remarks of Rostow’s work, ‘[w]ith respect to economic development, such a
stable legal system is necessary particularly because it enables the predictable and effective
enforcement of “background” rules necessary for capitalist economic growth, especially
contract and property rights’.23
The sociology of Parsons and Rostow directly influenced the (primarily US) Law and
Development movement of the 1960s and 1970s. Weber, via Parsons and Rostow, had
argued that capitalism required a rational, rule-oriented legal system to provide security
and predictability for market actors in economic exchange. It followed that law—and
legal reform—could in turn contribute to, and be harnessed for, capitalist development.
Law reform—the promotion of a Weberian, rational rule of law—became a central plank
of US foreign policy which sought to ‘harness [. . .] American knowledge and resources
to the developmental task’.24 Drawing on modernisation theory’s deterministic model
18
See Talcott Parsons, The Structure of Social Action (Free Press 1967).
19
Talcott Parsons, Societies: Evolutionary and Comparative Perspectives (Prentice-Hall 1966)
27.
20
Chantal Thomas, ‘Re-Reading Weber in Law and Development: A Critical Intellectual History
of “Good Governance” Reform’ (2008) Cornell Legal Studies Research Paper No. 08-034, 87.
21
Trubek (1972) 737.
22
W.W. Rostow, The Stages of Economic Growth: A Non-Communist Manifesto (2nd ed,
Cambridge University Press 1971).
23
Thomas (2008) 85.
24
David M. Trubek and Marc Galanter, ‘Scholars in Self-Estrangement: Some Reflections on
the Crisis in Law and Development Studies in the United States’ (1974) Wisconsin Law Review
1062, 1067.
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of development, Law and Development scholars believed that Western capitalist laws
and legal institutions could be transplanted into less developed countries, accelerating
capitalist development. ‘American legal missionaries’ rushed to Latin America and Africa
with ideas of ‘modernising’ judiciaries and law schools,25 convinced that ‘if exported to
the developing world’, a ‘Westernised “rule of law”’ and US legal culture ‘would hasten
progress towards modernity’.26
The Law and Development movement proved short-lived. By the mid-1970s, many of
the movement’s leading figures had become disillusioned, in particular with the universal-
ising assumptions the movement had inherited from the modernisation theorists. As two
of the movement’s protagonists, David Trubek and Marc Galanter, would later write, the
Weberian model of ‘liberal legalism’ assumed, in the hands of the Law and Development
theorists, ‘social and political pluralism’ where instead in much of the Third World ‘social
stratification and class cleavage’ was the norm. Legal rules, rather than reflecting general
interests, were often ‘imposed on the many by the few and are frequently honoured much
more in the breach than in the observance’. In fact, the model appeared not to even hold
for the United States. Rather than the ‘general rules’ of Weber’s ideal typical rational
legal system, closer scrutiny of the United States found that many laws ‘originate from,
and primarily serve, specific groups’ and that ‘those who apply rules have substantial
discretion . . . to favour certain groups and viewpoints’.27
The New Institutional Economics and ‘Good Governance’
If the Law and Development movement lost traction, Weber’s influence did not. The
Weberian view that law, and in particular rational law, could explain the emergence
and reproduction of capitalism continued to exert an influence on social and economic
theorists. From the late 1980s, the New Institutional Economics (NIE) of Douglass
North and his colleagues began to gain increasing popularity.28 The NIE was greatly
influenced by Ronald Coase, whose work on the ‘nature of the firm’ and the ‘problem of
social cost’ had highlighted the importance of transaction costs for economic analysis.29
The costs of exchange, Coase had shown, were dependent on various institutions in
society—a ‘complicated set of interrelationships’ overlooked by neoclassical economic
theory with its model of individuals engaging in free exchange under a system of laissez
faire markets.30 Like Coase, North argued that the neoclassical model of economics in
fact rested on institutional foundations. To understand economic change and, ultimately,
25
James A. Gardner, Legal Imperialism: American Lawyers and Foreign Aid in Latin America
(University of Wisconsin Press 1980) 11.
26
David Trubek, ‘Law and Development’, in N.J. Smelser and Paul B. Baltes (eds), International
Encyclopedia of the Social and Behavioral Sciences (Pergamon 2001) 8443.
27
Trubek and Galanter (1974) 1081.
28
The prefix distinguished the school from an earlier current of economic thought associated
with thinkers such as Thorstein Veblen, Gunnar Myrdal and John R. Commons.
29
Ronald Coase, ‘The Nature of the Firm’ (1937) 4 Economica 386; Ronald Coase, ‘The
Problem of Social Cost’ (1960) 3 Journal of Law and Economics 1.
30
Ronald Coase, ‘The New Institutional Economics’ (1998) 88(2) The American Economic
Review 72.
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capitalist development, one could not ignore the role of institutions, ‘the humanly devised
constraints that structure political, economic and social interaction’.31
Institutions, North argued, include both ‘informal constraints (sanctions, taboos,
customs, traditions, and codes of conduct), and formal rules (constitutions, laws, property
rights)’.32 It was the latter, in particular the legal protection of property rights, that were
most important to North’s explanation of economic and social change. A rule of law pro-
tecting property rights establishes individual and group incentives of economic behaviour
and exchange. By providing, for instance, credible and efficient contract enforcement,
legal institutions establish a ‘stable . . . structure to human interaction’, reducing transac-
tion costs and creating incentives for rational economic actors to engage in exchange.33
Historically, the legal enforcement of contracts has ‘altered the pay-off to cooperative
activity’, while patent laws have ‘increased the incentive to invent and innovate’ and the
development of a professional judicial system reduced transaction costs in markets.34
An absence of modern legal institutions with clearly defined and consistently enforced
property rights, by way of contrast, leads to high transaction costs and inhibits economic
growth and the development of increasingly complex modes of exchange associated with
modern capitalism.35
In the 1990s, with efforts to transplant capitalism to the former Soviet Bloc, as well as
a continuing project to promote its development in the global South, North’s NIE was
championed by many development institutions. The IFIs, such as the World Bank and
IMF, faced increasing criticism of their structural adjustment programmes and shock
therapy, and sought to explain their failures with an appeal to institutions. The problem
with neoliberal development policy was not due to any failing in the policies of privatisa-
tion and liberalisation but the absence of a facilitating institutional environment and a
lack of ‘good governance’.36
Capitalism promoted economic growth, the new orthodoxy maintained, but its devel-
opment required good governance: ‘a predictable and transparent framework of rules
and institutions for the conduct of private and public business’.37 Neo-Weberian language
featured heavily in this new discourse. In a 1994 report, the World Bank explained that:
Good governance is epitomised by predictable, open, and enlightened policymaking (that is,
transparent processes); a bureaucracy imbued with a professional ethos; an executive arm of
government accountable for its actions; and a strong civil society participating in public affairs;
and all behaving under the rule of law.38
31
Douglas C. North, ‘Institutions’ (1991) 5 Journal of Economic Perspectives 97, 97.
32
Ibid.
33
Douglas C. North, Institutions, Institutional Change and Economic Performance (Cambridge
University Press 1990) 6.
34
Douglas C. North, Understanding the Process of Economic Change (Princeton University
Press 2010) 18.
35
See North (1990) 33 and Douglas C. North and Robert P. Thomas, The Rise of the Western
World: A New Economic History (Cambridge University Press 1973).
36
See, e.g., World Bank, Sub-Saharan Africa: From Crisis to Sustainable Growth (World Bank
1989) 60; World Bank, Governance and Development (World Bank 1992) 1.
37
World Bank, Governance: The World Bank’s Experience (1994) vii.
38
Ibid.
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Central to the good governance agenda is the rule of law which, like governance, is
understood in Weberian terms. The rule of law exists, on the Bank’s view, where the
government is bound by law, where all individuals are treated equally under the law, where
the law is transparent and its enforcement predictable’.39 More recently, the Bank has
opined that ‘[t]here is no substitute for a clear law. A predictable law promotes stability
in commercial transactions, fosters lending and investment at lower risk premiums, and
promotes consensual resolutions of disputes’.40 The World Bank’s Legal Vice Presidency
explains similarly that legal institutions ‘engender investment and jobs’ by providing an
‘environment conducive to economic activities’. For instance, secure property rights and
enforceable contracts enable individuals to ‘take opportunities in business, commerce
and other activities’. The rule of law thus ‘empower[s] private individuals to contribute
to economic development by confidently engaging in business, investments and other
transactions’.41
If the focus on predictability recalls Weber, in other respects the new rule of law
discourse represents a banalisation of his thinking. In the hands of the IFIs, Weber’s
prescription for calculable law loses its historical richness. Increasingly, the rule of law
is equated narrowly with the protection of private property rights and the predictable
enforcement of contract. Already in 1997, World Bank Vice President Wolfensohn had
explained that ‘[w]here private property rights are not protected and where contracts are
not enforced predictably, or where judicial enforcement is unreliable, the private sector
does not believe that the state will enforce the rules of the game’. Economic actors
will not pursue market activity or ‘commit resources in highly uncertain and volatile
environments’.42
The same view can also be found in the work of Hernando de Soto, the writer who has
perhaps done most to popularise this narrow understanding of the rule of law and its
relationship with capitalism. Like the Bank, to which he has served as an adviser, de Soto
argues that capitalist development rests on and requires a predictable legal system. In the
absence of secure property rights, a ‘teeming mass’ of ‘extra-legal small entrepreneurs’
struggles to secure credit to grow its businesses and expand its economic activities.
Confronted with business conflicts, these economic actors likewise have difficult accessing
legal remedies in courts.43 Development cannot occur, de Soto argues, so long as a flawed
legal system stops individuals and their assets from participating in the market. De Soto’s
prescription is the issuance of formal title—land-titling for slum dwellers, for instance.44
By giving the poor formal title to their property, de Soto insists, they can turn their previ-
ously unrecognised capital into liquid capital, creating equity for entrepreneurs in need of
39
World Bank, Initiatives in Legal and Judicial Reform (World Bank 2004) 2–3.
40
World Bank, Principles and Guidelines for Effective Insolvency and Creditor Rights Systems
(World Bank, 2001).
41
World Bank, Legal and Judicial Reform: Observations, Experiences and Approach of the
Legal Vice Presidency (World Bank 2002) 2–3.
42
James D. Wolfensohn, Foreword to World Bank, World Development Report 1997: The State
in a Changing World (World Bank 1997) 36.
43
Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails
Everywhere Else (Basic Books 2000) 229.
44
De Soto’s policy prescriptions for slums are critiqued in Mike Davis, Planet of Slums (Verso
2006).
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credit. ‘In the midst of [the Third World’s] poorest neighbourhoods and shanty towns’, de
Soto writes, there are ‘trillions of dollars, all ready to be put to use if only we can unravel
the mystery of how assets are transformed into live capital’.45
This approach, like that of the IFIs which draw heavily on de Soto’s work, elides much
of the nuance of Weber’s own account of capitalist development. Where Weber offered
a holistic theory of the relationship between a rational legal system or rule of law and
capitalism, today’s legal reformers advocate a universal, one-size-fits-all approach under-
girded by an a priori belief in a single evolutionary path to capitalist modernity. Weber’s
notion of legal rationality has today become an ahistorical abstraction. Private property
and contract constitute the foundation stone of the rule of law, the causal mechanisms
for the development of capitalism.
MARX AND ENGELS ON THE ORIGINS OF LAW
If Weber’s theorisation of the relationship between the rule of law and the rise of capital-
ism remains the dominant influence in contemporary legal and developmental thought,
his is not the only approach to have attracted a following. The origins of capitalism and
capitalist development were also of central concern for Karl Marx. Like Weber, Marx (and
Friedrich Engels, with whom he often wrote) sought to offer a wide-ranging theorisation
of capitalism and its origins rooted in a rich historical study of social formations. Where
the two differed was in the role awarded law in capitalist development. In sharp contrast
with Weber, Marx saw the rule of law not as the basis on which capitalism developed but
rather the product of its development.
Marx and Engels themselves engaged little with specific legal questions and certainly
in no systematic fashion.46 In his ‘Preface to the Critique of Political Economy’, Marx
argued that ‘legal relations as well as forms of state are to be grasped neither from them-
selves nor from the . . . general development of the human mind’. Rather, their roots are
to be found in ‘the material conditions of life.’47
In the social production of their life, men enter into definite relations that are indispensable
and independent of their will, relations of production which correspond to a definite stage of
development of their material productive forces. The sum total of these relations of production
constitutes the economic structure of society, the real foundation, on which rises a legal and
political superstructure and to which correspond definite forms of social consciousness. The
mode of production of material life conditions the social, political, and intellectual life process
in general.48
45
De Soto (2000) 35.
46
A recent overview can be found in Robert Knox, ‘Marxist Theories of International Law’ in
Anne Orford and Florian Hoffmann (eds), The Oxford Handbook of the Theory of International
Law (Oxford University Press 2016), on which I draw in this section. An earlier engagement with
Marx and law can be found in Alan Hunt, Explorations in Law and Society: Toward a Constitutive
Theory of Law (Routledge 1993).
47
Karl Marx, ‘Preface to a Contribution to the Critique of Political Economy’ in Robert C.
Tucker (ed.), The Marx-Engels Reader (2nd ed, WW Norton and Company 1978) 3, 4.
48
Marx, ‘Preface to a Contribution to the Critique of Political Economy’ (1978) 4.
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Marx’s invocation of a foundation (or base) and superstructure metaphor has led to
great controversy and much confusion. The incautious have drawn on Marx’s descrip-
tion to posit a strict determinism in which society’s superstructure—the state, but also
legal relations, the family, ideology, and so on—lacks any autonomy, and is determined
mechanistically by the economic base. Karl Kautsky, for instance, argued that social
development (and any changes in the superstructure) is determined solely by the ‘needs
of production’.49
Such crude determinism, however, was not a feature of Marx’s own writing. As Chris
Harman has observed, ‘[t]he distinction between base and superstructure is not one
between one set of institutions and another, with economic institutions on one side and
political, judicial, ideological etc. institutions on the other’. Rather, it is a distinction
between ‘relations that are directly connected with production and those that are not.
Many particular institutions include both’.50 The development of the productive forces
leads societies to particular stages of historical development—ancient society, feudal
society, bourgeois society—and ‘give[s] rise to specific configurations of the superstruc-
ture’. But this is far from arguing that the economic base will always be ‘the visible, most
important element in any society’.51 The economic structure rather explains ‘why specific
social forms (be they law, politics or religion) “played the chief part” in particular modes
of production’.52
Marx, in other words, argued that different modes of production throw up distinctive
social arrangements. Just as one mode of production gives way to another, so too will
social arrangements evolve, including the shape and role of law. The capitalist mode of
production, Marx understood, was based upon the private ownership of the means of
production, its crystallisation coeval with the development of private property and the
new legal forms it called forth. Both private property and law, Marx and Engels argued in
The German Ideology, emerged ‘out of the disintegration of the natural community’ that
accompanied the passing of early modes of production based on communal ownership.53
New forms of property were thrown up by changing productive relations: ‘feudal landed
property, corporative movable property, capital invested in manufacture’ and ultimately
‘pure private property, which has cast off all semblance of a communal institution’.54 As
communal ownership gave way to individual ownership, Robert Knox observes, ‘it was
necessary to regulate such property relations between individuals—such regulation took
the form of law’.55
The development of new property relations and attendant legal forms was initially
of limited consequence. In the ancient world, ‘the development of private property and
civil law had no further industrial and commercial consequences, because [the Romans’]
whole mode of production did not alter’.56 Private property and law remained similarly
49
Chris Harman, Marxism and History (Bookmarks 1998) 7 quoting Karl Kautsky.
50
Harman (1998) 28–9.
51
Knox (2016) 308.
52
Ibid.
53
Karl Marx and Friedrich Engels, ‘The German Ideology’, in Tucker (ed) (1978) 146, 187.
54
Ibid., 186.
55
Knox (2016) 309.
56
Marx and Engels, ‘The German Ideology’ (1978) 187.
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ndeveloped in feudal society. It was only with the emergence of a capitalist mode of
u
production and bourgeois society, ‘where the feudal community was disintegrated by
industry and trade’, that ‘private property and civil law . . . [were] capable of further
development’.57
In short, Marx and Engels argued that the ‘real development of law’ could occur only
with the ‘rise, extension and systematisation of private property’ which accompanied
the emergence of capitalism.58 If legal relations—as opposed to other relations of
domination—had existed in earlier periods, they were not widespread, confined to small
pockets of social life. Only with the crystallisation of capitalist relations of property could
law and legal relations enjoy dominance. In sharp contrast with Weber, then, who would
later argue that law was the midwife of capitalism, Marx and Engels were adamant that
the causal relationship was reversed: the rule of law was the result of capitalism, indeed
was made possible only by the rise of capitalist property relations.
THE MARXIST TRADITION
Class Struggle and the Origins of Bourgeois Law
While Marx and Engels touched on law only in passing, within a broader study and
theorisation of the state and capitalism, subsequent theorists in the Marxist tradition
have considered law and its relationship to capitalism in much greater detail. Many have
observed that while the emergence of law was determined by the rise of capitalism and
private property, the particular institutional arrangements which constitute the rule of law
were not static. In the Marxist view, legal relations, like the social relations of production
on which they rested, were a site of contestation. The organisation of production—not
only under capitalism but also earlier modes of production—is marked by a division
between classes: ‘those engaged in producing social wealth and those who are able to
appropriate it’:59 slave and slave owners in ancient society; peasants, feudal lords, and
a nascent bourgeoisie in feudal society; and workers and capitalists in capitalist society.
These classes are constantly engaged in struggle and it is from out of that struggle that
changes in the mode of production emerge. As Marx and Engels famously put it, ‘[t]he
history of all hitherto existing society is the history of class struggles’.60
The class struggle under capitalism takes the particular form of conflict between
workers and capitalists, the latter appropriating the surplus value produced by workers
engaging in labour. Indeed, for Marxists, capitalism is not, as in the neo-Weberian tradi-
tion, simply a system of free market exchange and (complex) competitive market activity,
but rather a mode of production established specifically on the basis of ‘free’ wage labour.
Whereas exploitation and the appropriation of surplus labour in feudal societies was
compelled through formal relations of direct servitude and domination, under capitalism
57
Ibid.
58
Knox (2016) 309.
59
Ibid., 308.
60
Karl Marx and Friedrich Engels, ‘Manifesto of the Communist Party’ in Tucker (ed.) (1978)
469, 473.
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it is economic need—the ‘dull compulsion of economic relations’61—which compels the

wage earner to sell her labour.
A system of free wage labour, however, required the overthrow of feudal institutions
and power structures. Peasants had to be shorn of access to the means of production (and
subsistence) through the creation of new property rights—epitomised by the enclosure
of the commons—and power centralised but also depersonalised, absolutist sovereignties
tempered; constitutionalist struggles waged by the bourgeoisie for the rule of law. Sol
Picciotto describes this process as a nascent capitalism in which ‘[s]ocial relations [were]
not yet dominated by the “equal exchange” characteristic of the “dull compulsion of
economic relations”, but by the extensive use of direct compulsion, systematic privilege
or bribery, coercive creation of property rights and labour forces, etc’. To counter this,
Picciotto observes, the bourgeoisie fought for ‘the establishment of the legal subject as
bearer of rights and duties, the establishment of reified property rights and abstract judi-
cial processes’ and ‘the spectacular demonstration of the supremacy of abstract law’.62
Michael Tigar and Madeleine Levy develop a similar, if much richer, historical analysis
which also foregrounds class conflict in the emergence and crystallisation of a bourgeois
rule of law. Legal change, they argue, ‘is the product of conflict between social classes
seeking to turn the institutions of social control to their purposes’.63 In Law and the
Rise of Capitalism, they trace the emergence of the contemporary trade- and commerce-
facilitating rule of law to the bourgeoisie’s historical struggle, across eight centuries of
European legal history, against feudal institutions. The nascent bourgeoisie of Europe
faced a hostile climate in the feudal world: the merchant was ‘an object of derision, scorn,
and even hatred’ and profit was ‘considered dishonourable’.64 The ‘legal system’ under
feudalism—the system which issued orders backed up by institutional force—‘was either
silent about trade or hostile to it’.65 As the bourgeoisie grew and created new commercial
institutions—cities, ports, harbours, banks—they increasingly came into collision with
the economic and political interests of feudal powerholders and the laws and customs
that protected those interests.66
Chafing against a hostile system, this early merchant class sought to establish the
institutional conditions which would permit their trading activities, ‘a system which
guaranteed physical security and made possible credit, insurance, and the transmission
of funds’.67 They fashioned rules and a nascent legal system which could serve their
interests, creating tribunals for the settlement of disputes among merchants, while also
‘wrest[ing] concessions from spiritual and temporal princes in order to establish zones of
61
Karl Marx, Capital: A Critique of Political Economy, Volume One (Ben Fowkes tr, Penguin
Books 1976) 899.
62
Sol Picciotto, ‘The Theory of the State, Class Struggle and the Rule of Law’, in Bob Fine et
al. (eds), Capitalism and the Rule of Law: From Deviancy Theory to Marxism (Hutchinson 1979)
173.
63
Michael E. Tigar and Madeleine R. Levy, Law and the Rise of Capitalism (Monthly Review
Press 1977) xiii.
64
Ibid., 4.
65
Ibid., 5.
66
Ibid.
67
Ibid., 4.
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free commerce’.68 New rules about contract and property were promulgated, accompa-
nied by a new ‘legal ideology which identified freedom of action for businessmen with
natural law and natural reason’.69
Common to these analyses is an argument that the rule of law and legal system reflect
particular class interests. With the consolidation of capitalism, on this view, the legal
order and rule of law comes to reflect and serve the interests of the ruling class, now the
bourgeoisie. Marx himself remarked that ‘the individuals who rule . . . give their will . . . a
universal expression as the will of the state, as law, an expression whose content is always
determined by the relations of the class.’70
Of course, as Robert Fine has argued, ‘the bourgeoisie does not exist in a vacuum but
rather in a definite relation to the other classes of civil society’. The struggle between
classes is not static but in fact ‘depends on the level of development, organisation and
consciousness of each and on the alliances which each is able to forge with other classes’.71
The ways and extent to which class interests are reflected in the law may vary across time,
and are the outcome of a continuous struggle, initially between bourgeois and feudal
interests; later between the working class and bourgeoisie.
Such an understanding was central to the Marxist historian E.P. Thompson’s analysis
of the rule of law and its relation to capitalism. Against those who would see law as merely
a truncheon wielded by the ruling class, Thompson insisted the law was ‘an arena for class
struggle, within which alternative notions of law were fought out’.72 In Whigs and Hunters,
Thompson’s voluminous historical study of the Black Act of 1723, Thompson showed
how the law often did indeed serve the interests of the propertied class. With the Black
Act, he observed, Parliament extended the death penalty to ‘rebellious acts such as deer
stealing, tree cutting, and burning by agrarian rebels, whose traditional legal rights to hunt
and forage on common lands had been curtailed . . . by enclosure laws’.73 Yet at the same
time, Thompson insisted, the rule of law also imposed ‘effective inhibitions upon power’.74
Not merely a tool of class domination or a mirror image of class relations, the rule of law
served power but also subjected ‘the ruling class to its own rules’.75
Thompson is not alone in arguing for the (potentially) progressive content of the law.
If law is a site of contestation, then it can come to reflect a new constellation of class
relations. Just as a bourgeois rule of law emerged with the rise of capitalism, so too can a
socialist rule of law emerge with a post-capitalist social formation—as labour consolidates
its power vis-à-vis capital and the bourgeoisie, the class content of law can be emptied,
the bourgeois rule of law replaced by a socialist rule of law.76 Such a conclusion rests,
of course, on the prior historical understanding that it is the content of the law which
68
Ibid., 5–6.
69
Ibid., 6.
70
Marx and Engels, ‘German Ideology’ (1978) 198.
71
Bob Fine, Democracy and the Rule of Law (The Blackburn Press 20002) 93.
72
E.P. Thompson, The Poverty of Theory and Other Essays (Monthly Review Press 1978) 96.
73
Daniel H. Cole, ‘“An Unqualified Human Good”: EP Thompson and the Rule of Law’
Journal of Law and Society 28 (2001) 177–203 179.
74
E.P. Thompson, Whigs and Hunters: The Origin of the Black Act (Pantheon Books 1975)
266.
75
Ibid., 269.
76
See, e.g., Christine Sypnowich, The Concept of Socialist Law (Clarendon Press 1990).
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is shaped by the rise of capitalism. But that analysis is not shared by all in the Marxist
tradition. A quite different understanding of law’s relationship with capitalism can be
found in the work of the Bolshevik jurist Evgeny Pashukanis.
Pashukanis and the Commodity Form Theory of Law
The Bolshevik jurist Evgeny Pashukanis’ General Theory of Law and Marxism remains
today the most significant Marxist analysis of law. Following Marx and Engels, Pashukanis
suggested that law gained dominance as a mode of social regulation only under capitalism.
But Pashukanis opposed those Marxists who ‘assumed that by simply adding in the element
of class struggle’ to positivist theories of law, ‘they would attain a genuinely materialist,
Marxist theory of law’.77 Such an approach, as seen above, focuses on the class content of law
and ‘exclude[s] the legal form as such from . . . [the] field of observation’.78 On Pashukanis’s
view, it was not simply the bourgeois content of legal rules and the rule of law that was
unique to capitalism, but the legal form itself. Such a form, he insisted was not ‘an inherent or
eternal instrument of social regulation’79 but was in fact ‘relative and historically limited’.80
Social regulation itself was nothing unique to capitalism, but it was only ‘under certain
conditions [that] the regulation of social relations assumes a legal character’.81 These
conditions, Pashukanis suggested, were those of commodity exchange, the commodity
form being that under capitalism through which material exchanges are mediated. Only
with the capitalist mode of production does the product of labour take on the commodity
form. Furthermore, for commodities to be exchanged (through the medium of money),
they must be brought to market by their owners, each recognising the other likewise as
the exclusive owner of her commodities. Each commodity is acknowledged as the private
property of its owner, given freely in exchange for another.
The juridical relationship between exchangers of commodities mirrors this economic
relationship, with each party recognised as legal subjects: formally equal, if abstract,
commodity owners. The juridical relation, as China Miéville puts it, ‘exists in the interface
between humans’ relations with their commodities and concomitant relations with each
other’.82 The legal subject then, Pashukanis observes, is:
an abstract owner of commodities raised to the heavens. His will in the legal sense has its real
basis in the desire to alienate through acquisition and to profit through alienating. For this desire
to be fulfilled, it is absolutely essential that the wishes of commodity owners meet each other
halfway. This relationship is expressed in legal terms as a contract or an agreement concluded
between autonomous wills. Hence the contract is a concept central to law. To put it in a more
high-flown way: the contract is an integral part of the idea of law.83
77
Evgeny B. Pashukanis, The General Theory of Law and Marxism (first published 1924,
Transaction Publishers 2002) 53.
78
Ibid.
79
Michael Head, Evgeny Pashukanis: A Critical Reappraisal (Routledge 2008) 170.
80
Pashukanis (2002) 34.
81
Ibid., 79.
82
China Miéville, Between Equal Rights: A Marxist Theory of International Law (Haymarket
Books 2006) 87.
83
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In other words, ‘[e]very legal relation is a relation between subjects’ and that subject, the
autonomous, formally equal commodity owner, is ‘the atom of legal theory, its simplest,
irreducible element’.84
Exchange, of course, invites dispute and contestation which must be regulated. The
legal form thus emerges specifically to resolve disputes between legal subjects. Indeed, law
for Pashukanis differs from technical regulation precisely in that ‘in the latter singleness
of purpose can be assumed, whereas the basic element in legal regulation is contesta-
tion; two sides defending their rights’.85 On Pashukanis’s view, Chris Arthurs playfully
observes, law starts ‘paradoxically . . . from a law-suit’.86 But it is a form of social
regulation premised on disputes between the ‘sovereign, formally equal individuals implied
by commodity exchange—as opposed to the formally unequal individuals implied by the
hierarchical command relations of (say) feudalism’.87 Law, then, uniquely in the history
of social regulation, must resolve disputes ‘without diminishing either party’s sovereignty
or equality’,88 thus its necessary abstract quality and formal equality of its subjects.
In arguing that the legal form was a peculiarly capitalist institution, the outgrowth of
generalised commodity exchange, Pashukanis did not deny its existence in pre-capitalist
periods, as is clear from his discussion of Roman law. Commodity exchange clearly
predates capitalism and so too law, a function of pre-capitalist markets, but only as
‘embryonic legal forms’ in ‘specific pockets of social life, intertwined with custom, status,
religion and privilege’.89 Only as capitalism came to dominate social relations of produc-
tion, displacing feudal relations, were market relations, and commodity exchange, gener-
alised, with ‘separate casual acts of exchange . . . transformed into expanded, systematic
commodity circulation’.90 So too with law and the rise of the universal legal subject.
It follows, on this approach, that law was not a set of abstract norms imposed upon
social relations—norms which, when arranged appropriately, on the Weberian view,
enabled exchange and increasingly complex market relations—but was itself indissolubly
linked to and thrown up by concrete, material relations. It unfolds, as Pashukanis put
it, ‘not as a set of ideas, but as a specific set of relations which men enter into not by
conscious choice, but because the relations of production compel them to do so’.91
CONCLUSION
The relationship between the rule of law and the rise of capitalism remains contested, the
subject of competing claims and divergent methodologies. This chapter has argued that
two primary traditions dominate the field: one influenced by the work of Max Weber
84
Ibid., 109.
85
Chris Arthur, Editor’s Introduction to Evgeny B. Pashukanis, Law and Marxism: A General
Theory (Ink Links 1978) 9, 15.
86
Arthur (1978) 15.
87
Miéville (2006) 78–9 (emphasis added).
88
Ibid., 79.
89
Knox (2016) 316 (emphasis in original).
90
91
Ibid., 68.
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and the other drawing on the analyses of Karl Marx. Of course, to group often disparate
thinkers like this is to simplify and one should resist the urge to hypostasise any loosely
constructed ‘tradition’.92 And yet clear differences nonetheless divide the two German
thinkers, as well as their intellectual heirs, both in general and specifically on the question
of law and capitalism.
Marx, born half a century earlier, was an ever-present reference for Weber. As Norman
Birnbaum has noted, ‘Weber’s life work may be understood as a desperate encounter with
Marxism, a system of values and explanation from which Weber dissented’, albeit one
‘which he treated with the utmost seriousness and respect’.93 As outlined above, Marx
had insisted that the rule of law, like legal relations and forms of state more generally,
should be understood as shaped by and emerging from the material conditions of life.
Under capitalism, those material conditions are fundamentally different from those
found in earlier social formations: under capitalism alone the organisation of production
is based on a system of free wage labour and the class division of society into workers
and capitalists. These new material conditions—the social relations of production—both
make possible and require corresponding legal relations: a rule of law that can mediate
a system of universal commodity exchange and that reflect the interests of a newly
dominant capitalist class (or some ever-shifting balance between the competing interests
of capital and labour).
Weber, by way of contrast, insisted that causality ran in the opposite direction. The
special features of Western legal systems were not the product of capitalism, but rather
were a necessary antecedent. If material conditions and concomitant capitalist interests
encouraged the development of rational law, he insisted, ‘these interests did not themselves
create that law’.94 Christopher May succinctly summarises Weber’s position: ‘Although
not standing outside of social relations, the rule of law maintains certain formal elements
and practices that are relatively unaffected by socio-economic transformations, indicat-
ing that while law may have influenced the development of capitalism, the law itself as
a (quasi) rational system pre-dates it.’95 From where did this system then come? For
Weber, the emergence of rational law was but one part of a broader move in the West
from religion to rationalisation, the development of the ‘specific and peculiar rational-
ism of Western culture’.96 To the Marxist, of course, this merely begs the question; the
rationalisation that so preoccupied Weber must itself have roots in the changing material
conditions of modernity.
While Marx and Weber’s accounts differ markedly, they are nonetheless both deeply
historical. Both theorists understood the modern capitalist or European legal system to
92
Similarly, many thinkers nominally identified with one or the other tradition owe debts to
both classical thinkers. Lukács, to take just one example, famously drew on both Marx and Weber
for his theory of reification. See György Lukács, History and Class Consciousness (first published
1923, Merlin Press 1967).
93
Norman Birnbaum, ‘The Demon of the Concrete’ (1961) I/8 New Left Review 35, 35.
94
Weber (2001) xxxviii (emphasis added). See also Weber (1978) vol 2, 883: ‘Economic
conditions everywhere played an important role, but they have nowhere been decisive alone and
by themselves.’
95
Christopher May, The Rule of Law: The Common Sense of Global Politics (Edward Elgar
2014) 34.
96
Weber (2001) xxxviii.
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have emerged under specific (although not necessarily the same) conditions, coeval with
and co-constitutive of other social institutions: universal commodity exchange, wage
labour, the modern bureaucratic state, a rationalised system of administration. The rule
of law, on their analyses, could not be abstracted from its concrete historical (and, for
Marx, material) context. While this insistence on historicising legal relations remains true
of later Marxist theorists, the same cannot be said of the neo-Weberian tradition. In the
hands of today’s liberal legal reformers, Weber’s legal rationality has become an ahistorical
abstraction, a one-size-fits-all solution to development undergirded by faith in a single
evolutionary path to capitalist modernity. Secure private property and contract, these
reformers insist, and capitalist development will follow.
At stake here is not simply a debate about different scholarly methodologies; these
competing understandings of the rule of law and its relationship with capitalism carry
clear political implications. If less damning than Marx, Weber was hardly sanguine about
capitalism. Today, few observers fail to recognise that capitalist development creates not
only great wealth but also great inequality, exclusion, dispossession, and disempower-
ment. These are problems undergirded by systemic forces and social relations of which the
capitalist rule of law is one part and to which it contributes.97 To address these problems
requires a fundamental transformation of the social order. And yet the contemporary
Weberian view that the rule of law simply arises out of the structure of modernity breeds
a dangerous fatalism. Capitalist legal relations become reified: static institutions with
universal legitimacy, the immutable technical necessities of the modern rational economy.
The social relations out of which they arise and which they help sustain and reproduce are
mystified or lost from sight altogether. Against such a banalised view of law, emptied of its
political and historical content, the Marxist tradition remains an indispensable corrective.
97
Recent history shows that attempts in the periphery to rapidly introduce capitalist social and
economic modes of organisation and relations of exchange—including a capitalist rule of law—
were followed regularly by outbreaks of dramatic violence. See Tor Krever, ‘International Criminal
Law: An Ideology Critique’ (2013) 26 Leiden Journal of International Law 701; Tor Krever ‘Ending
impunity? Eliding political economy in international criminal law’ in Ugo Mattei and John D.
Haskell (eds), Research Handbook on Political Economy and Law (Edward Elgar 2016) 298.
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PART III
INSTITUTIONS OF THE RULE

OF LAW
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12. The rule of law and its application to the United
Nations
Clemens A. Feinäugle
INTRODUCTION
‘The rule of law applies to the United Nations and should guide all of its activities.’1 This
recent statement by the UN sounds like a wonderful and far-reaching promise:2 Many
States that have been addressees of sanctions imposed by the United Nations (UN) may
have wished more than once to find a convincing argument to stop the Security Council
from adopting measures which in their view were unfair or inappropriate. Others may have
wanted to hold the Security Council accountable for actions under a UN mandate that
caused damage to innocent people.3 Still others have hoped to find a way to ‘democratise’
the composition of and procedure in the Security Council.4 United Nations’ staff, in turn
have an interest in an internal judicial mechanism against the UN as an employer who is
not subject to national jurisdictions5 and, most strikingly, individuals listed as terrorist
suspects have long been hoping for due process and legal protection.6
These examples raise the question whether the rule of law is mere rhetoric or, indeed,
reality in the UN and raises further questions: Why is the rule of law relevant for the UN?
What is the legal basis? Is it binding? And what are its elements? What does the rule of law
mean for sanctions, or the UN administration of territories, and what is its significance
for the internal administration of justice at the UN?
It is important to note that, different from national debates on the rule of law, the
discussion of the rule of law in the UN meets with special (pre)conditions: It is more
difficult to find a common definition; the prominent role of politics in international law
necessarily influences any debate on the rule of law; and the link between the national
1
UNGA, Res 67/1 (30 November 2012) UN Doc A/RES/67/1, para. 2.
2
This is different from the EU where Art. 2 TEU says that the EU is founded on the rule of
law. Still, systemic deficiencies in the rule of law of individual EU Member States are currently dis-
cussed as violations of the rule of law in the EU, see Armin von Bogdandy and Michael Ioannidis,
‘Systemic Deficiency in the Rule of Law: What it is, what has been done, what can be done’ (2014)
51 Common Market Law Review 59 ff. See also Amichai Magen, in this volume.
3
See, e.g., with regard to the UNMIK mission, Behrami and Behrami v France App no
71412/01 (ECtHR, 2 May 2007).
4
See Algeria, General Assembly, 67th session, 5th plenary meeting, Official Records (24
September 2012) UN Doc A/67/PV.5, p 7.
5
See Art. 105 UN Charter; see also Henry Schermers and Niels Blokker, International
Institutional Law, (5th ed, Nijhoff 2011), § 1611.
6
The still most prominent cases in that regard are the Kadi I case, Joined Cases C-402/05 P and
C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission, 2008 ECR
I-6351, and Kadi II, Joined cases C-584/10 P, C-593/10 P and C-595/10 P Commission and Others
v Kadi, 2013 ECR 0000.
203
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and the international levels, especially the dependence of an international organization

on its Member States for its very existence, its mandate and its funding, is of particular
importance.
These special preconditions lead me to a specific analytical choice for this chapter which
is to look at the rule of law under the aspect of legitimacy. The core idea of the rule of
law is that the law rules, which would suggest focussing rather on the legality of UN acts.
However, on the one hand, the international legal order is still a legal order based on the
principle of the sovereign equality of States. While States are subject to certain obliga-
tions under international law, they themselves create such obligations as law-makers; we
would be unable to identify an existing and overarching set of rules binding all subjects
of international law, organizations and States alike. In that sense, the international legal
order only slowly develops in the direction of an order where the category of legality can
more usefully be applied. On the other hand, the law of international organizations and
large parts of the UN doctrine provide that an international organization shall fulfill its
purpose effectively. Since it depends heavily on its Member States for the implementation
of its measures, these measures can only be effective if they are considered legitimate by
its Member States. Thus, the approach of this chapter is to address legitimacy concerns
regarding UN activities and to discuss the role the rule of law plays as a remedy to such
concerns. In that endeavour, the rule of law is understood as a flexible principle which
might help to increase the legitimacy of UN activities and thus their effectiveness and
which might develop, gradually and over time, into a standard of legality for UN activi-
ties.7 We could speak of ‘legal legitimacy’8 in the sense that the rule of law, as discussed
here, is not (yet) exclusively focussed on legal requirements, but can also not be identified
as a purely political legitimacy issue because it has concrete legal effects. At the same time,
typical features of the rule of law, like legal order, stability and equal application of the
law are aspects that enhance legitimacy9 so that a legitimacy perspective lends itself well
as an analytical choice for this chapter.
THE UN DECLARATION ON THE RULE OF LAW
All the expectations and hopes regarding long-awaited changes in the ‘if’ and ‘how’
of various and diverse UN activities cited above seemed to be met in a recent docu-
ment of the UN General Assembly, the ‘Declaration of the high-level meeting of the
General Assembly on the rule of law at the national and international levels’ adopted
7
In a similar sense Armin von Bogdandy, Philipp Dann and Matthias Goldmann, ‘Developing
the Publicness of Public International Law: Towards a Legal Framework for Global Governance
Activities’, in: Armin von Bogdandy, Rüdiger Wolfrum, Jochen von Bernstorff, Philipp Dann, and
Matthias Goldmann (eds), The Exercise of Public Authorities by International Institutions (Springer
2010) pp. 1, 10.
8
Jutta Brunnée, ‘Discussion Following Presentations by Tullio Treves and Rein Müllerson’,
in Rüdiger Wolfrum and Volker Röben, Legitimacy in International Law (Springer 2008), p. 203;
Laurence Boisson de Chazournes, ‘Concluding Remarks. Changing Roles of International
Organizations: Global Administrative Law and the Interplay of Legitimacies’, (2009) 6 International
Organizations Law Review 655, p. 664.
9
Cf. Brunnée, ibid., p. 203.
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The rule of law and its application to the United Nations 205
as a resolution by the UN General Assembly on 24 September 2012 (UN Declaration)

which declares the rule of law applicable to the UN itself and its principal organs.10 The
UN Declaration is the final result of an over 20-year long process in the UN General
Assembly: In 1993, the General Assembly first dealt with the rule of law in the context
of a programme to strengthen national structures that had an impact on the maintenance
of the rule of law.11 In the following years, the Assembly adopted yearly resolutions on
the rule of law. The UN Millennium Declaration of 2000 addressed Member States
encouraging them to respect the rule of law12 and the UN World Summit in 2005 called
for universal adherence to and implementation of the rule of law at both the national and
international levels.13 In the further debate, the Secretary-General also submitted reports
on the rule of law at the request of the General Assembly14 and the Security Council.15
This recurring emergence of the rule of law as a topic at UN meetings represents a
multifaceted discussion recognizing its significance for the UN in different respects
rather than a concerted action with a clear goal. The decision to put the rule of law on
the agenda of a high-level meeting was thus an attempt to finally address the different
dimensions of the rule of law in a comprehensive manner and in one document. The rule
of law is also mentioned in Goal 16.3 of the new Sustainable Development Goals of the
UN which is to ‘[p]romote the rule of law at the national and international levels and
ensure equal access to justice for all.’16
The UN Declaration is, according to its title, a declaration on the ‘rule of law at
the national and international levels,’ denoting at the same time. In addition to that, the
Declaration addresses UN Member States and the UN itself. That means that both the
rule of law at the national level and the rule of law at the international level, different as
they may be in definition and scope, encompass both UN Member States and the UN
itself. Since the concrete design of the rule of law in the national constitutional order of
a UN Member State is a matter of the internal affairs of that State,17 the Declaration’s
reference to the rule of law at the national level can only entail general obligations for
UN Member States, such as accountability to just, fair and equitable laws18 without
prescribing too many details. In contrast, the rule of law at the international level implies
for UN Member States in particular respect for their obligations under international law,
10
See note 1, para. 2.
11
World Conference on Human Rights, Vienna Declaration and Programme of Action, 25
June 1993, para. 69.
12
UNGA, Res 55/2 (18 September 2000) UN Doc A/RES/55/2, para. 9.
13
UNGA Res 60/1 (24 October 2005) UN Doc A/RES/60/1, para. 134.
14
See, e.g., UNGA, Report of the Secretary-General, ‘The rule of law at the national and
international levels’ (12 March 2008) UN Doc A/63/64 (2008).
15
See, e.g., UNSC, Report of the Secretary-General, ‘The rule of law and transitional justice in
conflict and post-conflict societies’ (23 August 2004) UN Doc S/2004/616.
16
UNGA Res 70/1 (21 October 2015) UN Doc A/RES/70/1, p. 25.
17
Samantha Besson, ‘Sovereignty’, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of
Public International Law, (Oxford University Press, 2008) online edition, <www.mpepil.com>,
last visited on 29 February 2016, para. 121. See also UNGA, Report of the Secretary-General,
‘Delivering justice: programme of action to strengthen the rule of law at the national and interna-
tional levels’ (16 March 2012) UN Doc A/66/749 (2012), para. 48: ‘The rule of law is at the heart
of State sovereignty [. . .].’
18
See supra note 1, para. 2.
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e.g., respecting the sovereign equality, territorial integrity and political independence of
all States, or refraining from the threat or use of force if inconsistent with the purposes
and principles of the United Nations.19 Insofar as the Declaration speaks of the applica-
tion of the rule of law to the UN, its rule of law obligation could, in a context where the
UN deals with the national level and legal order, mean that UN peacekeeping operations
when helping with capacity-building in a Member State have to be run in accordance
with their mandates.20 The international rule of law entails for the UN, on one hand,
obligations to act (e.g., to assist countries in conflict and post-conflict situations21) and,
on the other hand, to act in a specific way when taking action (e.g. to target sanctions
carefully22). This chapter will focus only on the rule of law as it applies to the UN organs
themselves.
THEORETICAL CONSIDERATIONS
On the national level, the rule of law has its legal basis – written or unwritten – in
constitutional law which usually lends it binding force. The legal basis for the rule of
law in the United Nations is less evident. The UN Declaration claims that the rule of
law belongs to the universal and indivisible core values and principles of the United
Nations.23 For the rule of law and more particularly for human rights, different articles
of the UN Charter have been discussed as potential legal bases.24According to the
Secretary-General, the rule of law at the international level was the very foundation
of the UN Charter.25 However, the ‘rule of law’ as such is not mentioned in the UN
Charter. The discussion of the binding nature of the rule of law might shed some light,
though, on its legal basis.
The UN Declaration is silent on the question whether the rule of law is binding on the
UN. The UN Declaration is a resolution adopted by the UN General Assembly and as
such in principle non-binding.26 This does not mean, however, that the UN Declaration is
without any legal or practical effects. As an outcome document of a high-level meeting of
heads of state and government that saw broad participation and a unanimous adoption,27
the UN Declaration has strong authority and might be seen to have at least some legal
implications since it purports to set forth legal rules. Still, given the basically non-binding
nature of General Assembly resolutions, some of the main approaches in legal theory,
specifically, the approaches of international public authority, global administrative law,
and constitutionalism, may provide for a basis for discussion here.
19
Ibid., paras 3, 4, 20.
20
Ibid., para. 19.
21
Ibid., para. 18.
22
Ibid., para. 29.
23
Ibid., para. 5.
24
See for an overview Clemens Feinäugle, Hoheitsgewalt im Völkerrecht (Springer 2011) p. 82.
25
UNGA, Report of the Secretary-General, ‘Strengthening and coordinating United Nations
rule of law activities’ (8 August 2011) UN Doc A/66/133 (2011), para. 6.
26
See Henry Schermers and Niels Blokker, International Institutional Law (5th ed, Nijhoff
2011) § 1217.
27
See UNGA, Official Records (24 September 2012) UN Doc A/67/PV.3, p. 3.
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1. International Public Authority
The idea of the approach focussing on international public authority is that international
organizations have acquired increasing competences over recent years which were tra-
ditionally competences at the national level. The use of these competences involved the
exercise of public authority by international organizations, understood as the legal capac-
ity to determine others and to reduce their freedom.28 Since in that regard international
organisations are acting like States, they should have to justify their actions just as States
have to justify their exercise of public authority.29 This approach aims at developing a
legal framework, i.e. legal principles, which shall constrain and moderate public authority
exercised by international organizations.
Applied to the topic of the rule of law in the UN, a good example illustrating the
application of the approach of international public authority is the UN administration
of territories. If a mission is mandated to ‘ensure public safety and order’,30 as in Kosovo,
it is often difficult to identify the applicable law. This legal vacuum31 is detrimental to the
realization of legal certainty as one element of the rule of law.32 UN missions like the one
in Kosovo replace to some extent the local authorities and undertake executive functions;
they act like organs of a nation State. One might argue that in this specific instance the rule
of law should apply in a similar way as in a purely national context. The administration
of territories (as in Kosovo where the task to ‘ensure public safety and order’ is part of
the mandate)33 constitutes one of the clearest exercises of international public authority
by the UN.34 UN Secretary-General Kofi Annan expressed legitimacy concerns when
he said that peacekeepers should be held accountable and not contribute to suffering.35
Regarding a legal framework that could help constrain the public authority exercised
in this instance, Resolution 1244 (1999) provides that the international civil presence in
Kosovo has the responsibility to protect human rights.36 Such human rights obligations
could, for example, be further specified by means of the comparative constitutional and
administrative perspective37 suggested by the international public authority approach.
28
von Bogdandy, Dann and Goldmann, supra note 7, pp. 1, 11.
29
Cf. ibid., pp. 4–5.
30
UNSC Res 1244 (10 June 1999) UN Doc S/RES/1244, para. 9(d).
31
See Thomas Fitschen, ‘Taking the Rule of Law Seriously: More Legal Certainty for UN
Police in Peacekeeping Missions’, Geneva Center for Security Policy Law (GCSP), Geneva Papers,
Research Series No. 9, December 2012, pp. 9 et seq.
32
See the definition of the Secretary-General in UNGA, Report of the Secretary-General,
supra note 17, para. 2.
33
UNSC Res. 1244, supra note 30, para. 9(d).
34
Cf. also Machiko Kanetake, ‘The Interfaces between the National and International Rule
of Law: The Case of UN Targeted Sanctions’ (2012) 9 International Organizations Law Review
pp. 267, 275, 303.
35
UNSC, Report of the Secretary-General, ‘The rule of law and transitional justice in conflict
and post-conflict societies’ (23 August 2004) UN Doc S/2004/616, para. 33; Carsten Stahn, The
Law and Practice of International Territorial Administration (CUP 2008), p. 749, shares this view
with regard to the UN as a holder of public authority.
36
SC Res. 1244, supra note 30, para. 11(j).
37
This comparative approach is only mentioned in this chapter. Details are subject to further
research.
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One drawback of this approach may be that it tends to focus on the exercise of public
authority which typically touches upon substantive elements of the rule of law concerning
the individual, such as human rights; a key element of a thick theory of the rule of law.38
If one does not want to exclude formal elements of the rule of law which might apply
independently of the individual, such as whether the internal rules of procedure of the
UN have to be observed as one consequence of the rule of law, we have to look at other
approaches to see whether they could avoid this problem.
2. Global Administrative Law
Global Administrative Law can be understood as comprising the legal rules, principles,
and institutional norms applicable to processes of ‘administration’ undertaken in ways
that implicate more than purely intra-State structures of legal and political authority.39
The global legal order is seen as a plural order in the sense that it lacks unity and hierarchi-
cal structures.40 Global administrative bodies include, among others, national regulatory
bodies, intergovernmental regulatory bodies, public-private partnerships as well as some
private regulatory bodies.41 The aim of the Global Administrative Law approach is to
promote the accountability of global administrative bodies, in particular by ensuring
that they meet adequate standards of transparency, participation, reasoned decision, and
legality, and by providing effective review of the rules and decisions they make42 as well
as the principle of proportionality.43
Relating to the rule of law, the internal administration of justice in the UN44 would be
a good example here since it triggers questions of the accountability and effective review
the UN, as a global administrative body, would have to provide to its staff. UN staff
are subject to the authority of their superiors and ultimately of the Secretary-General.
The lack of adequate remedies available to UN staff generated legitimacy concerns,
though;45 the former justice system was criticized because it did ‘not provide proper
or adequate remedies and failed to guarantee individual rights’.46 As a consequence, it
38
See for a discussion of a distinction between a ‘thin’ and ‘thick’ rule of law Christopher May
and Adam Winchester, ‘Introduction – The Rule of Law in the Contemporary World’, in this volume.
39
Benedict Kingsbury and Megan Donaldson, ‘Global Administrative Law’, in Wolfrum (ed),
Max Planck Encyclopedia of Public International Law, supra note 16, para. 1.
40
Sabino Cassese, ‘Administrative Law Without the State? The Challenge of Global Regulation’
(2005) 37 New York University Journal of International Law and Politics 663, 673.
41
Cf. Benedict Kingsbury, Nico Krisch and Robert Stewart, ‘The Emergence of Global
Administrative Law’ (2005) 68 Law and Contemporary Problems 17.
42
Ibid., 17.
43
Cassese, supra note 40, pp. 690 ff.
44
See generally Helmut Buss, Thomas Fitschen, Thomas Laker, Christian Rohde and Santiago
Villalpando, Handbook on the Internal Justice System at the United Nations (United Nations
System Staff College 2014).
45
See Benedict Kingsbury and Richard Stewart, ‘Legitimacy and Accountability in Global
Regulatory Governance: The Emerging Global Administrative Law and the Design and Operation
of Administrative Tribunals of International Organizations’, in Katerina Papanikolaou (ed.),
International Administrative Tribunals in a Changing World (Esperia 2008) 1, 15.
46
UNGA, ‘Report of the Redesign Panel on the United Nations system of administration of
justice’ (28 July 2006) UN Doc A/61/205, para. 73.
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did not enjoy the respect of staff, management or Member States,47 resulting in the UN
running the risk of being denied immunity before national courts.48 The justice system
was said to fail to satisfy minimum requirements of the rule of law in being extremely
slow, under-resourced, inefficient and, ultimately, ineffective.49 Therefore, a reform
process was started for which the General Assembly established the ‘Redesign Panel on
the United Nations’ System of the Administration of Justice’ composed of independent
external experts to review the existing system. The Panel found that the justice system
was ineffective due to a lack of independence, financially cost ineffective, and carried
negative reputational and other costs that were enormous. The Panel advised that a new,
redesigned system of internal justice would be far more effective than an attempt to
improve the existing system.50 Following the Panel’s suggestions, the General Assembly
established a new internal justice system51 on the basis of the rule of law. This reform
included classic procedural rule of law elements such as the independence of judges,52
oral hearings, publication of judgments, procedures for maintaining the confidentiality
of statements53 and the option of appeal.54
Global Administrative Law tries to solve such legitimacy concerns regarding admin-
istrative tribunals by helping to define the criteria which best promote legitimacy, such
as participation, transparency, due process, reason-giving, review mechanisms, account-
ability, and respect for basic public law values including rule of law.55 Indicating a binding
effect of the rule of law, Sabino Cassese has stated that principles had developed which
disciplined global administrative proceedings by means of the rule of law, specifically a
right to a hearing, a duty to provide reasons and a duty do disclose information.56
While Global Administrative Law is an open and dynamic approach close to reality
and flexible for adaptations, it is not entirely convincing since the broad inclusion also of
private actors cannot easily be reconciled with the idea of the rule of law which is meant to
guide the exercise of public authority. The approach is also rather political and descriptive
in nature as it enumerates different cases that could be considered global administration
and is at least hesitant to advance to the normative, i.e., legal rules and principles that
could be applicable to these phenomena as binding rules. The rule of law is typically
discussed not in administrative law terms but rather as a matter of constitutional law. I
will, therefore, now turn to constitutionalism.
47
Ibid., para. 73.
48
This happened, e.g., to the West European Union, cf. Kingsbury and Stewart, supra note
45, 15.
49
UNGA, supra note 46, para. 5.
50
See supra note 46, p. 1.
51
UNGA Res 62/228 (6 February 2008) UN Doc A/RES/62/228.
52
UNGA Res 62/253 (17 March 2009) UN Doc A/RES/63/253, Annex I, Arts 4 and 9.
53
Ibid., Annex I, Art. 7.
54
Ibid., Annex II, Art. 7.
55
Kingsbury and Stewart, supra note 45, p 1, 19; agreeing Laurence Boisson de Chazournes,
‘Changing Roles of International Organizations: Global Administrative Law and the Interplay of
Legitimacies’ (2009) 6 International Organizations Law Review 655, 665.
56
Sabino Cassese, The Global Polity, Global Dimensions of Democracy, and the Rule of Law
(Global Law Press 2012) 48.
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3. Constitutionalism
Constitutionalism has been discussed for the international legal order for many decades.
The main idea of this approach is that there is a hierarchy of norms or common values
on the international level which bind international actors and prevail over other rules and
interests.57 The idea of constitutionalism applied to international organizations is that
they would be subject to higher-ranking law and that a constitutional perspective would
thus provide for the necessary control of their acts, especially when they exercise public
authority.58 In particular, the UN Charter is often said to represent the ‘constitution of
the international community’.59 This view has been corroborated by the argument that
the UN is the most important international organization with universal membership,
broad competences, especially under Chapter VII of the UN Charter, and the power of
the Security Council to adopt binding resolutions (Art. 25 UN Charter).
From this perspective, the rule of law could be seen as a constitutional principle binding
the UN in its actions. A prominent example of such actions are targeted sanctions of the
UN by which individuals, for example terrorist suspects, are subject, e.g., to a freezing
of their assets, a travel ban, or an arms embargo. The objections raised against targeted
sanctions in the political arena as well as before national and regional courts mainly
concerned the manner in which individuals were selected for listing without the possibility
of formal review.60 Sanctions thus did not meet the expectations of targeted individuals
and of many States pertaining to adequate procedural safeguards giving rise to concerns
regarding their legitimacy. To remedy such concerns various procedural amendments were
made and the office of the Ombudsperson was established to which a listed individual can
directly access with an application for review and delisting. A constitutionalist view could
help regarding the legitimacy concerns if it is argued that there is a natural connection
between the idea of the rule of law and constitutionalism since both concepts represent
desired conditions and standards of legitimacy.61 The rule of law could be seen as an
element of constitutionalism requiring, among other things, a fair trial,62 or applying
when executing UN sanctions regimes63 which could help alleviate the legitimacy concerns
regarding individual sanctions.
57
Cf. Thomas Kleinlein, Konstitutionalisierung im Völkerrecht (Springer 2012) 315.
58
See Jan Klabbers, ‘Contending Approaches to International Organizations: Between
Functionalism and Constitutionalism’, in: Jan Klabbers and Asa Wallendahl (eds), Research
Handbook on the Law of International Organizations (Edward Elgar 2011), 3, 15.
59
See, e.g., Pierre Marie Dupuy, ‘The Constitutional Dimension of the Charter of the United
Nations Revisited’ (1997) 1 Max Planck Yearbook of United Nations Law 1–33; Bardo Fassbender,
The United Nations Charter as the Constitution of the International Community (Nijhoff 2009).
60
Machiko Kanetake, supra note 34, 283; Simon Chesterman, ‘‘I’ll take Manhattan’: The
International Rule of Law and the United Nations Security Council’ (2009) 1 Hague Journal on the
Rule of Law 1, 67, 70.
61
Francois Venter, ‘The Rule of Law as a Global Norm for Constitutionalism’, in: James
Silkenat, James Hickey and Peter Barenboim (eds), The Legal Doctrines of the Rule of Law and the
Legal State (Rechtsstaat) (Springer 2014) pp. 91, 104.
62
Ibid., pp. 91, 94, 104.
63
Para. 29 of the UN Declaration which stipulates that sanctions must be (a) carefully
targeted, in support of clear objectives, (b) be designed carefully so as to minimize possible adverse
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However, the constitutionalism perspective does not offer much by way of explanation
why the rule of law should apply.64 It also runs the risk of taking a narrow national per-
spective which is not adequate in an international context65 characterized by a heterarchy
of actors (sovereign equality of States) and rules (equal rank of sources of international
law) rather than by hierarchy. In addition, while human rights may be thought of as
common values, it will be more difficult to argue for a constitutional rank for other
elements of the rule of law.
A NEW APPROACH: ‘MODIFIED FUNCTIONALISM’

A different approach could be to focus on the relationship between effectiveness and
legitimacy of UN measures,66 or in other words examine the relationship between
functionalism and constitutionalism,67 and expand the coverage somewhat. I call
the new perspective I suggest here ‘Modified Functionalism’ since it maintains the
hitherto prevailing functionalist view on international organisations while, at the same
time, taking into consideration legitimacy concerns. From this perspective, one might
argue for the binding nature of the rule of law by interpreting the UN Charter using
a teleological68 argument. Article 1(1) UN Charter defines the purpose of the UN as
being to maintain international peace and security and says that to that end, the UN
should take:
effective collective measures for the prevention and removal of threats to the peace, and for the
suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful
means, and in conformity with the principles of justice and international law, adjustment or
settlement of international disputes or situations which might lead to a breach of the peace.
The provision does not, however, mention the rule of law. The context shows that
only the peaceful settlement of disputes mentioned in the second half of the sentence
must conform with the principles of justice and international law which might, poten-
tially include the rule of law. By contrast, these requirements do not seem to apply
to collective measures taken in the interest of international peace and security.69 The
consequences, and that (c) fair and clear procedures have to be maintained can, indeed, be seen as
requiring fair trial in sanctions regimes.
64
Klabbers, supra note 58, pp. 3, 14.
65
Feinäugle, supra note 24, p. 358 (summary).
66
UNGA and UNSC, Annex to the letter dated 18 April 2008 from the Permanent
Representative of Austria to the United Nations addressed to the Secretary-General (7 May 2008)
UN Doc A/63/69-S/2008/270, paras 31 and 32.
67
See on this in many papers Klabbers, supra note 58, 3 et seq., Jan Klabbers, ‘Kadi Justice at
the Security Council’ (2007) 4 International Organizations Law Review 293, 298, and, most recently,
Jan Klabbers, ‘The EJIL Foreword: The Transformation of International Organizations Law’
(2015) 26 European Journal of International Law 1, p. 72.
68
See Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980), 1155 UNTS 331, Art. 31(1), providing for the interpretation of a treaty ‘in light of
its object and purpose’.
69
See recently Kanetake, supra note 34, p. 278.
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Security Council is nonetheless bound70 (by Art. 1(1) of the UN Charter) to take ‘effec-
tive collective measures for the prevention and removal of threats to the peace’. That
such measures must be ‘effective’ is evident from the object and purpose of the UN
Charter.71 Such a teleological interpretation could take into consideration the impor-
tant connection between the Council’s effectiveness and the legitimacy of its acts.72
Since the UN has to rely on its Member States for the implementation of its measures,
these measures can only be effective if they are considered legitimate. 73 Otherwise they
will be resisted and will not be successful. The examples detailed above demonstrate
how concerns regarding the legitimacy of different UN activities made (or may have
made) such UN activities pursuant to the UN’s Charter obligations less effective.
As a result, targeted sanctions have faced legal challenges in Europe, and improvements
have been implemented, on the basis of the rule of law, to remedy these problems. Since
UN activities, especially under Chapter VII, must be effective if the UN wants to fulfil
its purpose (Art. 1(1) UN Charter), the rule of law binds the UN insofar as ‘effective’
measures require that legitimacy concerns are addressed by actions based on the rule of
law.74 Such a teleological interpretation of the UN Charter would locate the rule of law
in Article 1(1) UN Charter so that its legal basis – the question raised above – would be
the UN Charter.
This approach of a Modified Functionalism applying a teleological interpretation of
Article 1(1) UN Charter has several advantages: First, it is flexible in the sense that it
does not impose a strict rule of law (as known from domestic constitutions) on the UN
that could misjudge the political context in which the UN activities are taking place.
Secondly, the rule of law can still be relevant and operative since it is binding to the
extent that the UN could not be effective otherwise. Thirdly, it is not only up to the UN
to decide what is effective but up to those on which the UN is dependent, that is, its
Member States.
IN SEARCH OF A DEFINITION
The question how the rule of law can be defined has been discussed at the national level
for many decades. Things become much more difficult, though, on the international level
70
Andreas Paulus, ‘Article 2’, in Bruno Simma, The Charter of the United Nations, com-
mentary (3rd edn OUP 2012) para. 13; see also Art. 24(2) UN Charter: ‘2. In discharging these
duties, the Security Council shall act in accordance with the Purposes and Principles of the United
Nations.’
71
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980), 1155 UNTS 331, Art. 31(1).
72
This relationship was already rightly highlighted in The UN Security Council and the Rule
of Law, supra note 66, 19. Less convincing seems the argument that the Security Council was most
effective if it ignored any rule of law standards.
73
In that sense, also ibid.: ‘Member States’ preparedness to recognize the authority of the
Council depends in significant part on how accountable it is or is seen to be’.
74
Regarding the internal administration of justice, the Security Council is not acting under
Chapter VII, of course, but effective measures under Art. 1(1) UN Charter require that also staff
concerns are addressed as the UN depends on effective work by its staff.
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since it will not be easy for the UN, as global organization with nearly 200 Member States,
to agree upon one common definition of the rule of law applicable to its diverse activities.
The UN Declaration, currently the most detailed UN document on the rule of law,
does not give a clear answer regarding a definition of the rule of law. This is perhaps
unsurprising though, since the approach of the Declaration to include both the national
and international levels and to address both States and the UN itself renders a universal,
one-size-fits-all, definition impossible. The only element which might be identified with
the necessary clarity is the aspect of proportionality which can be found in paragraph 29
of the Declaration in the context of smart sanctions.75
National models of the rule of law should not carelessly be transposed to the interna-
tional level since the context of the nation State with its constitutional basis cannot be
compared to the international level where an overarching and common legal framework
is missing. Still, several attempts were made to harness the ideas of the national level also
for the international realm and different rule of law elements have been discussed so far:
Lord Bingham counted among his eight sub-rules or principles of the rule of law,
among others,76 that the law must be clear and predictable and be applied equally to all;
that the law must afford adequate protection of human rights; that means must be pro-
vided for resolving disputes and that adjudicative procedures provided by the state should
be fair.77 While these principles were developed for application on the national level, it
has been argued that the rule of law principles could also be applied in the international
legal system.78
Regarding the UN and UN sanctions specifically, Farrall identified five basic rule of
law principles:79 The principle of transparency, requiring that in the exercise of political
power, decision-making should be as open and transparent as possible, with reasons
for applying and modifying sanctions clearly expressed.80 The principle of consistency,
requiring that decisions are made in a predictable rather than arbitrary manner and
that UN practice is consistent from one sanctions regime to another.81 According to the
principle of equality, all parties exposed to political power should be considered equal
before that power and any decisions affecting their rights should be made in an impartial
manner.82 Aligned with the principle of due process which calls for a fair hearing of
75
UNGA, Res 67/1 (30 November 2012) UN Doc A/RES/67/1, para. 29.
76
See for details on Lord Bingham’s sub-rules or principles of the rule of law, Christopher
May and Adam Winchester, ‘Introduction – The Rule of Law in the Contemporary World’, in this
volume.
77
Tom Bingham, ‘The Rule of Law’ (2007) 66 Cambridge Law Journal 67, pp. 69–84;
Robert McCorquodale, ‘Business, the International Rule of Law and Human Rights’, in Robert
McCorquodale (ed.), The Rule of Law in International and Comparative Context (London, British
Institute for International and Comparative Law, 2010), pp. 21, 22f.
78
Robert McCorquodale, ‘The Rule of Law Internationally: Lord Bingham and the British
Institute of International and Comparative Law’, in: Mads Andenas and Duncan Fairgrieve (eds),
Tom Bingham and the Transformation of the Law (OUP 2009), pp. 137, 145; Tom Bingham, The
Rule of Law (Penguin 2011) 111.
79
Jeremy Matam Farrall, United Nations Sanctions and the Rule of Law (CUP 2007) p. 40.
80
See ibid., pp. 40–41.
81
See ibid., p. 41.
82
See ibid.
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the affected individual and the opportunity to express his point of view regarding the
potential decision, as well as the presumption of innocence.83 Finally, in the context of
sanctions, the principle of proportionality which requires that the coercive consequences
of the application of sanctions are proportionate to the harm caused by the target against
which sanctions are imposed and are consistent with the objectives for which sanctions
are employed.84
One year after Farrall’s book was published, the Final Report and Recommendations
of the Austrian Initiative suggested that ‘fair and clear procedures’ to protect individuals
affected by smart sanctions should include, as a minimum; the right to be informed of
measures taken by the Council and to know the case against one, including a statement
of the case and information as to how requests for review and exemptions can be made;
the right to be heard (via submissions in writing) within a reasonable time by the relevant
decision-making body, with assistance or representation by counsel; and the right to
review by an effective, impartial, and independent mechanism with the ability to provide
a remedy, such as the lifting of the measure or compensation.85
In an effort to reconcile the fight against terrorism with the respect for the rule of
law and suggesting that the UN and the EU had to set an example in this regard, the
Council of Europe, in a resolution on UN sanctions, stated that the minimum procedural
standards under the rule of law included; the right for everyone (1) to be notified promptly
and fully informed of the charges against them, and of the decision taken and the reasons
for that decision; (2) to enjoy the fundamental right to be heard and to be able to defend
oneself; (3) to be able to have the decision affecting one’s rights speedily reviewed by
an independent, impartial body with a view to modifying or annulling it; and (4) to be
compensated for any violation of one’s rights.86 The Council added that the blacklisting
procedure should be time-limited and that a clear definition of grounds for the imposition
of sanctions and relevant evidence was required to support those grounds.87
Robert McCorquodale, in turn, suggests that a definition of the rule of law at the
international level is not about strict institutional equating with national law and national
institutions or about compliance with international law. Instead, it should set out the extent
to which the international legal system meets the broad objectives of legal order and stabil-
ity, equality of application of the law, and settlement of disputes before an independent
legal body. It must include the protection of human rights so that it is a rule of law and not
a rule by law. The rule of law is not an all or nothing concept but is a relative concept, in
which compliance is measured in terms of the extent to which participants and activities
comply with the rule of law’s various elements with the aim of fulfilling them all over time.88
83
See ibid.
84
See ibid., pp. 41–2.
85
See Simon Chesterman, The Security Council and the Rule of Law, United Nations General
Assembly Security Council, A/63/69-S/2008/270, of 7 May 2008, recommendation 15, p 27; cf
UNSC, 5474th meeting (22 June 2006) UN Doc S/PV.5474, p 5.
86
Council of Europe, Parliamentary Assembly, Resolution 1597 (2008), ‘United Nations
Security Council and European Union blacklists’ (23 January 2008) Doc. 11454, para. 5.1.
87
Ibid., paras 5.2. and 5.3.
88
See Robert McCorquodale, ‘The Rule of Law Internationally’, in Clemens Feinäugle (ed.),
The Rule of Law and its Application to the United Nations (Nomos 2016).
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This short overview shows that although the different suggestions go in the same direc-
tion, a single definition cannot easily be distilled. The last approach with its flexibility
would fit best with the idea of a Modified Functionalism according to which the UN
is bound by the rule of law (only) insofar as ‘effective’ measures require that legitimacy
concerns are addressed by actions based on the rule of law. It is the definition which seems
most appropriate to take into consideration the special features of the international level,
i.e., its highly political context; the need for flexibility; and the need to acknowledge the
involvement of the national level which the UN has to rely upon for the implementation
of its measures.
CONCLUSION
An analytical study of the rule of law at the UN has to take into consideration the
specific features of the international legal order, i.e., its highly political context; the lack
of an overarching constitutional framework and of the idea of the separation of powers;
and the corresponding need for flexibility as a consequence of the involvement of the
national level of the Member States on which the UN depends given its lack of an overall
competence and on which it has to rely for the implementation of its own measures.
In recent years, there has been an increasing debate on the rule of law in the UN. In
parallel, diverse UN activities have raised explicit legitimacy concerns for which the UN
itself (in the persons of Secretaries-General Kofi Annan and Ban Ki-moon) has suggested
solutions based on the rule of law. This shows that the rule of law is not merely a theoreti-
cal concept but increasingly a topic for UN practice. Neither the quite detailed recent UN
Declaration on the rule of law nor existing legal theory has, however, provided a precise
definition or a clear statement on the legal basis and the binding nature of the rule of law.
A fresh look at Article 1(1) UN Charter offers a new perspective regarding the legal
basis for the rule of law in the UN and its binding nature: This perspective I referred
to as ‘Modified Functionalism’ since it maintains the hitherto prevailing view that the
main goal of an international organisation is to function effectively while, at the same
time, taking into consideration legitimacy concerns. It does so by providing the rule of
law as a remedy. A teleological interpretation of Article 1(1) UN Charter in the light of
the object and purpose of the Charter allows for the principle of the rule of law to be
understood as an essential element of the Charter. Such a teleological interpretation takes
into consideration the important connection between the effectiveness and the legitimacy
of activities of UN organs and agencies, especially those of the Security Council. As the
examples shown above demonstrate, concerns about the legitimacy of different UN activi-
ties made, or might have made, UN activities in pursuit of the UN’s Charter obligations
less effective. And since the UN is bound by Article 1(1) UN Charter to take ‘effective
collective measures’ for which it must rely on its Member States for implementation, it has
to act legitimately, because the measures will only be implemented if they are considered
legitimate. The rule of law thus binds the UN as far as ‘effective’ measures require that
legitimacy concerns are addressed by an application of the rule of law.
This approach has the advantages of being flexible while at the same time binding to
the extent that the UN could not be effective otherwise. Also, the rule of law principle can
still work as a tool of limitation and control of the UN itself since it is not only up to the
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UN to decide what is effective but also those on which the UN is dependent, its Member
States. Thus, for the UN, the rule of law can be seen as a principle which has the function
of attaching legitimacy to its work in order to enable it to fulfil its purpose. Rather than an
overarching principle in the constitutionalist sense, as an end in itself, it becomes a means
to an end.89 The approach of ‘modified functionalism’ sits well with the definition of the
rule of law as suggested by Robert McCorquodale comprising legal order and stability,
equality of application of the law, settlement of disputes before an independent legal body
and the protection of human rights – but as broad objectives and as a flexible, relative
concept which appears to be more suitable in light of the specific features of the existing
international legal order.
This definition and the explanation for the legal basis and the binding nature of the rule
of law provided by the approach of ‘modified functionalism’ thus look like a promising
explanatory model. But only time will tell whether the rule of law and its application to
the United Nation will develop in that direction.
89
In a similar sense Simon Chesterman, ‘An International Rule of Law?’ (2008) 56 American
Journal of Comparative Law 331, 360.
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13. Power rules: The World Bank, rule of law reform,
and the World Development Report 2017
Deval Desai1
Scholars seem to agree that if one wants to understand the trajectory of rule of
law reform, and thus something of what the phrase ‘the rule of law’ means in
today’s world, one must understand what the World Bank thinks and does. This
chapter follows and contributes to that line of thinking, albeit cautiously. I consider
what the publication of the World Development Report 2017: Governance and Law
(WDR 2017) might mean for the World Bank’s evolving approach to rule of law
reform.2
The report is the first time that the Bank has made law, and the rule of law, a central
object of its flagship annual report. However, since the early 1990s, when the Bank for-
mally turned its focus to domestic institutional and legal reform as a stand-alone activity,3
the Bank has begun to devote more of its intellectual output to understanding the inter-
connections between the law and development. Indeed, a series of World Development
Reports (WDRs) in the 2000s explicitly did so. The 2002 WDR, on ‘Building Institutions
for Markets’, went so far as to grapple with political institutions, the judicial system, norms
and networks, and the media. New institutionalist in orientation, it still argued forcefully
for experimentation in institutional arrangements.4 The seminal WDR 2004 pivoted Bank
strategy towards the provision of basic services, highlighted the various administrative
institutions required to deliver them (including the judiciary), and introduced the notion
of these institutions as fora for two-way communication between elites and citizens.5 The
WDR 2006 on equity emphasized the importance of the ability of people and groups to
fight for their interests in a peaceful and institutionalized level playing-field. Procedural
goods as well as outcome goods were understood to be the products of institutions: power
imbalances could also be mitigated and equity fostered through the intrinsic value of fair
1
I am grateful to Christopher Gevers, Adil Hasan Khan, Deborah Isser, David Kennedy,
Rebecca Tapscott, Michael Woolcock, and the editors of this volume for their kind and insightful
thoughts and comments. All views, errors, and omissions remain mine alone.
2
The WDR 2017 was released in late January 2017. As of the time of writing, no implementa-
tion document has been released. For several days, I was a consultant to the WDR 2017 team, and
contributed to the Report’s theoretical framework on the rule of law. I worked in a similar capacity
on the WDRs 2011 (on conflict) and 2012 (on gender).
3
See, for some conceptual foundations and an account of early experiences, Oliver E
Williamson, ‘The Institutions and Governance of Economic Development and Reform’ (1994) 8
The World Bank Economic Review 171.
4
World Bank, World Development Report 2002: Building Institutions for Markets (Oxford
University Press 2002).
5
World Bank, World Development Report 2004: Making Services Work for Poor People (World
Bank 2003).
217
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process.6 The WDR 2011 on conflict showed the corollary: the ways in which inadequate
(legal) institutions could cause social conflicts to spiral into violence, and thus the need to
closely engage with institutions as a development and security strategy.7
Just like its predecessors, the WDR 2017 is not simply a conservative rehash of
bromides about rights and markets; it marks a new moment in Bank thinking. Power
and social contestation are at the heart of the report’s analysis of both law and govern-
ance. I argue here that the report should be understood as the Bank setting out a new
conceptual approach to rule of law reform, mirroring the Bank’s reorganization of its rule
of law reform work under a broader rubric of governance. I further argue that the report
imagines the rule of law as a description of a particular formalisation of the distribution
of power between all of the actors which influence a polity. Whether this new approach
will have practical effect within the Bank and the field of rule of law reform more broadly
remains to be seen. In particular, I pinpoint how the report organises debates about rule
of law reform, and how it leaves open debates over how the scope, scale, and discursive
effects of rule of law reform are socially organised within the Bank.
In Section I, I briefly argue that readers should critically appraise scholars’ desire to
focus on the World Bank’s approaches to rule of law reform. Having established that
caveat, in Section II, I identify four key types of debate in the literature on rule of law
reform and on the Bank: definition (analytical, normative, etc.); scale (small, big, etc.);
scope (governance, law, etc.); and organisation (techniques and practices, discourses,
social formations). In Section III, I study the substance of the report. In Section IV, I
analyse how the report might intervene in these debates, and how the report might shape
the future of rule of law reform in the institution. Section V concludes.
I. WHAT SHOULD WE CARE ABOUT WHEN WE CARE

ABOUT THE WORLD BANK?
The World Bank occupies a place of strange fascination for scholars of rule of law
reform. To some degree influenced by prevailing scholarship on development, scholars
often believe, like Krever, that ‘[m]ore than any other development actor, the Bank can
provide the theoretical legitimacy and financial clout to shape mainstream development
discourse’, and as a result is worthy of significant attention when studying the rule of law
and rule of law reform.8 The Bank was, however, a relatively late entrant into the rule of
law reform field. Researchers writing histories of the Bank’s engagement with the rule of
law mostly agree that this engagement began in the early 1990s (recognizing, of course,
practical and policy antecedents going back to the 1960s).9 As a result, scholars’ ideas
6
World Bank, World Development Report 2006: Equity and Development (World Bank and
Oxford University Press 2005).
7
World Bank, World Development Report 2011: Conflict, Security, and Development (World
Bank 2011).
8
Tor Krever, ‘The Legal Turn in Late Development Theory: The Rule of Law and the World
Bank’s Development Model’ (2011) 52 Harvard International Law Journal 287, 291.
9
Roberto Laver, ‘The World Bank and Judicial Reform: Overcoming Blind Spots in the
Approach to Judicial Independence’ (2011) 22 Duke Journal of Comparative & International Law
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Power rules 219
about the Bank’s relevance seem to be shaped by the spirit of academic inquiry at and
about the time. In the early 1990s, the wounds of structural adjustment were fresh, and the
Bank and the International Monetary Fund were understood as twinned fearsome policy
engines of neoliberal reform. It is not surprising, then, that the Bank’s turn to rule of law
reform and efforts to absorb it into the neoliberal policy package might lead scholars to
have an outsized view of the Bank’s importance to the rule of law reform field, despite
many earlier decades of rule of law reform efforts outside the aegis of the Bank. In this
view, the 1990s saw a ‘turn’ (connoting rupture) to neoliberal law reform, driven by the
Bretton Woods institutions;10 the Bank’s importance stemmed then, and continues now,
from its ability to mobilise ‘financial clout’ and ‘theoretical’ and discursive ‘legitimacy’.11
Just how significant is the Bank’s ‘financial clout’ in this area? Researchers differ in
their evidence and perspective, if not in their views. Some emphasize dollars spent, along
with activities undertaken. From outside the Bank, Simion and Taylor, in their recent
overview of the rule of law ‘profession’, point out that ‘the total spend on rule of law and
related policy interventions totals billions.’12 Their evidence for this is that ‘only in 2008,
2.6 billion dollars was spent by key donors for rule of law promotion’ (citing a report
of the International Development Law Organization),13 and that ‘[t]he World Bank has
since 1992, devoted over 90 grants to legal and justice reform, for a total worth of over
US$ 46.8 million, and its current justice sector assistance and reform portfolio comprises
nearly 2,500 justice reform activities’ (citing Initiatives in Justice Reform,14 a World Bank
report from 2009).15 Similarly, Krever, extensively citing the same report, reminds us that
‘[a]s of 2009, the Bank has been involved in almost 2,500 justice reform activities in devel-
oping or transition countries, many with the explicit rationale of promoting economic
development’.16 David Trubek finds yet another figure. Writing in 2006, he states (without
reference) that ‘[t]he World Bank alone reports it has supported 330 ‘rule of law’ projects
and spent $2.9 billion dollars on this sector since 1990’.17
From within the Bank, the perspective is similar, if a little more nuanced. Vivek Maru, a
former Senior Counsel with the World Bank’s now-defunct Justice Reform Unit, suggests
the importance of the Bank through a detailed reading of Initiatives in Justice Reform: ‘By
183; Daniel D Bradlow, ‘The World Bank, the IMF, and Human Rights’ (1996) 6 Transnational
Law & Contemporary Problems 47.
10
Stephen Humphreys, Theatre of the Rule of Law: Transnational Legal Intervention in Theory
and Practice (Cambridge University Press 2010); David Kennedy, ‘The ‘Rule of Law,’ Political
Choices, and Development Common Sense’ in Alvaro Santos and David M Trubek (eds), The New
Law and Economic Development: A Critical Appraisal (Cambridge University Press 2006).
11
Krever (n 8) 291.
12
Kristina Simion and Veronica Taylor, ‘Professionalizing Rule of Law: Issues and Directions’
(Folke Bernadotte Academy 2015) 13.
13
International Development Law Organization, ‘Legal and Judicial Development Assistance
Global Report’ (IDLO 2010) <http://www.idlo.org/Publications/LJAnnualReport.pdf> accessed 8
December 2016.
14
World Bank, ‘Initiatives in Justice Reform’ (World Bank 2009).
15
Simion and Taylor (n 12) 67.
16
Krever (n 8) 291.
17
David M Trubek, ‘The ‘Rule of Law’ in Development Assistance: Past, Present, and Future’
in Alvaro Santos and David M Trubek (eds), The New Law and Economic Development: A Critical
Appraisal (Cambridge University Press 2006) 74.
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2009 the Bank had completed 23 loan projects dedicated exclusively to judicial reform and
was administering 14 others. The Bank had also issued some 90 grants focused on legal
and judicial reform.’18 He provides some context for the range in value of judicial reform
projects, from $2.5 million (in Yemen) to $138 million (in Romania). Similarly, grants range
from $50,000 to $3 million. Projects do not simply vary drastically in terms of scale; they
do so in terms of scope, too: ‘Many other kinds of projects, from governance to natural
resources to community-driven development to private sector, include justice reform
elements. In all, the Bank counts 2,100 justice sector activities within its portfolio.’19
Roberto Laver, another former Senior Counsel at the World Bank, provides further
context for the Bank’s activities. Initially also citing the 2009 report (pointing to 2,500
projects, rather than Maru’s figure of 2,100), he then conducts his own study of the Bank’s
database of projects to understand how much the Bank has spent on projects dedicated
exclusively to justice reform (what he calls ‘stand-alone operations’).20 He finds that
‘[t]he total amount of estimated costs for all projects amounts to over US$1.1 billion and
the total amount of Bank lending exceeds three quarters of a billion dollars. The lending
amounts for these projects range from US$2.4 million to US $130 million’.21
These analyses provide a wealth of figures with very little context. Three points are
worth making. First, the World Bank codes its projects in two different ways: by sector
and by theme. Sectors refer to sectors of economic activity; themes are Bank objectives
and goals. For example, there is a sector entitled ‘public administration, law, and justice’,
with 16 subsectors. One such subsector is ‘law and justice’; other subsectors include ‘com-
pulsory pension and unemployment insurance’ and ‘public administration – energy and
mining.’ On the other hand, there is a stand-alone ‘rule of law’ theme, whose sub-themes
include ‘access to law and justice’, ‘judicial and other dispute resolution mechanisms’, ‘law
reform’, ‘legal institutions for a market economy’, ‘legal services’, ‘personal and property
rights’, and ‘other rule of law’. It is important to note that the same project may be coded
as 90 per cent (meaning 90 per cent of expenditure) rule of law, and 50 per cent law and
justice; furthermore, a project with no specific stand-alone law and justice component
may still be intended to have a significant thematic impact on the rule of law (for example,
setting up a cadastre or land registry), and thus be given a rule of law percentage.22
Second, the division of sectors and themes indicates how hard it is to pinpoint what
constitutes rule of law activity. Initiatives in Justice Reform accounts all projects coded
‘under the theme of ‘Rule of Law’; they also meet the criteria for inclusion in the ‘Public
Administration, Law, and Justice’ sector of World Bank assistance.’23 In other words,
they are projects whose outcomes are seen as impacting the rule of law, and which have
some public administration, law, and justice component. As noted, per the Bank’s codes,
18
Vivek Maru, ‘Access to Justice and Legal Empowerment: A Review of World Bank Practice’
(2010) 2 Hague Journal on the Rule of Law 259, 260.
19
Ibid.
20
Laver (n 9) 184.
21
Ibid., 199.
22
The applicable codes and percentages are determined by a combination of the project team
and the Bank’s Operations unit, whose remit is to oversee the implementation and record-keeping
of Bank projects.
23
World Bank, ‘Initiatives in Justice Reform’ (n 14) 1.
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Power rules 221
‘public administration, law, and justice’ is very broad; at the same time, ‘rule of law’ is
quite narrow. It does not include, for example, ‘land administration and management’
(under ‘environmental and natural resources management’), ‘regulation and competition
policy’ or ‘anti-money laundering’ (under ‘financial and private sector development’),
‘anti-corruption’ (under ‘public sector governance’), and so on. Analyses relying on
Initiatives in Justice Reform are relying on a snapshot of the Bank’s work that might at
once be over- and under-inclusive.
Third, figures such as $1.1 billion and $2.9 billion provide little context in terms of
trends in aid spending in general and spending on rule of law reform in particular. Per
OECD-DAC data, between 2003 and 2014, the World Bank’s contribution to all disbursed
development aid has ranged between 7 and 11 per cent per year, or between $7 billion
and $14 billion (save 2006, when it accounted for $40 billion or 25 per cent). In terms of
aid for ‘legal and judicial development’ (an OECD-DAC code, and one that captures only
a limited amount of rule of law spending), the Bank has spent between 1 and 6 per cent
(with annual expenditure ranging from $30 million to $75 million) of the global annual
total, the latter having increased year-on-year from $361 million in 2003 to $3.2 billion
in 2014.24 Returning to the Bank’s own codes, it has spent around $18 billion since the
1990s on projects with a component from the ‘law and justice’ subsector,25 and around
$48 billion on projects coded as having some ‘rule of law’ thematic impact.26
Stephen Humphreys, who has spent time both within and outside the field of rule of
law reform, attempts to offer some further context. Writing in 2010, and using the Bank’s
Annual Reports as a data source, he suggests the Bank’s importance does not reside in
bulk dollars spent or projects undertaken. ‘In 2006, the Bank reported delivering US$4.6
billion on ‘governance and rule of law programs’, two of the Bank’s 11 core themes,
amounting to 19 per cent of its total loans and grants. Bank expenditure on these themes
almost doubled between 2001 and 2006. . . [Yet] only 577 of the 11,500 projects launched
since 1990 included a ‘rule of law’ component.’27 Rather, he delves into the types of
projects undertaken to give the reader a sense of the impact per dollar spent: ‘the rule of
law theme is heavily weighted at the Bank. . .. [W]ith titles such as ‘Justice and Integrity
Project’ and ‘Judicial Modernization Project’, [its] projects are explicitly intended to
effect root shifts in the role, impact and public understanding of law, judiciaries, legal
institutions and arguments as a whole’.28
The Bank, then, has limited financial clout and a small portfolio when it comes to the
reform of legal systems; however, this work is intensive. Moreover, many of its projects fit
into a broad conception of the rule of law.
24
All cited data can be found at https://stats.oecd.org/qwids/#?x=1&y=6&f=2:262,4:1,7:1,9:
85,3:51,5:3,8:85&q=2:262+4:1+7:1+9:85+3:51,52+5:3, 4+8:85+1:1,26,36,30,31,177,33,200,202,35
,203,71,37,198,38,72,41,42,44,48,45,206,47,179,40,178,193,68,49,73,50,51,52,181,53,55,74+6:2002
,2003,2004,2005,2006,2007,2008,2009,2010,2011,2012,2013,2014,2015&lock=CRS1 (last accessed
8 December 2016).
25
All cited data can be found at http://projects.worldbank.org/search?lang=en&searchTerm=
&sectorcode_exact=BG (last accessed 8 December 2016).
26
All cited data can be found at http://projects.worldbank.org/search?lang=en&searchTerm=
&mjthemecode_exact=3 (last accessed 8 December 2016).
27
Humphreys (n 10) 131–2.
28
Ibid., 132.
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Moving beyond the Bank’s financial role in rule of law reform, what of its discursive
and ideological impact? As I have argued elsewhere,29 this is extremely hard to measure.
For one thing, it is notoriously had to trace and evaluate soft power.30 For another, what
exactly constitutes the field of rule of law reform such that we can understand its shifting
fashions? Critics and comrades alike analyse rule of law reform from a presumption that
we know what the rule of law is and how to do it. They assert the actors and scope of
the field – whether it be through conceptual argument (e.g., Humphreys draws on Dicey,
Oakeshott, and Habermas), methodological preference (e.g., Krygier’s plea for a sociologi-
cal view of the rule of law in practice),31 or practical experience (e.g., Maru populating the
rule of law through the tapestry of his experiences with legal empowerment tools).32 This
practice of assertion should be understood as the field protesting too much. A cottage
industry of literature has emerged in the last decade of writers attempting to (re-)define
what the rule of law is and how to reform it, reproducing and never resolving a first-order
exercise of defining the field.33 As Simion and Taylor point out, the field is marked by ‘the
absence of any baseline data about the professionals, both local and international, who
are engaged in justice reform work worldwide.’34 Reformers do not know who they are
nor the specifics of what they are doing.
Considering this challenge of defining the field and of situating the Bank within it,
how might we understand the discursive and ideological impact of the Bank? A first
step would be to adopt the notion that the field of rule of law reform is constituted
by debates (or ‘stories’35) over the constitution of the field.36 A second step would be
to draw on the broader context of the adjacent field of ‘development’, which tells us
that some debates are more powerful than others. In particular, the artefact of the
World Development Report (WDR), as the World Bank’s flagship report, wields a great
deal of influence in shaping discourses and debates in development.37 It sets research
29
Deval Desai, ‘In Search Of ‘Hire’ Knowledge: Hiring Practices And The Organization Of
Knowledge In A Rule Of Law Field’ in David Marshall (ed.), The International Rule Of Law
Movement: A Crisis Of Legitimacy And The Way Forward (Harvard University Press 2014).
30
Robert Dahl, ‘Power as the Control of Behavior’ in Steven Lukes (ed.), Power (NYU Press
1986) 48–51.
31
Martin Krygier, ‘The Rule of Law: Legality, Teleology, Sociology’, Relocating the Rule of
Law (Hart 2009).
32
Vivek Maru, ‘Allies Unknown: Social Accountability and Legal Empowerment’ (2010) 12
Health and Human Rights 83; Vivek Maru, ‘Between Law and Society: Paralegals and the Provision
of Justice Services in Sierra Leone and Worldwide’ (2006) 31 Yale Journal of International Law
427.
33
Deval Desai and Michael Woolcock, ‘Experimental Justice Reform: Lessons from the World
Bank and Beyond’ (2015) 11 Annual Review of Law and Social Science 155, 158.
34
Simion and Taylor (n 12) 23.
35
Desai (n 29) 73.
36
See also Desmond Manderson, ‘Modernism, Polarity, and the Rule of Law’ (2012) 24 Yale
Journal of Law & the Humanities 475. For Waldron, the concept of the rule of law itself is an
‘achievement-concept’ and not a ‘solution-concept’, meaning that the substance of rule of law is
the debates over the rule of law: Jeremy Waldron, ‘Is the Rule of Law an Essentially Contested
Concept (in Florida)?’ (2002) 21 Law and Philosophy 137, 158.
37
Robert Hunter Wade, ‘Making the World Development Report 2000: Attacking Poverty’
(2001) 29 World Development 1435. See, for examples of the impact of specific WDRs, Maria
Paalman and others, ‘A Critical Review of Priority Setting in the Health Sector: The Methodology
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Power rules 223
agendas for the Bank and other institutions, sparks friendly and critical commentary
from academics, and solidifies ideologies that are then operationalized by development
agencies. It is, therefore, a worthwhile object of study to understand the constitution of
the rule of law field when the report’s main focus is law itself, as it was in 2017. Following
on from these two steps, my gambit for the rest of this chapter is to inquire into how,
exactly, the WDR 2017 arranges the debates in the field over rule of law reform and the
Bank’s role in it.
II. DEBATING THE WORLD BANK AND RULE OF LAW

REFORM
In this section, I identify four types of debate in the literature on the Bank and rule
of law reform: definition (analytical, normative); scale (small, big); scope (governance,
law); and organisation (techniques and practices, discourses, social formations). Many
of the debates are about rule of law reform generally, with some specific application to
the Bank.
Definition
Definitional debates highlight conceptual confusion over the content of the rule of law,
and attempt to organize this content through an appeal to external normative principles,
conceptual commitments, or rigorous analysis. Reformers may turn to principles of
political philosophy, inductive accounts of means and ends (such as Trebilcock and
Daniels’ ‘process values’, ‘institutional values’ and ‘legitimacy values’;38 or Kleinfeld
and Magen’s respective attempts to articulate the ends of rule of law reform, including
legal certainty and law and order39), descriptive statements (such as frequent policy
references to the UN Secretary-General’s attempt to define the rule of law in a 2004
laundry list40), positive statements of legal and social fact (in which the rule of law comes
close to a description of a legal order41) and so on. These attempts do not resolve but
of the 1993 World Development Report’ (1998) 13 Health Policy and Planning 13; Jonathan Rigg
and others, ‘The World Development Report 2009 ‘Reshapes Economic Geography’: Geographical
Reflections’ (2009) 34 Transactions of the Institute of British Geographers 128; David Harvey,
‘Reshaping Economic Geography: The World Development Report 2009’ (2009) 40 Development
and Change 1269; Gareth A Jones and Dennis Rodgers, ‘The World Bank’s World Development
Report 2011 on Conflict, Security and Development: A Critique through Five Vignettes’ (2011) 23
Journal of International Development 980.
38
Michael J Trebilcock and Ronald J Daniels, Rule of Law Reform and Development: Charting
the Fragile Path of Progress (Edward Elgar Publishing 2009) 29–36.
39
Rachel Kleinfeld, ‘Competing Definitions of the Rule of Law’ in Thomas Carothers (ed),
Promoting the Rule of Law Abroad: In Search of Knowledge (Carnegie Endowment for International
Peace 2006) 62–4; Amichai Magen, ‘The Rule of Law and Its Promotion Abroad: Three Problems
of Scope’ (2009) 45 Stanford Journal of International Law 51, 53–4.
40
Louis-Alexandre Berg and Deval Desai, ‘Overview on the Rule of Law and Sustainable
Development for the Global Dialogue on Rule of Law and the Post-2015 Development Agenda’
(UNDP 2013).
41
Brian Tamanaha, ‘The Primacy of Society and the Failures of Law and Development’ (2011)
M4581 - MAY_9781786432438_t.indd 223 01/08/2018 14:47

rather reproduce conceptual debates. As Kratochwil points out, ‘[t]he initial bewilder-
ment caused by this brief historical reflection [on the meaning of the rule of law] has
some methodological implications. It casts doubt on the viability of our usual means of
clarifying the meaning of concepts, that is of ascertaining to which events, objects or
actions this term “refers”’.42
With respect to the World Bank, Alvaro Santos famously points out the political sali-
ence of this conceptual confusion. On the basis of six months working with the World
Bank, he argues that the Bank does have a conceptual definition of the rule of law, but
the definition is confused. He identifies four different conceptual arguments at work in
two opposing pairs: institutional (i.e., formal) and substantive (e.g., rights-based); and
of instrumental (predominantly for economic ends) and intrinsic value. The available
arguments are thus ‘institutional-instrumental’ (exemplified in the Bank by references
to Weber), ‘institutional-intrinsic’ (exemplified by Dicey), ‘substantive-instrumental’
(exemplified by Hayek), and ‘substantive-intrinsic’ (exemplified by Sen).43
He goes on to argue that these different arguments are not coherently deployed, and
furthermore that the confusion has political value: ‘these various conceptions of the rule
of law, as channelled in the Bank, constitute a hodgepodge that enables different and
often conflicting projects to be pursued under the same agenda’.44 Conceptual debates are
not to be organized or resolved, but instrumentalized and executed.
Scale
A second type of debate problematizes attempts to produce a unitary definition of the

rule of law that might then guide reform efforts. It does so through scale, suggesting that
the correct debate is not what the rule of law is, but at what level it is and should be defined
and reform conducted. I will briefly rehearse this debate here. Take Golub’s influential
attempt to recast the whole field of rule of law reform by offering a ‘legal empowerment
alternative’. He expressly writes against attempts the ‘rule of law orthodoxy’ to provide ex
ante definitional content for its work, including ‘security for foreign and domestic invest-
ment, property and contract rights, international trade, and other vehicles for advancing
economic growth’.45 He also writes against what he sees as epistemic content that is
similarly top-down: the ‘orthodoxy’ is beholden to ‘lawyers’ and their ways of seeing
the world, and as leading to ‘a tendency to define the legal system’s problems and cures
narrowly, in terms of courts, prosecutors, contracts, law reform, and other institutions
and processes in which lawyers play central roles’.46
44 Cornell International Law Journal 209.

42
Friedrich Kratochwil, ‘Has the “Rule of Law” Become a “Rule of Lawyers”? An Inquiry
into the Use and Abuse of an Ancient Topos in Contemporary Debates’ in Gianluigi Palombella
and Neil Walker (eds), Relocating the Rule of Law (Hart 2009) 172.
43
Alvaro Santos, ‘The World Bank’s Uses of the “Rule of Law” Promise in Economic
Development’ in David M Trubek and Alvaro Santos (eds), The New Law and Economic
Development (Cambridge University Press 2006) 259.
44
Ibid., 256.
45
Stephen Golub, ‘Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative’
(Carnegie Endowment for International Peace 2003) 42 7.
46
Ibid., 22.
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Power rules 225
His alternative is grounded in a quest to engage with and tackle ‘grassroots needs and
activities [and] translate that community-level work into impact on national laws and
institutions’.47 He argues for the ‘use of legal services and related development activities’
for the express purpose of ‘increas[ing] disadvantaged populations’ control over their
lives’.48 The poles of debate he establishes – and which generally mark scalar debates – are
‘bottom-up’ and ‘top-down’, mapping on to images of reform as driven by people and
practitioners, as opposed to policymakers and planners. These poles decompose further
into social (or participatory)49 and spatial components. Debates over participation
emphasise the politics of its process and substance – who should participate, how, why,
to what rule of law ends, and under what rules? These debates are well-established in
the development literature, from Chambers’ rural romanticism to Cooke and Kothari’s
participatory pessimism;50 from local emancipation to new governance domination by
another name. They carry over to rule of law reform debates.51
Spatial debates are similarly well-established. They tend to ask the following: in what
spaces should the content of the rule of law be determined and where should rule of law
reform be carried out? What is the nature of the state and legal order that emerges in
terms of its claims over space? Should reform emerge from nationally-determined and
-implemented plans or an agglomeration of micro projects – or as Andrews, Pritchett
and Woolcock – commenting on development projects more generally – put it, ‘big
development’ or ‘small development’?52
From the Bank perspective, Golub himself sees the Bank’s Justice for the Poor
programme as proceeding on grassroots participatory principles through which local
communities might determine the content of the rule of law for themselves, in contradis-
tinction to top-down Bank rule of law projects.53 Stephens, a World Bank staffer, turns
to the Bank's experience integrating a legal empowerment component into the $100
million Kecamantan Development Project, a community-driven development and local
governance project in Indonesia, to suggest that an accumulation of bottom-up, small
development interventions might constitute the rule of law.54
47
Ibid., 5.
48
Ibid., 25.
49
See e.g., the repeated use of the word ‘participation’ and its cognates in ibid., 33.
50
Robert Chambers, Rural Development: Putting the Last First (Routledge 1983); Bill Cooke
and Uma Kothari, Participation: The New Tyranny? (Zed Books 2001).
51
David M Trubek, ‘Law and Development: Forty Years after ‘Scholars in Self-Estrangement’’
(2016) 66 University of Toronto Law Journal 301; Desai (n 29); Deval Desai, Rosie Wagner and
Michael Woolcock, ‘The Missing Middle: Reconfiguring Rule of Law Reform as If Politics and
Process Mattered’ (2014) 6 Hague Journal on the Rule of Law 230.
52
Lant Pritchett, Michael Woolcock and Matt Andrews, ‘Looking Like a State: Techniques of
Persistent Failure in State Capability for Implementation’ (2013) 49 The Journal of Development
Studies 1, 4–5.
53
Stephen Golub, ‘The Commission on Legal Empowerment of the Poor: One Big Step
Forward and A Few Steps Back for Development Policy and Practice’ (2009) 1 Hague Journal on
the Rule of Law 101.
54
Matthew Stephens, ‘The Commission on Legal Empowerment of the Poor: An Opportunity
Missed’ (2009) 1 Hague Journal on the Rule of Law 132.
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Scope
Debates about scope concern themselves less with the content and location of the rule of
law than with its boundaries as an object of reform. As already noted, rule of law reform
cuts across a series of adjacent fields. As Sage, Menzies and Woolcock note in their
analysis of World Bank rule of law reform efforts, ‘[d]evelopment is ultimately about
developing and distributing rights, resources, and responsibilities, and justice systems
play a key role in shaping this distribution of power—and vice versa’.55 Thus, the rule
of law cuts across health, education, road-building and the like, while these issues cut
through rule of law reform as well. Indeed, Polavarapu and Samuels argue that the rule
of law is so interconnected that family planning services might be an essential component
of it, too.56
Debates over scope might best be understood through a specific field adjacent to rule of
law reform: governance. Both fields cut across any and all fields as they consolidate their
emphasis on institutions as the object of reform, and in doing so refine what they mean
by institutions. They have distinct but interrelated histories of theorizing and engaging
with institutions, the ‘new science of governance’ emerging from a deeper engagement
with the literature and concepts of political science,57 and new approaches to rule of law
reform drawing deeply on socio-legal concepts and approaches.58 Debates over the scope
of rule of law reform, then, can be understood as different positions on what exactly
constitutes an institution (and thus how closely related rule of law reform is to govern-
ance), what makes an institution specifically legal, and how institutions work to regulate
behaviour. Take, for instance, the long-standing debate over whether rule of law reform
should focus on state institutions or ‘non-formal’ and ‘customary’ institutions.59 At one
end, legal institutions are simply institutions that a society has performatively raised to
the status of law, and thus the rule of law is effectively the same as governance because
‘everything’ (or all institutions) matters.60 At another end, the rule of law is quite distinct
from governance, as legal institutions are to some degree particular and autonomous (for
example, through a normative conception of legality) and are thus worthy of distinct
intervention. At the Bank, this debate is encapsulated by the relationship between the ‘law
and justice’ subsector, in which law and justice institutions are autonomous; and the rule
of law theme, which cuts across sectors of Bank work. That the Bank has two separate
mechanisms for accounting for its rule of law work suggests that the Bank recognizes
this tension. However, until recently, its rule of law practitioners were scattered between
55
Caroline Sage, Nicholas Menzies and Michael Woolcock, ‘Taking the Rules of the Game
Seriously: Mainstreaming Justice in Development’ [2009] World Bank Justice & Development
Working Paper 1.
56
Aparna Polavarapu and Joel Samuels, ‘Initial Reflections on an Interdisciplinary Approach
to Rule of Law Studies’ (2015) 8 Law and Development Review 277, 290.
57
Alan Whaites and others (eds), A Governance Practitioner’s Notebook: Alternative Ideas and
Approaches (OECD 2015) 22.
58
Krygier (n 31); Tamanaha (n 41); World Bank, World Development Report 2017: Governance
and the Law (World Bank 2017).
59
Brian Z Tamanaha, Caroline Sage and Michael Woolcock (eds), Legal Pluralism and
Development: Scholars and Practitioners in Dialogue (Reprint, Cambridge University Press 2013).
60
Tamanaha (n 41).
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Power rules 227
the legal department and the public-sector reform department respectively; the tension
between these groups suggests that debates over the scope of rule of law reform are being
played out in turf battles within the Bank itself.61
Organization
Debates over the organization of rule of law reform eschew discussions over the form and
content of reform in favour of debates over the form and content of reformers themselves.
As I have summarised elsewhere,62 these debates tend to take place over different theories
of praxis of rule of law reform. As a result, they often rest on differences regarding the
ways in which expertise is organized in reform. Following Bueger’s analysis of studies of
expertise in international relations more generally,63 I identify three general approaches to
understanding the role of expertise in rule of law reform.
The first approach emphasises the social organization of experts themselves. It
determines what social characteristics constitute a rule of law expert, and explores the
epistemic or interpretive conditions that bind them together as a community.64 Thus
Simion and Taylor, in their recent study of rule of law reformers, argue that they are an
emergent profession, sharing a set of specialized knowledge about rule of law reform
and a set of interpretive tools to relate that knowledge to the world.65 More generally, in
this view, the Bank contains one or more ‘epistemic communities’ conducting rule of law
reform; the direction of reform would be determined by the participants in the community
and the ideas and interpretive tools they share.66
The second approach emphasizes expertise, rather than experts, as the relevant object of
study, and does so by conceptualising expertise as discourse. As a result, this approach is
not concerned with who is or is not an expert; rather, it focuses on ‘expertise as an expres-
sion of epistemic structures and regimes of truth’.67 This approach attempts to uncover
‘the background knowledge, discourses and practices in which people organise and create
their world’68 – in other words, what lies behind taken-for-granted assumptions. It begins
with the assumption that expertise-as-discourse is constituted through a ‘shared textual
structure in which language is a primary mean of producing the [problem]’.69 It inquires
61
Santos (n 43).
62
Desai and Woolcock (n 33).
63
Christian Bueger, ‘From Expert Communities to Epistemic Arrangements: Situating
Expertise in International Relations’ in Maximilian Mayer, Mariana Carpes and Ruth Knoblich
(eds), The Global Politics of Science and Technology – Vol. 1: Concepts from International Relations
and Other Disciplines (Springer 2014).
64
Peter M Haas, ‘Introduction: Epistemic Communities and International Policy Coordination’
(1992) 46 International Organization 1; Emanuel Adler and Peter M Haas, ‘Conclusion: Epistemic
Communities, World Order, and the Creation of a Reflective Research Program’ (1992) 46
International Organization 367; Maj Lervad Grasten, ‘On the Politics of Translation in Global
Governance’ (PhD Thesis, Copenhagen Business School 2016) <http://hdl.handle.net/10398/9299>.
65
Simion and Taylor (n 12).
66
Desai and Woolcock (n 33).
67
Bueger (n 63) 45.
68
Ibid., 46.
69
Ibid., 47.
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into and breaks down discourses through an ‘investigation of language, vocabulary and
linguistic practices’ of expert texts.70
Thus Rajah, in her study of the rule of law in Singapore, closely reads legislative
measures such as the Singaporean Vandalism Act, and their application in court cases.
In doing so, she seeks to trace ‘the Singapore state’s reconfiguration of the profoundly
liberal concept of ‘rule of law’ into an illiberal ‘rule by law’ through the state’s manipula-
tion of legislation and public discourse’.71 She shows how the language of the rule
of law – for her, a convincing performance of some combination of the legality and
legitimacy of state action – was used by the authoritarian state as a means of deepening
and legitimating authoritarian rule. She does so by conceiving of the rule of law as a
discourse, and then uncovering the controlling apparatus of the repressive state that both
produced a set of images of the rule of law and used those images to legitimate its actions.
With respect to rule of law reform at the Bank, Humphreys takes a similar approach,
turning to the language of the Bank’s legal and project documents to uncover its
discourses about the rule of law and its role in economic development. He argues that
these documents reveal a Bank discourse dedicated to producing a transnational public
committed to investment and trade.72
The third approach ‘can be understood as an empirical version of the second. . .
delivering detailed accounts of how epistemes are produced’.73 This approach focuses
on practices, exploring how rule of law reform emerges from the specific organisation
(e.g., an assemblage, a network, a field) of experts, their tools, and techniques; and
examining how, over time, the consolidate into and change global ideas and discourses
about the rule of law. Manji, for example, studies techniques of legal drafting employed
by international technical consultants from the World Bank and elsewhere when drafting
sub-Saharan African land laws. She explores how those techniques – for example, rules or
principles; legal transplantation or sui generis drafting – produced not just specific laws
but ideas for global development institutions about what role law could and should play
in land reform.74 In this approach, debating the Bank’s role in rule of law reform entails
ethnographic studies of Bank practice and projects.75
All three approaches require participants in the debate to assert some recognizable
object of study through which the rule of law can be organized: identifiable rule of
law experts, discourses that are clearly about the rule of law, and practices that clearly
implicate the rule of law. As noted in the section on ‘scope’ above, this poses a challenge.
As with debates over scale and definition, the rule of law could be found anywhere and
on any topic.
70
Ibid.
71
Jothie Rajah, Authoritarian Rule of Law: Legislation, Discourse and Legitimacy in Singapore
(Cambridge University Press 2012) 267.
72
Humphreys (n 10) 231–2.
73
Bueger (n 63) 48.
74
Ambreena Manji, The Politics of Land Reform in Africa: From Communal Tenure to Free
Markets (Zed Books 2006).
75
See e.g., David Lewis and David Mosse, ‘Encountering Order and Disjuncture: Contemporary
Anthropological Perspectives on the Organization of Development’ (2006) 34 Oxford Development
Studies 1.
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Power rules 229
Where to begin? In the next section therefore, I explore the argument of the WDR
2017 – which covers both governance and the law – and consider how it arranges all four
of these debates (and their sub-debates) to produce an idea of the Bank’s role in rule of
law reform.
III. THE WDR 2017
The WDR 2017, entitled Governance and the Law, is by no means the Bank’s first foray into
a WDR on either of those topics. At the same time, the content of the 2017 report is novel.
It is methodologically diverse, influenced inter alia by an eclectic mix of game theory, new
institutional economics, and political, organizational, and legal sociology.76 The problem
the report grapples with is the set of harms that come with globalization and complexity:
‘although the global spread of capital, technology, ideas, and people has helped many
countries and people move forward, other regions and populations appear to have been
left behind, and they are still facing violence, slow growth, and limited opportunities for
advancement’.77 This complexity leads to a very specific development challenge:
Policies that should be effective in generating positive development outcomes are often not
adopted, are poorly implemented, or end up backfiring over time. Although the development
community has focused a great deal of attention on learning what policies and interventions
are needed to generate better outcomes, it has paid much less attention to learning why those
approaches succeed so well in some contexts but fail to generate positive results in others.78
The matter to be explained, then, is implementation failure. Moreover, development –

as an enterprise conducted in the face of complexity – might be well advised to expend
its energy on understanding implementation practices rather than policy development.
Unusually for the World Bank, the key variable in implementation failures identified by
the report is power:
Governance is the process through which state and nonstate actors interact to design and
implement policies within a given set of formal and informal rules that shape and are shaped by
power. This Report defines power as the ability of groups and individuals to make others act in
the interest of those groups and individuals and to bring about specific outcomes.79
The view of power is not formal. The report cites Robert Dahl’s and Steven Lukes’
classic accounts of power as informing its definition;80 moreover, it expressly refers to
Foucault’s view of power when discussing the importance of understanding the power
76
The chapter on security, e.g., draws on influences ranging from economists’ accounts of
incentives and violence such as Paul Collier’s, to North et al’s new institutionalist account of
violence, to ethnographic accounts of the social consequences of violence such as Alex de Waal’s,
to governmental critiques of development land policy such as Tania Murray Li et al’s: World Bank,
World Development Report 2017: Governance and the Law (n 58) 111–12, 115–16, 122.
77
Ibid., 2.
78
Ibid., (emphasis original).
79
Ibid., 41 (emphasis original, footnote omitted).
80
Ibid.
M4581 - MAY_9781786432438_t.indd 229 01/08/2018 14:47

to shape other people’s beliefs81 about themselves and the world, concluding: ‘The
dichotomy between ideas (ideology and culture) and power as a primary determinant
of social dynamics is thus a false one. The idea of power cannot be understood without
taking seriously the power of ideas.’82
How might we understand the workings of power in a complex world? In a section
worth quoting at length, the report simplifies and rationalizes the world through the
device of the ‘policy bargaining arena’:
Policy making and policy implementation both involve bargaining among different actors. The
setting in which (policy) decisions are made is the policy arena—that is, the space in which differ-
ent groups and actors interact and bargain over aspects of the public domain, and in which the
resulting agreements eventually also lead to changes in the formal rules (law). It is the setting in
which governance manifests itself. Policy arenas can be found at the local, national, international,
and supranational levels. They can be formal (parliaments, courts, intergovernmental organisa-
tions, government agencies), traditional (council of elders), or informal (backroom deals, old
boys’ networks). Who bargains in this policy arena and how successfully they bargain are
determined by the relative power of actors, by their ability to influence others through control
over resources, threat of violence, or ideational persuasion (de facto power), as well as by and
through the existing rules themselves (de jure power).83
As this definition suggests, the policy bargaining arena is a space in which conflicts
resolve into bargains; those bargains are over the direction of implementation, but also
over the ‘public space’, or the very space in which those bargains occur. Bargaining aims
to redistribute resources and power through implementation, thereby indirectly setting
the terms of future bargains; but also, to directly set the terms of future bargains by
changing and recodifying their rules.
The report’s view of power and its importance means that a distinction between law
and governance based on intrinsic qualities of law (like legality) cannot be sustained. The
report acknowledges that this distinction is instead a political matter. According power
legal status is simply a particular (albeit very important) mode of formalising power that
brings with it ways of talking, showing, and doing:
Law is a powerful instrument for reshaping the policy arena. Although laws generally reflect the
interests of those actors with greater bargaining power, law has also proven to be an important
instrument for change. By its nature, law is a device that provides a particular language, structure,
and formality for ordering things, and this characteristic gives it the potential to become a force
independent of the initial powers and intentions behind it.84
The key to understanding this ‘potential’ is the old socio-legal maxim: the nature of
the gap ‘between law on paper and law in practice’.85 The report understands this gap
dynamically. It is initially a function of the ‘instrumental way through which groups and
individuals in society use law as a means of promoting, enforcing, and institutionalising
81
Ibid., 8, 259.
82
Ibid., 8.
83
Ibid., 7 (emphasis original, citation omitted).
84
Ibid., 13.
85
Ibid., 102.
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Power rules 231
interests or objectives’,86 meaning that the gap will reflect a compromise between the
interests of the powerful and slightly less powerful actors in an arena. However, the report
takes seriously the idea that over time, law takes on a life of its own and becomes to an
extent autonomous, or a ‘force independent’. Thus, ‘[l]aw can be a double-edged sword:
although it may serve to reinforce prevailing social and economic relations, it can also
be a powerful tool of those seeking to resist, challenge, and transform those relations’.87
As a result, the report recognizes that legal orders may, as a political (but not necessarily
teleological) matter, endogenously transition to some degree of autonomy – in other
words, the rule of law. However, it also urges readers to think of law and power in terms
of the ‘role’ rather than the ‘rule’ of law, thereby avoiding definitional quagmires over the
rule of law: ‘Pragmatic policy design that takes into account how. . . different roles of law
can bolster the effectiveness of development policies can ultimately move countries on a
trajectory toward a stronger rule of law.’88
Pragmatic policy design is, however, far from easy. Policy arenas can be of any scale,
and are clearly networked, as backroom deals can shape the distribution of power in
parliaments and vice versa. Indeed, for the report, global governance describes all of the
different policy bargaining arenas and the dynamic links between them:
The dynamics of governance do not occur solely within the boundaries of nation-states.
Countries today face an interconnected, globalised world characterised by a high velocity and
magnitude of flows of capital, trade, ideas, technology, and people. The world nowadays is very
different from the one in which today’s developed countries emerged: in those days, cross-border
flows were low; the countries received no aid; and they were not subject to a proliferation of
transnational treaties, norms, and regulatory mechanisms. For developing countries, the era of
globalisation and ‘global governance’ presents both opportunities and challenges. As the flows
across borders expand, so too do the instruments and mechanisms that are used to manage
these flows. To influence domestic policies and governance, international actors can introduce
transnational rules, standards, and regulations.89
Law, then, is central to pragmatic policy design as it is a mode of formalizing power that
is particularly effective at functioning across and linking scales in which policy bargaining
arenas reside.
IV. ANALYSIS
The WDR 2017 produces a view of rule of law reform not by asserting what the rule of law
is, but by organizing the debates around the rule of law. Its first step is to resolve the ques-
tion of the scope of the rule of law. It defines both the rule of law and governance as ways
in which power is formalized. Both law and governance are thus different manifestations
of the same underlying phenomenon. Law, however, has its own particular characteristics:
a language, structure, and form. Law is thus cross-cutting but can be an autonomous
86
Ibid., 96.
87
Ibid., 83 (citation omitted).
88
Ibid., 14.
89
Ibid., 25–6.
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object of study. Following on from this, the report sidesteps definitional debates over
the rule of law by arguing that development actors should focus on the instrumental role
rather than the rule of law. It recognizes the value of the rule of law but does so in a general
sense, emphasizing that law can have some degree of autonomous social power. However,
the report is interested in how actors use law’s ‘potential’ to become a ‘force independent’
(citing, for example, a study of how ‘judicial defeats can be leveraged by activists to coor-
dinate collective action around rights consciousness’90), rather than the specific desiderata
of that autonomy. It similarly sidesteps the question of scale by drawing on the literature
on transnational legal orders to point out the profoundly interlinked and networked web
of law at many scales that constitutes the legal order governing any development issue.
The WDR 2017 links the debates over scale to those over organization in its final chapter,
‘Governance in an Interconnected World.’91 As the title suggests, the chapter engages with
the role of global governance in implementation failures. As with the rest of the report, it
is concerned with bargaining and implementation practices – this time by global actors.
[I]nternational actors enter directly into the policy arena. . . Foreign states, multinational
corporations, development agencies, or transnational [NGOs] can gain a seat at the domestic
bargaining table. . . [or] shape the arena in which policy making and contestation occur by
creating alternative spaces in which actors can bargain.92
However, it also points out that ‘[t]ransnational networks of technical experts can
play an important role in changing preferences and internalising new norms through
the diffusion of evidence and authoritative expertise’.93 The report thus brings into the
bargaining arena the power effects of the social organization and practices of global
experts themselves.94
The WDR 2017 paints a picture of the rule of law as a description of the eventual
semi-autonomy of the law, understood as a particular, multi-scalar, and networked
formalization of power, that iteratively emerges from and shapes the interlinked policy
bargaining arenas between actors. It does not theorize the role of discourse in producing
and sustaining visions of the rule of law (even though it does acknowledge the role of
ideas and ideology). The report is perhaps deliberately silent on this matter: if the reader
understands the report as a discursive artefact, its use and circulation will exemplify the
relationship between discourse and the rule of law.
What does the WDR 2017 mean for rule of law reform at the World Bank (and
eventually other development organizations)? Returning to social organization, discourse,
and practices as a way of understanding the relationship between the rule of law and its
90
César Rodríguez-Garavito and Diana Rodríguez-Franco, Radical Deprivation on Trial: The
Impact of Judicial Activism on Socioeconomic Rights in the Global South (Cambridge University
Press 2015).
91
World Bank, World Development Report 2017: Governance and the Law (n 58) 257.
92
Ibid., 257–8 (citations omitted).
93
Ibid., 259. Here the report cites Haas (n 64). It also cites Keck and Sikkink’s work on
epistemic communities and international norm spirals: Margaret E Keck and Kathryn Sikkink,
Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press
1998).
94
World Bank, World Development Report 2017: Governance and the Law (n 58) 259.
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Power rules 233
organization, it can clearly be understood as an effort to shape the discourse on rule of

law and governance at the Bank. And the Bank has a practical tradition dating back to
at least 2006 (the foundation of the Justice for the Poor programme, at the time the single
largest group of rule of law reform practitioners in any development organization) of
approaching rule of law reform as a specifically legal mode of formalizing power strug-
gles between disparate and networked groups, whose respective power positions were
already shaped in part by the actions of development professionals.95 What remains is
to understand how the report will play out in terms of the social organization of rule of
law reform at the Bank. As with every WDR, the details will emerge in the subsequent
and customary implementation plan for the report. However, the existing social and
organizational context of the Bank highlights areas that the plan, Bank staff, and external
interlocutors might focus on.
The Bank has already taken a first step in terms of scope, incorporating its ‘Justice’
specialists into the new ‘Governance Global Practice’ (previously, many sat in the Legal
department). As a consequence, the turf battles and ‘hodgepodge[s]’ described by Alvaro
Santos – a function in part of the division of rule of law work between the legal and various
governance-related departments – will look very different. With respect to definitions, the
Bank has already begun to adopt a contextual and power-focused understanding of the
rule of law in its everyday social organization, as I have discussed elsewhere in a study of
recent Bank terms of reference for rule of law reform positions.96 With respect to scale, the
Justice for the Poor programme originally promoted micro-level responses to macro-level
power inequities (through legal empowerment projects, for example); in recent years it has
also engaged with macro- or system-level rule of law reform projects (such as court and
prosecutorial reform), and has also attempted to link these different scales of work.97 It
remains to be seen how this trend overlaps with the increasing decentralisation of control
over Bank funds to its Country Offices under President Kim, and the shifting relationship
between the Bank’s headquarters and Country Offices more generally.
Finally, how is the Bank socially organizing its thinking about its own organization of
rule of law reform? With respect to the social organization of thinking about practices, the
Bank’s Governance Global Practice has established a qualitative research steering com-
mittee (including scholars such as James Ferguson and Jean-Pierre Olivier de Sardan),
initially to help the Bank develop qualitative approaches to understanding bureaucratic
practices. With respect to the social organization of thinking about social organiza-
tion, current and former Bank staff lead and participate in ‘Building State Capability’
and ‘Doing Development Differently’ – loose networks of development scholars and
practitioners with particular nodes at the Bank, the UK’s Department for International
Development, the Overseas Development Institute, and Harvard’s Kennedy School. These
networks focus on how to build a ‘global social movement’ or social enabling environment
for contextual and politically-sensitive governance and rule of law reform.98 With respect
95
For a summary, see Desai and Woolcock (n 33).
96
Desai (n 29).
97
Sage, Menzies and Woolcock (n 55); Samuel Clark and Matthew Stephens, ‘Reducing
Injustice? A Grounded Approach to Strengthening Hybrid Justice Systems: Lessons from
Indonesia’ (IDLO 2011) Working Paper Series 5.
98
Desai and Woolcock (n 33); Richard Sannerholm, Shane Quinn and Andrea Rabus,
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to the social organization of who thinks what about the Bank’s discursive effects on rule
of law reform, we must await the report’s dissemination strategy and activities.
V. CONCLUSION
This chapter has introduced the WDR 2017 as a novel approach by the Bank to rule of
law reform. I have also put the report’s novelty into context, attempting to avoid mistakes
made by other scholars, whose analyses of the Bank’s role in rule of law reform could have
benefitted from some nuance and context. I have shown that data contextualizing rule of
law reform at the Bank is difficult to present appropriately, and that the Bank struggles
with the same first-order definitional problems that plague the field: what activities actu-
ally constitute the rule of law? Instead, I have presented the report as a field-constituting
document – that is, a document that attempts to organize the debates in the field. I have
also related the report’s organization of the field to the Bank’s own organization of its
rule of law reform work.
In doing so, I have hearkened back to an argument I made with Michael Woolcock in
2015. Discussing the practice of rule of law reform, we said that:
‘more research’ as conventionally understood will only yield marginal improvements in con-
ceptual clarity and add only incrementally to our cumulative knowledge – the political salience,
legitimacy, and action-ability of such concepts [of rule of law reform] must be negotiated anew
in each setting, between different epistemic groups (professions). . . Such negotiation and delib-
eration is inherently a contested, dynamic process, likely to yield an idiosyncratic outcome. . .
[Certainly] scholars and practitioners alike need to invest in richer data-gathering exercises, in
empirical tasks that de-homogenise people based on conceptual as well as material differences;
this will entail taking history, sociology, and anthropology. . . seriously.99
As for research on the practice of rule of law reform, so for research on its theory. When
analysing artefacts like the WDR 2017, scholars and engaged practitioners must be able
to put the text in motion through its context in order to trace the evolution of rule of
law reform at the Bank.100 In this chapter, I have attempted to set out the beginning of a
research agenda to ‘de-homogenise’ the Bank and understand the idiosyncratic outcomes
of the report; in particular, using anthropology, organizational sociology, and history
to grapple with how debates about the scope, scale, and discursive effects of rule of law
reform are socially organized within the Bank, and thus how the WDR 2017 will shape
rule of law reform in years to come.
‘Responsive and Responsible: Politically Smart Rule of Law Reform in Conflict and Fragile States’
(Folke Bernadotte Academy 2016).
99
Deval Desai and Michael Woolcock, ‘The Politics – and Process – of Rule of Law Systems
in Developmental States’ in Sam Hickey, Kunal Sen and Badru Bukenya (eds), The Politics of
Inclusive Development: Interrogating the Evidence (Oxford University Press 2015) 194.
100
Annelise Riles, Documents: Artifacts of Modern Knowledge (University of Michigan Press
2006).
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14. The rule of law and the European Union
Amichai Magen and Laurent Pech*
The idea and ideal of the rule of law has ancient roots in Babylonian, Hebraic, Hellenic,
Roman, and in some respects Chinese political thought.1 Each tradition has made
indelible contributions to the emergence of modern European conceptions of the rule
of law and, ineluctably, to those found in the contemporary European Union (EU).2
Fascinating and important as the history of these ideas undoubtedly is, this chapter
does not trace the evolution of the rule of law within those millennia-old traditions,
nor does it cover the distinct rule of law conceptions and cultures that developed in
the national systems of each EU member state. A final caveat: this chapter addresses
the notion of the rule of law as it emerged and developed within the EU governance
system per se, but does not pretend to account for other pan-European conceptions
and uses, notably the ones found in the context of the European Convention on
Human Rights (ECHR) and its interpretation by the European Court of Human
Rights (ECtHR), the Council of Europe (CoE) more broadly, or the Organization for
Security and Cooperation in Europe (OSCE) except as they significantly shaped that
of the EU itself.3
This chapter traces the origins and evolution of the concept of the rule of law within
the EC/EU governance system. It then delineates the four main areas in which the rule of
law forms a central pillar of EC/EU identity and activity. Finally, the chapter provides a
cross-cutting, critical review of the EU-rule of law nexus, identifying key debates where
the concept of the rule of law plays a substantial role in contemporary EU studies, as well
as where the EU governance system can be said to be lacking in terms of its adherence
to the salient constitutive features of the rule of law. Throughout, the chapter places
emphasis on the identification of key concepts, areas of activity, and debates so as to
facilitate future research into the EU-rule of law nexus.
* All websites were live at 25 March 2018.

1
See: Michael Waltzer et al. (eds) The Jewish Political Tradition: Volume One – Authority
(Yale University Press, 2000); Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory
(Cambridge University Press, 2004); Ricardo Gosalbo-Bono, ‘The Significance of the Rule of Law
and its Implications for the European Union and the United States’ [2010] U. Pitt. L. Rev 229; Eric
W. Orts, ‘The Rule of Law in China’ [2001] Van. J. Trans. L. 43.
2
See: Laurent Pech, ‘The Rule of Law As a Constitutional Principle of the European Union’
[2009] NYU Jean Monnet Working Papers no. 04/09; Gosalbo-Bono, Ibid.
3
See: Laurent Pech, ‘Promoting the Rule of Law Abroad: On the EU’s Limited Contribution
to the Shaping of an International Understanding of the Rule of Law’ in Fabian Amtenbrink and
Dimitry Kochenov (eds) The EU’s Shaping of the International Legal Order (Cambridge University
Press, 2013), p. 108.
235
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ORIGINS AND EVOLUTION
Like the terms ‘Democracy’ and ‘Human Rights’, the phrase ‘rule of law’ (or its continen-
tal permutations l’Etat de droit and Rechtsstaatlichkeit) was not included in the original
founding treaty of the EC/EU, the European Economic Community (EEC) Treaty signed
in Rome in 1957.4 It first entered treaty language in the context of Member State’s efforts
to speak in greater unison to the rest of the world, not as part of any intra-community
constitutional discourse. Whereas historically the notion of the rule of law has developed
within the framework of human societies’ attempts to regulate the domestic exercise of
power, between rulers and ruled, in the case of the European Community the appearance
of the term in the constitutive documents of the organisation took place as part of an
outwards projection of values which the Member States sought to collectively promote
outside their own borders and demos.
In a first, tentative treaty reference, the preamble to the 1986 Single European Act
(SEA) declared the Member States’ intent to:
. . .display the principles of democracy and compliance with the law and with human rights to
which they are attached, so that together they may make their own contribution to the preserva-
tion of international peace and security in accordance with the undertaking entered into by them
within the framework of the United Nations Charter.5
Yet it was only with the creation of the EU by the Treaty on European Union (TEU) in
1992 – four decades after the signing of the European Coal and Steel Community (ECSC)
in 1951 – that explicit reference to the rule of law was incorporated into treaty language,
and then chiefly in the context of the EU’s external policy.
The preamble of the TEU confirmed the Member State’s general ‘attachment to the
principles of liberty, democracy and respect for human rights and fundamental freedoms
and of the rule of law’.6 Reference to the term in the substantive treaty provisions
themselves was confined to the new provisions on a Common Foreign and Security Policy
(CFSP), and development cooperation. In the former, Article J.1(2) provided that one of
the objectives of the CFSP would be: ‘to develop and consolidate democracy and the rule
of law, and respect for human rights and fundamental freedoms’,7 and in the latter Article
130u(2) established that Community development policy ‘shall contribute to the general
objective of developing and consolidating democracy and the rule of law, and to that of
respecting human rights and fundamental freedoms’.8
In contrast to these external relations provisions, the rule of law was specified as a
principle upon which the EU itself is said to be founded (as well as declared to be common
4
The European Economic Community Treaty [1957] 298 UNTS 11, 4 European Year Book 412
(herein the ‘EEC Treaty’).
5
The Single European Act [1986] OJ L169 (herein ‘SEA’).
6
The Treaty on European Union [1992] OJ C191 (herein ‘TEU’).
7
Article J.1(2) of the TEU (now Article 24 TEU as revised by the Lisbon Treaty).
8
Article 130u (2) EEC Treaty (now Article 208 of the Treaty on the Functioning of the
European Union (herein ‘TFEU’), i.e., the renamed and amended EEC Treaty following the entry
into force of the Lisbon Treaty on 1 December 2009).
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The rule of law and the European Union 237
to all its Member States) only in the 1997 Treaty of Amsterdam.9 Following the entry
into force of another amending Treaty in 2009, i.e., the Treaty of Lisbon, the Union’s
foundation on the rule of law is now enshrined in Article 2 TEU:
The Union is founded on the values of respect for human dignity, freedom, democracy, equal-
ity, the rule of law and respect for human rights, including the rights of persons belonging to
minorities. These values are common to the Member States in a society in which pluralism,
non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
Coupled with the notion that the EU itself is based upon, inter alia, the rule of law
as a foundational value shared by all Member States, is a treaty provision designed to
ensure compliance with the foundational values listed in Article 2 TEU via a preven-
tive mechanism and a sactioning one which are both laid down in Article 7 TEU. The
preventive mechanism (Article 7, first paragraph), which was first activated against
Poland in December 2017, foresees an activation in a case of a ‘clear risk of a serious
breach of Article 2 values whereas the sanctioning mechanism (Article 7, second and
third paragraphs) technically empowers the Council of the EU to adopt sanctions (e.g.,
the suspension of voting rights in the Council) against any EU country found ‘guilty’
of a serious and persistent breach of the values mentioned in Article 2 TEU and which
are said to be common to the EU and its Member States.10 Commonly but inaccurately
referred to as the EU’s ‘nuclear option’,11 it had long been assumed that this provision
would never have to be activated as its mere dissuasive effect would be enough to keep
would-be autocrats in check. Regrettably, this assumption has proved to be misguided and
in addition to the pending Article 7 procedure against Poland previously mentioned, the
European Parliament is working on a possible activation of Article 7 against Hungary.12
Notwithstanding the rather late incorporation of term ‘the rule of law’ into treaty
language pertaining to the constitutive values upon which the Union is founded, the
concept itself has been implicitly embedded in the legal order of the Community from
its inception. At a fundamental level the very raison d’être of European integration has
been to protect and advance the rule of law in two key respects: first, as a safeguard
against capricious or totalitarian forces, internal and external to Western Europe; and
second, as a means of replacing the anarchical inter-state system that plagued Europe
for centuries (culminating in the horrors of the Second World War and the Holocaust)
9
Article 6(1) TEU, as amended by the Treaty of Amsterdam [1997] OJ C340 (hereinafter
‘ToA’).
10
Article 7 TEU, added by the ToA, amended by the Treaty of Nice [2001], OJ C80 (herein
‘ToN’).
11
Dimitry Kochenov and Laurent Pech, ‘Better Late than Never? On the European
Commission’s Rule of Law Framework and its First Activation’ [2016] JCMS 1062.
12
For a comprehensive overview, see Laurent Pech and Kim Law Scheppele, ‘Illiberalism
Within: Rule of Law Backsliding in the EU’ [2017] CYELS 3. For a briefer and recent account of
the state of play with respect to Poland and Hungary, see Laurent Pech and Kim Lane Scheppele,
‘Was the Commission Right to Activate pre-Article 7 and Article 7(1) Procedures against Poland?’
(Verfassungblog, 7 March 2018) < https://verfassungsblog.de/was-the-commission-right-to-activate-
pre-article-7-and-art-71-procedures-against-poland/ >; Laurent Pech and Kim Lane Scheppele,
‘Why Poland and not Hungary?’, (Verfassungblog, 8 March 2018) < https://verfassungsblog.de/
why-poland-and-not-hungary/ >.
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with a rule-based supranational system characterised by a core function of law; namely

peaceful conflict settlement. Central to both these aims has been the notion of an effec-
tive liberal legal order, in which specialised supranational institutions would be endowed
with defined powers to establish laws and regulations that bind Member States and their
citizens; where each institution and Member State was to act within the scope of powers
attributed or remaining to it; where transgressions from the appropriate scope of powers
be identified, authoritatively adjudicated upon and sanctioned; where individual liberties
and rights be recognised and respected; and where recourse to judicial protection would
be guaranteed.13
The founding EEC treaty made provisions for a set of institutions with defined powers,
including a Court of Justice whose essential task was to ensure that: ‘in the interpretation
and application of this Treaty the law is observed’.14 In addition, the EEC Treaty provided
for some basic forms of legal protection by providing natural and legal persons with the
right to challenge the legality of EU measures by bringing an annulment action directly
before the Court of Justice or indirectly via national courts.15
THE ROLE OF THE COURT OF JUSTICE OF THE EUROPEAN

UNION
As in most areas of EU constitutional law, it was the European Court of Justice (ECJ),
rather than the drafting Member States, who laid down the principle of the rule of law and
fleshed it out through interpretation.16 Since the early 1960s the Court has not only estab-
lished itself as the authoritative interpreter of Community law, but has adroitly co-opted
national courts and administrations to help transform relations among Member States
from a system governed by general principles of public international law to a ‘specified
interstate governmental structure defined by a constitutional charter and constitutional
principles’.17 Since ruling in the seminal 1963 Van Gend en Loos case that the Community
13
See: Lord Mackenzie Stuart, ‘The European Communities and the Rule of Law’ [1977]
The Hamlyn Lectures, 29th series; Anthony Arnull, ‘The Rule of Law in the European Union’, in
Anthony Arnull and Daniel Wincott (eds), Accountability and Legitimacy in the European Union
(OUP 2003); and the Editorial Comments, ‘The rule of law as the backbone of the EU’ [2007]
CMLR 875.
14
Ex Art 164 of the EEC Treaty (now Art 19 TEU as amended by the Lisbon Treaty).
15
See: Laurent Pech, ‘A Union Founded on the Rule of Law: Meaning and Reality of the Rule
of Law as a Constitutional Principle of EU Law’ [2010] Eur. Const. L. Rev 359.
16
The Treaty of Lisbon renamed the whole court system of the European Union, so that
post-Lisbon the term ‘The Court of Justice of the European Union’ (CJEU) comprising two courts
– the European Court of Justice and the General Court (the Civil Service Tribunal, established in
2005, was dissolved in 2016) – is commonly used. For the sake of clarity, reference is made to the
European Court of Justice (ECJ) before the entry into force of the Lisbon Treaty, and to the CJEU
thereafter.
17
See: Susanne Schmidt, ‘The Shadow of Case Law: The Court of Justice of the European
Union and the Policy Process’ in Jeremy Richardson and Sonia Mazey (eds), European Union:
Power and Policy-Making (4th edn, Routledge, 2016); Joseph H.H. Weiler, ‘The Transformation of
Europe’ [1990–91] Yale L.J. 2403 at 2407. The literature on the role of the ECJ in the construction
of the European legal order is vast. See in particular: Karen Alter, Establishing the Supremacy of
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‘constitutes a new legal order of international law’ which ‘not only imposes obligations
on individuals but is also intended to confer upon them rights which become part of
their legal heritage’, the ECJ has been the central engine of the process of constructing a
rule-based supranational polity.18
In Van Gend en Loos itself the Court found that national courts were bound to uphold
certain rights conferred by the EEC Treaty on individuals. A year later, in the case of
Costa v. ENEL, the Court established the principle of the primacy of Community law
over conflicting national provisions, thus affirming its binding character which is a
fundamental requirement of the rule of law and – according to at least some schools
of legal theory – of law itself.19 Moreover, beginning with the Von Colson and Kamann
judgment, the Court insisted on adequate and effective remedies for individual loss
caused as the result of a breach of Community law.20 In Francovich the Court extended
this responsibility to cover state liability for damage to individuals,21 reflecting Hayek’s
litmus test by which the essence of the rule of law lies in the question whether government
is bound by rules capable of sanctioning the exercise of public power beyond its actual
legal authority.22
The subjection of all institutions exercising such authority in the EU, national and
supranational, to judicial scrutiny was forcefully asserted by the Court in its 1986 Le
Verts judgment, where the Court declared that the EC: ‘is a Community based on the
rule of law, inasmuch as neither its Member States nor its institutions can avoid a review
of the question whether the measures adopted by them are in conformity with the basic
constitutional charter, the Treaty’.23
Beyond conformity with this broad constitutional framework, over the course of
modern European integration the EU legal order has come to display the main features
which we identify with contemporary, substantive, conceptions of the rule of law, and
normally associate with the Western liberal-democratic state rather than any form of
European Law: The Making of an International Rule of Law in Europe (OUP 2001); Christian
Joerges, ‘Taking the Law Seriously: On Political Science and the Role of Law in the Process of
European Integration’ [1996] Eur. L. J. 105; Anne-Marie Burley and Walter Mattli, ‘Europe Before
the Court: A Political Theory of Legal Integration’ [1993] IO 41; Geoffrey Garrett, ‘The Politics of
Legal Integration in the European Union’ [1995] IO 170; Geoffrey Garrett, Daniel Kelemen and
Heiner Schultz, ‘The European Court of Justice, National Governments, and Legal Integration in
the European Union’ [1998] IO 149; Daniel Wincott, ‘The Role of Law or the Rule of the Court of
Justice? An Institutional Account of Judicial Politics in the European Community’ [1995] J. Eur.
Pub. Policy 583; Eric Stein, ‘Lawyers, Judges, and the Making of a Transnational Constitution’
[1981] Am. J. I. L. 1.
18
Case 26/62 NV Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse
Administratie der Belastingen [1963] ECR 1, para. 12.
19
Case 6/64 Costa (Flaminio) v. ENEL [1964] ECR 585.
20
Case 14/83 Von Colson & Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891. See also in
particular the Court’s judgment in ‘Marshall II’, Case C-271/91 Marshall v. Southampton & South
West Area Health Authority [1993] ECR I-4367.
21
Cases C-6/90 and C-9/90 Francovich & Bonifaci v. Italy [1991] ECR I-5357. The Court
explained and elaborated the basis for state liability in Case C-46/93 Brasserie du Pecheur SA v.
Germany [1996] ECR I-1029 and Case C-224/01 Gerhard Kobler v. Austria [2003] ECR I-10239.
22
Frederick A. Hayek, The Road to Serfdom (50th Anniversary edn, 1994) at 80–96.
23
Case 294/83 Le Verts v. European Parliament [1986] ECR 1139, at para. 23.
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‘international rule of law’.24 The Community legal order has evolved a dense corpus
of civil, economic, social and cultural rights, as well as administrative legality principles
such as the principle of proportionality, the connected principles of legal certainty and
protection of legitimate expectations, the principle of non-discrimination.25
Procedural safeguards of legality, such as the right of defence and access to justice
before independent and impartial courts are similarly defended by the CJEU, as part and
parcel of EU legal discourse. These are seen as being an integral part of the notion of a
Community based on the rule of law, as is adherence to the EU Charter of Fundamental
Rights, which entered into force via the Lisbon Treaty in 2009 and includes inter alia a
provision protecting the right to an effective remedy and to a fair trial.26
A RULE OF LAW CRISIS WITHIN THE EU?
Until recently both the internal (constitutional) and external branches of EU rule of
law discourse assumed, safely for the most part,27 that the Member States of the EU
themselves were each reasonably well equipped to protect the rule of law at home and
reasonably well positioned normatively to promote it abroad.
This is no longer the case.28 As EU Justice Commissioner, Viviane Reding, stated in
September 2013, in parallel with the financial crisis which the EU and its Member States
have lived through since 2009, the Union has also been confronted on several occasions
‘with a true ‘rule of law’ crisis’.29 The crisis, or series of crises, included the en masse
expulsion in 2010 by the French Government of almost 1,000 members of the Roma
minority to Romania and Bulgaria; the 2011–12 campaign of Hungarian Prime Minister
Viktor Orbán to overcome judicial opposition and constrain judicial independence by
24
See: Amichai Magen and Leonardo Morlino, ‘Hybrid Regimes, the Rule of Law, and
External Influence on Domestic Change’ in Amichai Magen and Leonardo Morlino (eds)
International Actors, Democratization, and the Rule of Law (Routledge, 2009).
25
For further analysis and references see Takis Tridimas, The General Principles of EU Law
(2nd ed, Oxford University Press, 2007, 3rd edition forthcoming in 2019). For a more succinct
overview, see European Commission, Annexes to the Commission Communication on a new EU
Framework to strengthen the Rule of Law, Annex I: The Rule of Law as a foundational principle
of the Union, COM(2014) 158 final, 11 March 2014.
26
See Article 47 in Steve Peers et al, The EU Charter of Fundamental Rights: A Commentary
(Beck/Hart Publishing, 2014).
27
A partial exception to this may be found in the Jörg Haider episode and the adoption, for
a time, of diplomatic sanctions by EU countries in 2000. Still, the Haider case was framed at the
time as a general challenge to liberal democratic values rather than the rule of law as such. See:
Michael Merlingen, Cas Mudde, and Ulrich Sedelmeier, ‘The Right and the Righteous? European
Norms, Domestic Politics and the Sanctions Against Austria’ [2001] JCMS 59; Wojciech Sadurski,
‘Adding Bite to a Bark: The Story of Article 7, EU Enlargement and Jorg Haider’ [2010] Col. J.
Eur. L. 385; Laurent Pech and Kim Lane Scheppele, ‘Didn’t the EU Learn That These Rule-of-
Law Interventions Don’t Work’, (Verfassungblog, 9 March 2018) <https://verfassungsblog.de/
didnt-the-eu-learn-that-these-rule-of-law-interventions-dont-work>
28
Kochenov and Pech, supra note 11 and Pech and Scheppele, supra note 12.
29
Viviane Reding, Vice President of the European Commission and EU Justice Commissioner,
‘The EU and the Rule of Law – What next?’ Speech, 4 September 2013 <http://europa.eu/rapid/
press-release_SPEECH-13-677_en.htm>
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forcing some 10 per cent of Hungarian judges and public prosecutors into early retire-
ment; and the 2012–13 constitutional crisis in Romania, where the government refused to
adhere to the judgments of the country’s Supreme Court.
Taken together, these episodes were understood by the Commission as both demon-
strating the increasing number of instances where national authorities consciously sought
to systematically undermine key EU values such as the rule of law, and the inadequacy of
the existing mechanisms available to the EU to address perceived systemic challenges to
the rule of law within Member States. This led the Commission to adopt in March 2014 a
new ‘Rule of Law Framework’ meant to equip the Union with a more usable mechanism
for encouraging Member State compliance with the values enshrined in Article 2 TEU in
view of the political and procedural difficulties in using the Article 7 procedure and the
limited scope of the infringement actions which the Commission may initiate when it is
of the opinion that a Member State has failed to fulfil its Treaty obligations.30
Commission President Barroso had laid the groundwork for this development in his
annual State of the Union address in September 2012 stating that: ‘We need a better
developed set of instruments, not just the alternative between the “soft power” of political
persuasion and the “nuclear option” of Article 7 TEU.’ In addition to establishing a new
but soft rule of law instrument (no legally binding decisions can be adopted on its basis),
the Commission’s 2014 Communication is highly noteworthy for providing, for the first
time, a public, comprehensive conceptualisation of the rule of law by an EU institution.
This is important not only because different legal traditions in Europe have given rise to
varying doctrines and expressions of the term and the Commission’s statement advances
a pan-European understanding of the term,31 but also because the founding Treaties
themselves provide no such definition.
The Commission’s Framework contains a definition of the rule of law which une-
quivocally recognises, and endorses, the constitutive principles imbued in a substantive,
democratic conception of the rule of law.32 In its explication of the concept’s place within
the EU order, the Commission states explicitly that the rule of law is ‘a constitutional
principle with both formal and substantive components’, that respect for the rule of law
‘is intrinsically linked to respect for democracy and for fundamental rights’ and that its
principles are in practice ‘the vehicle for ensuring compliance with and respect for democ-
racy and human rights’.33 According to the Commission, furthermore, those principles
include: ‘legality, which implies a transparent, accountable, democratic and pluralistic
process for enacting laws; legal certainty; prohibition of arbitrariness of the executive
30
European Commission, Communication from the Commission to the European Parliament
and the Council, A new EU Framework to strengthen the Rule of Law, COM(2014) 158 final/2,
19 March 2014.
31
On the different legal traditions and doctrines of European states in relation to the Rule
of Law see: Laurent Pech, ‘The Rule of Law as a Constitutional Principle of the EU’, NYU Jean
Monnet Working Papers no. 04/09; Ricardo Gosaldo-Bono, ‘The Significance of the Rule of Law
and Its Implications for the European Union and the United States, 72 University of Pittsburgh
Law Review (2010) 229, at pp. 240–58.
32
See: Amichai Magen, ‘The Rule of Law and Its Promotion Abroad: Three Problems of
Scope’ [2009] Stan. J. I. L. 51.
33
European Commission, A New EU Framework to strengthen the Rule of Law, supra note
36, at p. 4.
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powers; independent and impartial courts; effective judicial review including respect for
fundamental rights; and equality before the law’.34
Anchoring these principles in the case law of the Court of Justice, and reflecting a study
previously adopted by the Council of Europe’s ‘Venice Commission’35, Annex I of the
new Framework provides a six-part conceptualisation of the rule of law:
(1) Legality: meaning ‘a transparent. Accountable, democratic and pluralistic process

for enacting laws’.
(2) Legal certainty: requiring that ‘rules are clear and predictable and cannot be
retrospectively changed’.
(3) Prohibition on arbitrariness of the executive powers: involving, in essence, respect
for private spheres of people’s lives and ‘protection against arbitrary or dispropor-
tionate intervention’.
(4) Independent and effective judicial review, including respect for fundamental rights.
(5) The right to a fair trial and the separation of powers: meaning specifically the ‘right
to a tribunal that is independent of the executive power in particular’.
(6) Equality before the law.36
In this Framework, the European Commission emphasises that compliance with the
rule of law is ‘the backbone of any modern constitutional democracy’ and adherence to
the rule of law ‘a prerequisite for upholding all rights and obligations deriving from the
Treaties and from international law’.37 The Commission has similarly and positively
understood the rule of law as a ‘constitutional principle with both formal and substantive
components’ and one that ‘is intrinsically linked to respect for democracy and for fun-
damental rights’.38 It is submitted that this assessment accurately reflects the dominant
understanding of the rule of law in Europe and that these two aspects could be viewed
as the essential characteristics of what may be termed Europe’s rule of law approach and
which both the EU and the Council of Europe seek to uphold and promote. This is an
approach, however, that populist authoritarians have however begun to challenge. To put
it concisely, some politicians have sought to hide behind the ‘will of the people’ to justify
systemic violations of both the rule of law and human rights. To give a single example,
Poland’s de facto (supreme?) leader, Jarosław Kaczyński, has essentially ‘argued that the
will of the nation, as embodied by the ruling party, trumped the rule of law’39 when
he stated that ‘no state authority, including the constitutional tribunal, can disregard
34
Ibid.
35
Council of Europe, ‘Report on the rule of law-Adopted by the Venice Commission at its
86th plenary session’ [2011] CDL-AD (2011)003rev-e. See also Council of Europe, Rule of Law
Checklist adopted by the Venice Commission at its 106th Plenary Session (Venice, 11–12 March
2016).
36
European Commission, A new Framework to strengthen the rule of law, supra note 36,
Annexes 1–2.
37
Ibid at pp. 1 and 4.
38
Ibid. at p. 4.
39
Christian Davies, ‘Poland is ‘on road to autocracy’, says constitutional court p
resident’,
The Guardian, 18 December 2016: https://www.theguardian.com/world/2016/dec/18/poland-
is-on-road-to-autocracy-says-high-court-president
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legislation’40 regardless of whether the legislation adopted by organs controlled by the

ruling party plainly violates the Polish constitution and EU or international norms for
that matter. . .41 As rightly noted by the EU Justice Commissioner Jourová: ‘at the end of
the 18th century John Adams argued that if democracy is unchecked by law it will turn
into the tyranny of the majority. This discussion continues ever since and even in Europe
many politicians hide behind the ‘will of the people’ when they attempt to do something
legally questionable.’42
Returning to definitional issues, while embodying relevant and key principles, the
European Commission’s definition may be said to contain two sets of noteworthy
limitations. First, it eschews (more by omission than design perhaps) certain attributes
of a contemporary, democratic understanding. For example, the Commission’s defini-
tion makes no explicit mention of corruption or access to justice. Though the two
could be said to be subsumed under the general principles of legality and equality
before the law, respectively, the lack of explicit mention of these dimensions in the 2014
Communication is surprising. Second, and similarly, the principle of civilian control of
security forces – which is so central to the rule of law in much of the world – is conspicu-
ous by its absence. The omission is jarring given the European Court of Human Rights’
finding that several EU Member State security services and governments colluded in
the running of clandestine CIA detention and interrogation centres in the aftermath of
the 9/11 attacks.43
Three additional sub-components are also notably missing from the European
Commission’s ostensibly comprehensive taxonomy of rule of law requirements: the
principle of accessibility of the law, which requires that the law must be intelligible, clear,
predictable, and published; the principle of the protection of legitimate expectations; and
the principle of proportionality. Still, there is genuine value in the Commission’s 2014
articulation of a six-part definition of the rule of law as well as its assertion that this
working definition not only reflects the constitutional traditions common to the main
European legal systems, but may also be said to define, for the first time, the core meaning
of the rule of law within the EU legal order.
Lastly, neither the Commission nor the remaining EU institutions have sought to
40
Ibid.
41
To give a single concrete example, the Polish government gave itself the power, in open viola-
tion of the Polish Constitution, to refuse to publish (in order to deprive them of any legal effect
under national law) some judgments of the Polish Constitutional Tribunal issued in 2016. And once
the ruling party completed the unconstitutional capture of the Tribunal at the end of December
2016 via some unlawful appointments, the unpublished rulings, without any explanations, disap-
peared from the tribunal’s website a few months later. . . As noted by Christian Davies, ‘the destruc-
tion of the rule of law in Poland needs to be seen not as some worrying future prospect but a near
fait accompli that the European Union, the international community, and above all, Polish society
itself has failed to prevent’. See Davies, Hostile Takeover: How Law and Justice Captured Poland’s
Courts, Nations in Transit brief, Freedom House, May 2018, p. 6.
42
Vĕra Jourová, Speech at the High level seminar: Finland 100 years – Finnish and
European perspectives to the Rule of Law, 31 October 2017: https://ec.europa.eu/commission/
commissioners/2014-2019/jourova/announcements/speech-commissioner-jourova-high-level-semin
ar-finland-100-years-finnish-and-european-perspectives_en
43
See ECtHR, Case 28761/11 Al Nashiri v. Poland, 24 July 2014.
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clearly distinguish the rule of law from the other foundational values listed in Article
2 TEU or draw conceptual boundaries between it and its sister concepts: ‘democracy’
and ‘human rights’. Nor have the EU institutions so far ventured to or explain in
details how the rule of law enables the proper functioning of either. This is regrettable,
particularly as the instigation of an Article 7 TEU procedure is dependent upon a clear
risk of a serious and persistent breach of the ‘values’ (plural) referred to in Article 2
TEU, not the rule of law per se albeit we agree with the Commission when it noted
in its reasoned Article 7(1) proposal regarding the rule of law situation in Poland,
that ‘respect for the rule of law is not only a prerequisite for the protection of all the
fundamental values listed in Article 2 TEU’ but ‘is also a prerequisite for upholding all
rights and obligations deriving from the Treaties and for establishing mutual trust of
citizens, businesses and national authorities in the legal systems of all other Member
States’ as well as essential for both ‘the seamless operation of the Internal Market
because economic operators need to have the certainty that they will be treated equally
under the law’ and ‘mutual trust in the area of justice and home affairs, in particular
for effective judicial cooperation in civil and criminal matters which is based on mutual
recognition’.44
WHY THE RULE OF LAW MATTERS IN EU RESEARCH
Four Main Areas of Identity and Activity
Respect for the rule of law, and the maintenance of at least reasonably effective rule of
law institutions and practices, are the central attributes of modern, functioning, legitimate
political order.45 In this most rudimentary sense, the EU’s relation to the concept is no
different from that of other contemporary liberal polities. In the last 50 years, however,
the rule of law emerged as a central dimension in four distinctive core areas of EC/EU
identity and activity.
First, and most fundamentally, as a value upon which the Union is explicitly founded
and which is said to be ‘common to the Member States’ according to Article 2 TEU, the
rule of law is part and parcel of the Union’s DNA and the assumed shared patrimony of
each of its members. As such, it can be understood as providing the normative glue that
holds the entire political and legal edifice together. Historically, as we demonstrated above,
the rule of law offered a potent rationale for the self-construction of that edifice. As previ-
ously analysed, in the landmark 1986 case of Le Verts v. Parliament, the Court of Justice
famously referred, for the first time, to what was then known as the EEC as ‘a Community
based on the rule of law’.46 Similarly today, the functioning of what is now known as the
EU relies upon the veracity of the working assumption that all Member States are fully
committed to and broadly in compliance with the principles listed in Article 2 TEU. As
44
Commission proposal for a Council Decision on the determination of a clear risk of a
serious breach by the Republic of Poland of the rule of law, 2017/0360 (APP), 20 December 2017,
recitals 11–13.
45
See: Francis Fukuyama, ‘Why is Democracy Performing So Poorly?’ [2015] J. Dem. 11.
46
Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament [1986] ECR 1986-1339.
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the Court of Justice put it, in its December 2014 Opinion on EU accession to the ECHR,
the Union’s structure is:
. . .based on the fundamental premise that each Member State shares with all the other Member
States, and recognizes that they share with it, a set of common values on which the EU is
founded, as stated in Article 2 TEU. That premise implies and justifies the existence of mutual
trust between the Member States. . ..47
Where this fundamental premise is challenged and mutual trust in the rule of law
conditions of one or more Member State is eroded, the Union’s DNA is corrupted and
the edifice is in danger of decaying.48
The potential for loss of trust should not be viewed in isolation, but in the broader
context of Europe’s present economic, financial, and migration woes. That said, govern-
mental attacks on the rule of law in some EU countries, such as Hungary and Poland
– where they are however presented, in a rather Orwellian way, as ‘judicial reforms’ – and
the potential abandonment of the foundational European values enshrined in Article 2
TEU threaten not only the functioning of the EU’s internal market but the very existence
of the EU. Indeed, the solidification of quasi-authoritarian regimes within the EU itself
undermines the reason for its existence as well as threatens the functioning of a legal
framework which, as noted above, is said to be based on the fundamental premise that
each Member State complies with the core elements of the rule of law. Unfortunately, this
should not be viewed as a purely abstract concern in the light for instance of Hungary and
Poland’s seemingly inexorable descent into authoritarianism.
Second, high levels of trust in the rule of law institutions of Member States represent
the bedrock upon which the core Internal Market acquis and, a fortiori, the Area of
Freedom, Security, and Justice (AFSJ) rests.49 The latter extends as far as the European
Arrest Warrant (EAW), which removed extradition safeguards for a criminal suspect
or sentenced person in favour of a Union-wide arrest and transfer system at the simple
bequest of any Member State. The principles that underlie police, prosecutorial and judi-
cial cooperation in these matters of life and liberty are solidarity and mutual-recognition.
Neither can be said to truly exist where confidence in the rule of law conditions of one or
47
Opinion 2/13 of the Court of Justice of the EU, Accession to the ECHR (II), 18 December
2014, para. 168.
48
See: Amichai Magen, ‘Cracks in the Foundations: Understanding the Great Rule of Law
Debate in the EU’, [2016] JCMS 1050; Laurent Pech and Kim Lane Scheppele, ‘Poland and the
European Commission, Part I: Dialogue of the Deaf’ (Verfassungblog, 3 January 2017) < http://
verfassungsblog.de/poland-and-the-european-commission-part-i-a-dialogue-of-the-deaf/>; Laurent
Pech and Kim Lane Scheppele, ‘Poland and the European Commission, Part II: Hearing the Siren
Song of the Rule of Law’ (Verfassungblog, 6 January 2017) < http://verfassungsblog.de/poland-and-
the-european-commission-part-ii-hearing-the-siren-song-of-the-rule-of-law/>; Laurent Pech and
Kim Lane Scheppele, ‘Poland and the European Commission, Part III Requiem for the Rule of Law
(Verfassungblog, 3 March 2017) < http://verfassungsblog.de/poland-and-the-european-commission-
part-iii-requiem-for-the-rule-of-law/>.
49
See: Sarah Wolff, ‘The Rule of Law in the Area of Freedom, Security and Justice: Monitoring
at Home What the European Union Preaches Abroad’ [2013] Hague J. Rule of Law 119–31; Dimitry
Kochenov, ‘EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It?’ [2015] Y.B.
Eur. L.74.
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more EU country is seriously questioned or obviously, when an EU country has ceased

to be a democratic regime based on the rule of law, which is arguably already the case
with Hungary.50 One may also note a recent and unprecedented ruling in which the Irish
Court concluded that the rule of law in Poland has been so ‘systematically damaged by
the cumulative impact of all the legislative changes that have taken place over the last two
years’51 that the Court of Justice must now decide whether the principle of mutual trust
should not be set aside as far as Poland is concerned. Viewed in this light, one may easily
understand why it would be ill advised to view the ‘values crisis’ as less urgent than the
other European crises.
Thirdly, having first entered the DNA of European integration in the 1980s as
an internal, constitutional principle, the rule of law assumed an external role in the
aftermath of the Cold War, as the Community began to contemplate expansion of
membership into the post-Communist world. Since 1992, Article 49 TEU has made
respect for the rule of law an eligibility criterion for EU membership and the 1993
Copenhagen Criteria require candidates to ensure stability of institutions guaranteeing
it, as a precondition for accession. In this regard, the current systematic dismantlement
of all checks and balances one may witness in Hungary and Poland, represent a failure
of the pre-accession strategy and amount to a poignant vindication of those who feared
that some candidates’ commitment to EU values was incomplete or shallow at the time
of accession and after.52
A similar conclusion can be drawn from the fact that the two EU countries which
have been subject to a special post-accession rule of law monitoring mechanism since
2007, that is, Romania and Bulgaria, are still subject to what is known as the EU’s
‘Co-operation and Verification Mechanism’ more than ten years later. This seems not
only to demonstrate the limited effectiveness of the special mechanism but, more impor-
tantly perhaps, to demonstrate a clear failure to properly assess or to draw the necessary
conclusions from these countries’ rule of law shortcomings during the pre-accession
negotiations.
The resulting loss of confidence in the transformative-engagement capacity of the
EU vis-à-vis candidates and potential candidates bodes ill for the future credibility
of EU membership conditionality and its ability to affect positive democratic change
among them. The adoption of a so-called ‘new rule of law approach’ in 2012, which
aims to place the rule of law at the heart of the EU’s enlargement policy and demands
from candidate countries the continuing demonstration of ‘their ability to strengthen
the practical realisation’ of the Union’s values ‘at all stages of the accession process’,
while welcome, is unlikely to fundamentally alter the pessimistic diagnosis offered above
in the absence of other changes to how the EU promotes the rule of law in candidate
50
See e.g. European Parliament resolution of 17 May 2017 on the situation in Hungary
(2017/2656(RSP)).
51
High Court of Ireland, The Minister for Justice and Equality and Artur Celmer, Records
Nos 2013 EXT 295, 2014 EXT 8, 2017 EXT 291, 12 March 2018.
52
See: Magen and Morlino, supra note 25; Ulrich Sedelmeier, ‘After Conditionality: Post-
accession Compliance with EU Law in East Central Europe’ [2008] JEPP 806; Linka Toneva-
Metodieva, ‘Beyond the Carrots and Sticks Paradigm: The Cooperation and Verification
Mechanism Experience of Bulgaria and Romania’ [2014] Perspectives Eur. Pol. and Society 534.
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countries.53 To even discuss in 2018 the possible EU accession of Western Balkan coun-
tries in 202554 is delusional considering the extent to the structural and interconnected
rule of law issues affecting these countries, which the Commission has itself explicitly
recognised:
Today, the countries show clear elements of state capture, including links with organised crime
and corruption at all levels of government and administration, as well as a strong entanglement
of public and private interests. All this feeds a sentiment of impunity and inequality. There is also
extensive political interference in and control of the media. A visibly empowered and independ-
ent judiciary and accountable governments and administrations are essential for bringing about
the lasting societal change that is needed.55
To think that these problems can be seriously addressed in a couple of years by another
‘flagship initiative to strengthen the rule of law in the Western Balkans’56 is just not
credible.
The fourth and final main area where the rule of law plays a central role in the Union’s
identity and activities pertains to its external relations and self-understanding as a
global actor committed to the deepening of a liberal international order. Article 21(1)
TFEU prescribes that the: ‘Union’s action on the international scene shall be guided by
the principles which have inspired its own creation, development and enlargement, and
which it seeks to advance in the wider world: democracy, the rule of law. . .’ The same
provision mandates that the Union shall build ‘partnerships with third countries, and
international, regional or global organisations which share these principles’.
That the internal integrity of democratic and rule of law conditions within the Union
is intimately linked to the EU’s external ability to credibly cooperate with others on
the subject and promote the rule of law abroad, is both intuitively correct and clearly
recognised by EU leaders. The point is hinted at in the Commission’s 2014 rule of law
Framework – which states that ‘those aspects of the rule of law as a common denominator
of the Union are fully reflected at the level of the Council of Europe’57 – and forcefully
articulated by Frans Timmermans, appointed in November 2014 as First Vice-President
of the European Commission in charge of inter alia the rule of law. In an August 2015
speech, he asserted that for Europe ‘the rule of law is not just an inspiration, it is also an
aspiration; a principle that guides both our internal and external actions; it is what we are
and what we want to be’.58
Developing the internal-external linkage theme, Timmermans emphasises that the
international dimension of the rule of law represents a ‘crucial element of Europe’s
53
See: Kochenov and Pech, supra note 11.
54
Reuters, ‘EU tells Balkan states 2025 entry possible for all’, 25 February 2018, https://
uk.reuters.com/article/uk-eu-balkans-albania/eu-tells-balkan-states-2025-entry-possible-for-all-id
UKKCN1G90XU
55
European Commission, A credible enlargement perspective for and enhanced EU engage-
ment with the Western Balkans, COM(2018) 65 final, 6 February 2018 at p. 3.
56
Ibid., p. 10
57
European Commission, A new Framework to strengthen the rule of law, supra note 36 at
p. 2.
58
Frans Timmermans, ‘The European Union and the Rule of Law – Keynote Speech at
Conference on the Rule of Law’, Tilburg University, 31 August 2015.
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self-image, though one that is all too often overlooked’ and connects the EU’s internal
commitment to the rule of law to Europe’s ability to lead on the issue vis-à-vis a host of
international fora, including the CoE, World Trade Organization, International Court
of Justice, and the UN. A year earlier, referring to the UN Declaration on the Rule of
Law,59 the EU’s representative to the UN, similarly announced that the: ‘rule of law is of
critical importance for the EU’s external action’, and promised that the Union would act
zealously to promote it at both the national and international levels.60
Given the present intra-EU rule of law crisis, it is hardly surprising that critics accuse
the EU of double standards, pointing to a jarring gap between the EU’s strong rhetoric in
internal fora and its clear failure to address persistent and serious rule of law backsliding
in some of its Member States. A similar gap between rhetoric and action could be said
to generally characterise the EU’s external promotion of its values.61 The glaring gap
between the EU’s strong pro-rule of law rhetoric and its actions (or lack thereof) in a
number of areas has only become worse in recent times following the EU institutions’
failure to seriously address democratic and rule of law backsliding within the Union
itself,62 although one may note the seemingly increasing realisation among key EU
players that this is an existential problem which needs to be urgently tackled. One may
quote in this respect the French president, Emmanuel Macron, who in a clear but implicit
reference to the situation in Hungary and Poland said that ‘in the face of authoritarian-
ism, the response is not authoritarian democracy but the authority of democracy.’63 The
Commission has also recently crossed a financial rubicon by advocating for the very first
time to explicitly link continuing access to EU funds as a whole with compliance with
the rule of law.64
59
United Nations, United Nations General Assembly Resolution 67/1, ‘Declaration of the
High-Level Meeting on the Rule of Law at the National and International Levels’, A/RES/67/1, 24
September 2012.
60
Statement on behalf of the EU and its Member States by Gilles Marhic, Minister Counsellor,
Delegation of the EU to the UN, at the Sixth Committee on Agenda item 83: The Rule of Law at
the national and international levels (10 October 2014).
61
For further analysis in the areas of human rights and rule of law, see: Laurent Pech, ‘The
EU as a Global ‘Rule of Law Promoter’: The Consistency and Effectiveness Challenges’ [2016]
14(1) Europe-Asia Journal 7; Annabel Egan and Laurent Pech, ‘Respect for Human Rights as a
General Objective of the EU’s External Action’, in Sionaidh Douglas-Scott and Nicholas Hatzis
(ed), Research Handbook on EU Law and Human Rights (2017), p. 243.
62
See: Dimitry Kochenov, Amichai Magen, and Laurent Pech, ‘Introduction: The Great Rule
of Law Debate in the EU’ [2016] JCMS 1045.
63
Steven Erlanger, ‘Fight over values risks a ‘European civil war’, Macron Says’, The New York
Times, 17 April 2018.
64
Commission proposal for a regulation on the protection of the Union’s budget in case of
generalised deficiencies as regards the rule of law in the Member States, COM(2018) 324 final,
2 May 2018. In a nutshell, in a situation where the sound financial management of the financial
interests of the EU is at stake due to a ‘generalised deficiency’ in the rule of law in a specific EU
country, the EU could suspend, reduce or restrict access to EU funding as far as this country is
concerned.
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THE EU-RULE OF LAW NEXUS: KEY DEBATES AND

CRITIQUES
While the leading indices on democratic quality in the countries of the world consistently
provide generally favourable evaluations of the rule of law conditions enjoyed by EU
citizens, observance of the rule of law in the EU legal order remains deficient in several
respects.
Access to Justice
There is a longstanding set of rule of law related problems pertaining to access to the
EU courts. The post-1992 EU’s constitutional framework could be said to contain in
this respect a serious ‘rule of law deficit’. By putting an end to the so-called three-pillar
structure and making fundamental changes to the jurisdiction of the CJEU,65 principally
as regards Justice and Home Affairs measures, the Lisbon Treaty largely remedied the
structural deficiencies identified above and undoubtedly strengthened the coherence
of the judicial system of the Union, thereby bolstering the protection of the ‘rule of
law’.66 That being said, a number of problems remain: for instance, the duration of
proceedings before the EU courts continue to be excessively long, although a number
of recent but controversial reforms might lead in time to some improvements on this
front.67
A recurrent problem concerns access to justice and the right to an effective remedy:
a sharp distinction persists in EU law between privileged (Member States and EU
institutions) and non-privileged plaintiffs (natural and legal persons) when it comes to
bringing annulment proceedings before the EU courts. The latter are most likely to have
their applications deemed inadmissible without examination of their merit for failing to
satisfy the EU’s strict not to say severe legal standing rules for natural and legal persons.
Attempts to relax the standing rules applied to non-privileged litigants have for the most
part failed, and the Lisbon Treaty positively, yet only marginally, eases the conditions for
the admissibility of annulment actions brought by natural or legal persons. Any natural
or legal person may now institute proceedings against an act addressed to that person or
which is of direct and individual concern to them, or against a regulatory act which is of
direct concern to them and does not entail implementing measures.68 Jurists have generally
welcomed this change although most have also deplored both the ambiguous nature of the
new and undefined notion of regulatory act and the modest nature of the improvement
made to the pre-Lisbon admissibility conditions.
65
Article 19(1) TEU provides that the Court of Justice of the European Union includes the
Court of Justice, the General Court (formerly known as the Court of First Instance) and special-
ised courts (formerly known as judicial panels). See: Rene Barents, ‘The Court of Justice After the
Treaty of Lisbon’ [2010] CMLR 709.
66
Koen Lenaerts, ‘The Rule of Law and the Coherence of the Judicial System of the European
Union’ [2007] CMLR 1625.
67
Alberto Alemanno and Laurent Pech, ‘Thinking Justice Outside the Docket: A Critical
Assessment of the Reform of the EU’s Court System’ (2017) CMLR 129.
68
Article 263(4) TFEU.
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Furthermore, there still is no special remedy for violation of EU fundamental rights.

Future EU accession to the ECHR will ostensibly lead to new remedies and may make
more tolerable the absence of a right of direct and special appeal to the CJEU against
any EU act in violation of EU fundamental rights. The difficulty is that EU accession to
the ECHR is unlikely to happen anytime soon following the adoption on 18 December
2014 of a widely-criticised opinion by the Court of Justice in which it concluded that
the 2013 draft accession agreement is not compatible with the EU Treaties as they
stand.69
Legislation and Participation
Deviating from the basic requirements of clarity and coherence, European legislation
has also been criticised for its complexity and opaqueness.70 This is however a recurrent
criticism in most modern democracies as they have all witnessed increasingly complex
decision-making processes involving an increasing number of actors both at the national
and supranational levels. Furthermore, the EU is aware of the problem and has sought to
address it via successive ‘better regulation’ or ‘smart regulation’ agendas, as well as ‘better
law-making’ initiatives.71 Indeed, the broader aim pursued by these agendas and initia-
tives can all be connected to the Commission’s White Paper on European Governance
published in 2001.72
In a nutshell, EU institutions have sought to increase ‘democratic input’ and consoli-
date the Union’s legitimacy but rather than doing so via the application of mechanisms
associated with the model of parliamentary democracy, the better/smart regulation
agendas assume that democratic legitimacy can be derived from improved procedures
guaranteeing better participation from relevant stakeholders. As Jérôme Vignon (Chief
Adviser responsible for the White Paper on European Governance) put it, the Union’s
democratic legitimacy crisis does not originate from ‘the absence of a parliamentary
institution analogous to that found at the centre of national public life’ but ‘from
the procedures of the European Community, which have become formal rather than
genuine’.73 Accordingly, ‘procedural’ reforms should be undertaken with the aims of
69
See: Steve Peers, ‘The EU’s Accession to the ECHR: The Dream Becomes a Nightmare’
[2015] German L. J. 214.
70
Alfred E. Kellermann, Giuseppe Ciavarini Azzi, Rex Deighton-Smith, Scott H. Jacobs and
T. Koopmans, Improving the Quality of Legislation in Europe (Brill, 1998); Christiaan Timmermans,
How can one Improve the Quality of Community Legislation? (1997) 34 CMLR 1229.
71
On ‘smart regulation’ see: European Commission, Communication on Smart Regulation in
the EU, COM(2010) 543 final and Communication on Better regulation for better results – An EU
agenda, COM(2015) 215 final. On efforts at ‘better law-making’ see the Interinstitutional Agreement
between the European Parliament, the Council of the EU and the European Commission on Better
Law-Making [2016] OJ L 123/1.
72
European Commission, European Governance. A White Paper, COM(2001) 428 final. For
a critical appraisal of the White Paper, see: Joseph H.H. Weiler et al., ‘Mountain or Molehill? A
Critical Appraisal of the Commission White Paper on Governance’, [2001] Jean Monnet Working
Paper 6/01.
73
Jerome Vignon, ‘Preface’, in Olivier de Schutter, Notis Lebessis and John Paterson (eds),
Governance in the European Union (European Commission, 2001) 4.
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improving public deliberation, consultation and ‘active citizenship’. In the words of

Renaud Dehousse, the main advantages of what he calls the ‘procedural avenue’ (another
expression for governance) are twofold:
An extensive dialogue with the various segments of civil society would obviate some of the
shortcomings of representative democracy at the European level, by enabling those who so wish
to have a say in the decision-making process. In so doing, one might enhance the legitimacy of
decisions taken by European bodies . . . A greater openness of the decision-making process also
improves public awareness of the issues discussed at the European level, thereby contributing to
the emergence of a truly pan-European public sphere.74
Remarkably, this participatory model of democracy has found its way into the EU Treaties
via the enshrinement in Article 11 TEU (a provision introduced by the Lisbon Treaty) of
a certain number of duties to European institutions. As Article 11 TEU itself provides:
1. The institutions shall, by appropriate means, give citizens and representative associations the
opportunity to make known and publicly exchange their views in all areas of Union action.
2. The institutions shall maintain an open, transparent, and regular dialogue with representa-
tive associations and civil society.
3. The Commission shall carry out broad consultations with parties concerned in order to
ensure that the Union’s actions are coherent and transparent.
The new provision on participatory democracy quite clearly reflects the influence of
the new ‘European governance’ agenda first launched by the European Commission in
2000. It has two key features: broad participation of stakeholders (see the references
to ‘citizens’, ‘representative associations’, ‘parties concerned’ and ‘civil society’); and
public deliberation (‘publicly exchange’, ‘transparent’, or ‘broad consultations’). Both
may at least promote the first core element of the rule of law, that is, the principle of
legality, which, according to the Commission itself, implies a ‘transparent, accountable,
democratic and pluralistic process for enacting laws’.75
Nevertheless, several problems with the idea of increasing public participation in EU
decision-making remain. One essential question is how to guarantee the effective partici-
pation of individuals lacking the resources to advocate for their interests in Brussels.76
Accordingly, the decision-making process is likely to ‘remain the monopoly of already
organised groups, while ordinary citizens will not be encouraged to become more
active’.77 However, such criticism is also valid as far as national consultation mechanisms
are concerned.
74
Renaude Dehousse, ‘European Governance in Search of Legitimacy’ in Olivier de Schutter,
Notis Lebessis and John Paterson (eds), Governance in the European Union (European Commission,
2001), 182.
75
European Commission, A new Framework to strengthen the rule of law, supra note 36 at
p. 4.
76
On this topic, see Alberto Alemanno, Lobbying for change: Find your voice to create a better
society (Icon books, 2017) whose key argument is that instead of focusing on referenda and direct
democracy, citizens can shape and change policies by becoming ‘citizen lobbyists’.
77
Paul Magnette, ‘European Governance and Civic Participation: Beyond Elitist Citizenship?’,
[2003] Pol. Stud. 144, p. 147. If the author recognises the elitist nature of European citizenship, he
argues that from such a fact cannot be derived the conclusion that the system is not democratic.
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The apparent ‘privatisation’ of policy-making could be another source of concern.

For instance, co-regulation (the process that combines binding legislative and regulatory
action with actions taken by the actors most concerned) may give ‘wider ownership of
the policies in question by involving those most affected by implementing rules in their
preparation and enforcement’.78 There is a risk, however, of policy-making being
hijacked by private interests without any increase in accountability. Proponents of soft law
and alternative modes of law-making argue that through these measures EU governance,
and even democracy, are effectively strengthened in that these methods promote informa-
tion exchange, flexibility, and efficiency in decision-making. They replace contentious
inter-governmental bargaining with more cooperative deliberative supranationalism, and
can allow for rule-setting where legislation would otherwise be impossible.79 As Cini
observes, however, this benign view glosses over some genuine dangers inherent in infor-
mal rule-making. In addition to soliciting voluntary compliance (an unstable foundation
for consistent and predictable rules) soft law-making bypasses institutions of democratic
accountability, allows unelected bureaucrats and experts to dominate the policy process,
and its products tend to be inaccessible and opaque.80 Yet again, this problem is not
specific to the EU; the inadequacies and risks one could derive from the governance
toolkit also apply at the national level.
Democratic Deficit and the Rule of Law
The improved participatory mechanisms at the EU level described above may be viewed as
insufficient to address the oft-assumed tension between the EU’s ‘democratic deficit’ and
the thicker notion of the rule of law, which carries a democratic character as part of its
normative construction.81 But the acerbic debate surrounding the question of whether or
not (or to what degree) the EU is afflicted by a fundamental ‘democratic deficit’, as well
as whether the alleged deficit is rectifiable, to a large extent itself revolves around choices
about appropriate framing and applicable standards.
One approach essentially views the EU as a sui generis multi-level governance system
which is incomparable with strictly national state systems and therefore ought to be
judged by different standards of legitimacy. Viewed through this prism, the EU possesses
a democratic process for enacting laws and as such, there is no fundamental tension
between the EU’s institutional framework and the thicker notion of the rule of law. In
this context, the EU’s institutional architecture and decision-making process reflect the
twofold legitimacy of the EU as a union of states and of citizens on which competences
have been conferred to meet common objectives.
What appears more problematic, to follow his challenging line of reasoning, is that European
civic apathy is likely to remain as the governance exercise does not ‘politicise’ the decision-making
process.
78
European Commission, White Paper on European Governance, supra note 78, p. 21.
79
See in particular: Burkard Eberlein and Dieter Kerwer, ‘New Governance in the European
Union: A Theoretical Perspective’ [2004] JCMS 121.
80
Michelle Cini, ‘The Soft Law Approach: Commission Rule-making in the EU’s State Aid
Regime’ [2001] JEPP 192, p. 194.
81
See: Magen and Morlino, supra note 25.
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In other words, the legitimacy of the EU’s institutional architecture flows from two
sources: the Member States, which are represented at the EU level in the European Council
by their Heads of State or Government and in the Council by their governments which are
democratically accountable to their national Parliaments, and the European Parliament,
which is directly elected and represents European citizens. To argue that the Union’s unique
institutional architecture is democratically deficient is to assume that the EU shall become
something very different from what it currently is. As Charles Leben put it:
The reproach related to the democratic deficit implies that the Community (and beyond it, the
Union) is regarded as something different from a mere international organisation. . .It supposes
that the ultimate basis of the legitimacy of the institution being talked of is the people, the people
of the Union, the people who are, in democratic theory, sovereign, taking decisions either by
themselves or through their representatives, and controlling the executive.82
Thus, analogies with national democracies should always be used with care. They may
help in making sense of the EU but they may also lead to evaluations of the EU in light
of an idealised model of democracy, whose development is inextricably linked to the
modern nation-state. Furthermore, critics do not make their understanding of the EU
sufficiently clear: it certainly suffers from some democratic deficit if one’s assumption is
that the Union’s finalité is to transform itself into some kind of United States of Europe.
However, the democratic deficit charge is likely to become insignificant if the EU is
accepted for what it currently is: a set of institutions (and not a state) reflecting the will
of the citizens and States of Europe, with conferred and limited competences under the
ultimate authority of the Member States.
This is why the so-called ‘Community method’ can arguably be viewed as a satisfac-
tory democratic decision-making process. While the independence and powers of the
European Commission allows it to function, not as a government, but as the effective
guardian of the European interest, the association of the Council of Ministers and the
European Parliament in the adoption of legislative and budgetary acts, under the control
of the ECJ, perfectly embodies the dual legitimacy of the Union.83
To preserve the EU’s legitimacy, one might argue against developing further the
majoritarian features of the European decision-making process in the name of ‘more
democracy’ in the absence of a European demos. Ultimately, what matters with regard
to an entity with conferred and limited competences, according to this approach, is that
constitutional checks and balances, indirect democratic control via national governments,
and the increasing powers of the European Parliament are sufficient to ensure that EU
policy-making is, in nearly all cases, clean, transparent, effective, and responsive to the
demands of European citizens. Further steps should certainly be taken to improve the
democratic life of the EU but the same can be said of every single democratic country.
82
Charles Leben, ‘A Federation of Nation States or Federal State’, in Christian Joerges, Yves
Mény, and Joseph H.H. Weiler (eds), What Kind of Constitution for what Kind of Polity? (Florence:
The Robert Schuman Centre for Advanced Studies, 2000) 99.
83
For further details on the ‘Community method’ and the impact of the institutional changes
made by the Lisbon Treaty, see: Laurent Pech, ‘The Institutional Development of the EU: A
Case of Plus Ca Change. . .?’ in Nicola Countouris et al. (eds), The EU after the Treaty of Lisbon
(Cambridge University Press, 2012), pp. 1–46.
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There is however an alternative view which looks beyond the formal structures
and procedures of the EU to ask whether the Union can attain sufficiently robust
and enduring popular acceptance, so as to ground its legitimacy in the ‘hearts and
minds’ of EU citizens. As Zurn and Wolf observe in this context: ‘In order to be an
effective fulcrum, or to secure legal quality, social relations must be internalised, not
only politically and legally, but also socially.’84 In this fundamental respect the EU
legal order has achieved a high degree of political and legal internalisation, but in
comparison to the modern democratic nation state still suffers from inadequate social
internalisation.
From the perspective of legal theory, the EU’s ‘democratic deficit’ can be understood
as emanating from three sets of deficiencies associated with different theoretical orienta-
tions. First, following the classical, Austinian perspective, EU law is deficient in that a
monopoly of force does ultimately not underpin it. For realists, compliance with EU
rules remains a mystery. Second, as Thomas Franck’s theory of legitimacy and fairness
contends, social regulations count as law where, first, they are perceived by the population
to which they are addressed to conform to general precepts and justice and fairness and,
second, where they are produced through a process perceived to be legitimate and fair.
Where regulations are made through a process perceived by the addressees to be distant,
unaccountable or illegitimate (terms often associated in European citizen’s minds with
‘Brussels’) social internalisation – what Harold Koh calls ‘obedience’ – of legal norms is
deficient. And third, in the view of legal theorists associated most strongly with Jürgen
Habermas, law is a feature of a society; its role being primarily as a transformer of nor-
matively meaningful messages through society, and the form through which normatively
authoritative communications can run through its members.85 Law, according to this view
possesses a socially integrative function of its own, but it also presupposes the existence
of a common language and a pre-existing social linkage between law and the individual to
which it is addressed. Where such a linkage is absent or weak – where there is no political
public or demos – social internalisation is deficient and the legal quality of a given order
is diminished.86 In this sense the EU can be said to be located on a continuum between
the ‘high quality’ rule of law in the modern democratic nation-state and ‘low quality’ of
international law.87
Finally, the emergence of a series of rule of law crises among some EU Member States,
has led some commentators to argue that the alleged democratic deficit of the EU as
an entity pales in comparison to challenge presented by Member State infractions. As
Kelemen observes:
84
Michael Zurn and Dieter Wolf, ‘European Law and International Regimes: The Features of
Law Beyond the Nation State’ [1999] ELJ 5 272, p. 274.
85
Zurn and Wolf, ibid.; Jürgen Habermas, ‘Law as Medium and Law as Institution’, in
Gunther Teubner (ed.) Dilemmas of Law in the Welfare State (de Gruyter, 1985) pp. 203–20;
Jürgen Habermas, ‘On the Relation between the Nation, Rule of Law, and Democracy’, in Jürgen
Habermas (ed.) The Inclusion of the Other (MIT Press, 1988) pp. 128–54.
86
Dieter Grimm, ‘Does Europe Need a Constitution?’ 1 European Law Journal 1 (1995);
Dieter Fuchs and Hans-Dieter Klingemann, ‘Eastern Enlargement of the European Union and the
Identity of Europe’ (2002) 25 West European Politics 19.
87
See: Chs 1, 6 and 7 in Michael Zurn and Christian Joerges (eds), Law and Governance in
Postnational Europe: Compliance Beyond the Nation State (CUP, 2005).
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With some EU member states now sliding towards authoritarianism, we can look back with nos-
talgia on the days when scholars believed the greatest threats to democracy in Europe stemmed
from the EU’s own democratic shortcomings. Today, clearly, the greatest threats to democracy in
Europe are found not at the EU level, but at the national level in the EU’s nascent autocracies . . .
Rather than focusing on exaggerated claims of how the EU’s democratic shortcomings threaten
national democracies, scholars should examine how and why profound democratic deficits at the
national level (bordering on authoritarianism) emerge and persist within Europe’s quasi-federal
union that professes a commitment to democracy.88
While not neglecting the EU’s shortcomings, Kelemen’s call for ‘democratic deficit’
scholars to refocus their attention on the rise of so-called ‘illiberal democracies’ within the
EU is sound. Moreover, there are growing signs that other EU institutions, most notably
the European Parliament, will become more engaged in efforts to protect and deepen
both Member State and overall EU commitment to advanced rule of law standards. This
can be observed in the adoption of by the Parliament of a proposed mechanism whose
rapporteur – MEP Sophie in’t Veld (ALDE, NL) – justified as follows:
We have provided the European Union with the instruments to enforce all the other policy
areas – competition policies, police and justice cooperation, foreign policies (. . .), but our core
values are not protected by instruments that are sufficiently strong to make sure that the values
are upheld throughout the European Union.89
Passed by 405 votes to 171, the new contemplated mechanism, which would subject all
EU Member States to a new, permanent process of monitoring and reporting, integrat-
ing all existing mechanisms such as the 2014 Commission’s Rule of Law Framework, is
unlikely however to ever materialise. Indeed, in a recent response to the adoption of this
proposal, the Commission made clear its ‘serious doubts about the need and the feasibility
of an annual Report and a policy cycle on democracy, the rule of law and fundamental
rights prepared by a committee of ‘experts’ and about the need for, feasibility and added
value of an inter-institutional agreement on this matter’ and instead advocated for ‘the
best possible use should be made of existing instruments’.90 We find this lukewarm answer
highly disappointing and one can be forgiven for considering this as the latest piece of
evidence pointing out towards a Commission unwilling to fulfil its responsibilities at the
risk of rendering it irrelevant when it comes to upholding and safeguarding the rule of
law in the EU.91
88
Daniel Kelemen, ‘Europe’s Other Democratic Deficit: National Authoritarianism in Europe’s
Democratic Union’ (2017) Gov. and Opposition 211, p. 212.
89
European Parliament, Press Release, MEP’s call for EU democracy, rule of law, and
fundamental rights watchdog (October 25, 2016) < http://www.europarl.europa.eu/news/en/
news-room/20161020IPR47863/meps-call-for-eu-democracy-rule-of-law-and-fundamental-rights-
watchdog>.
90
European Commission, Follow up to the European Parliament resolution on with recom-
mendations to the Commission on the establishment of an EU mechanism on democracy, the rule
of law and fundamental rights, SP(2017)16, 17 February 2017: http://www.europarl.europa.eu/
oeil-mobile/fiche-procedure/2015/2254(INL).
91
Petra Bard and Sergio Carrera, ‘The Commission’s Decision on ‘Less EU’ in Safeguarding
the Rule of Law: A play in Four Acts’, [2017] CEPS Policy Insights 2017/08.
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CONCLUSION
The notion of the rule of law has been part and parcel of the normative and institutional
DNA of what is now the EU since the inception of modern European integration in
the aftermath of World War II. This chapter has traced the origins and evolution of the
concept within the EC/EU governance system, delineating the main sources, exigencies,
and actors that have shaped its emergence and evolution over the past seven decades. It
then distinguished four main areas of EC/EU identity and action where the idea and ideal
of the rule of law plays crucial roles. Firstly, and most fundamentally, the rule of law is one
of a handful of constitutional values upon which the Union is said by treaty to be founded
and which is deemed to be common to the Member States. Second, for the EU to function
effectively as a political and legal edifice, it is essential that both the EU and individual
Member States can reasonably rely on the efficacy of the justice systems of other Member
States. This is especially important for the smooth functioning of the Single Market and,
a fortiori, the EU’s area of justice and home affairs. Accordingly, basic trust in the rule
of law standards of each and every Member State is the glue that holds these core areas
of EU activity together. Third, respect for the rule of law is an eligibility criterion for EU
membership and states seeking membership in the Union must demonstrate adherence
to it as well as, since the Lisbon Treaty, a commitment to promote them. As such, the
rule of law has played, and will continue to play, a key role in the enlargement of Union
membership. Lastly, the rule of law plays a central role in the Union’s identity and activi-
ties pertaining to its external relations and self-understanding as a global actor committed
to the deepening of a liberal international order. Finally, we provided a cross-cutting,
critical review of the EU-rule of law nexus, identifying key debates where the concept of
the rule of law plays a substantial role in contemporary EU studies, as well as where the
EU governance system can be said to be lacking in terms of its adherence to the salient
constitutive features of the rule of law. Throughout, we have emphasised the identifica-
tion of key concepts, areas of activity, and debates so as to facilitate future research into
the EU-rule of law nexus.
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15. Non-governmental organisations and the rule of
law: The experience of Latin America
Fiona Macaulay
INTRODUCTION
The rule of law, that is, the fair, competent, effective, and predictable application of laws
that enhance, rather than undermine, social accountability and fundamental human
rights, is a core function of the state, and forms part of its social contract with the citizenry.
However, ensuring that a government upholds the rule of law requires a number of checks
and balances. Some of this accountability and enforcement function lies with the other
branches of government: oversight of the executive by the legislative branch through its
committees and reports, and by the judiciary, which has its own proactive powers and can
be petitioned by citizens and their representatives. But this republican structure can still
be unresponsive or resistant to scrutiny, particularly when elites across the branches of
government are indifferent to, or collude in, maintaining chronic problems in the justice
system. Active non-governmental organisations (NGOs) are therefore recognised as a
crucial component in the effective application of the rule of law due to their independence
from government and their often-different perspective on the impact of unevenly applied
and unjust laws and law enforcement through direct contact with the victims of arbitrary
treatment. This chapter explores ways in which NGOs (both international and local) can
contribute to strengthening rule of law through a case study of how the Open Society
Institute and its Justice Initiative (OSJI) and a network of Brazilian NGOs developed a
campaign to reduce the excessive use of pre-trial detention.
It demonstrates how NGOs can fulfil important watchdog functions and are able to
change laws, policies and practices that significantly improve the rule of law by working
strategically with one another, with international partners and with sympathetic state
actors.
NGOs AND RULE OF LAW
Non-government organisations have diverse roots: many spring from informal civil
society movements in which actors at some point decide to set up a professionalised,
institutionalised bureaucracy to order to be more effective in pursuing their goals;
legally-focussed NGOs often emerge from human rights and pro-democracy move-
ments. However, the presence of external actors offering incentives, such as funding,
can also provide the impetus for the creation of such NGOs. Rule of law and justice
sector reform has been a component of democracy promotion since the 1990s, and
some NGOs were set up specifically in order to deliver this global reform agenda. These
mixed origins result in a diversity of NGOs, some oriented more to mobilisation and
257
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protest and others to legislative and institutional change. In practice NGOs often take
on a number of different functions, discretely, in sequence or in tandem. These include:
direct provision of justice services, either in substitution of, or co-production with, the
state, for example, pro-bono work for individuals lacking legal counsel; interventions
in pivotal cases through amicus curiae briefs; public interest litigation challenging the
government on bad laws, poor legal decisions, or constitutional violations; research
and public awareness work (around rights, deficits in the rule of law and their social
consequences); and policy advocacy work (lobbying for reforms to laws and practices).1
These NGOs tend to be relatively small in comparison to other law-related civil society
organisations such as Bar Associations, but on whose backing or individual members
they may draw. They may also be heavily reliant on funding from state sources (when
contracted to carry out research or provide legal services) or from international funders;
inter-governmental organisations tend to fund research and service provision, whereas
international non-governmental organisations have greater latitude to fund advocacy in
pursuit of structural change. However, their degree of leverage or effectiveness lies not
in their size, but in the ways that they can work with both international actors (inter-
governmental and non-governmental) and local state actors to find opportunities and
spaces within which to press their reform agenda.
PROMOTING RULE OF LAW IN LATIN AMERICA
From Law and Development to Human Rights and Governance: 1960s–1980s
International NGO (INGO) interest in the rule of law in Latin America dates back to
the 1960s. A number of large US philanthropic organisations were engaged in develop-
ment assistance to Asia, Africa and Latin America, promoting economic growth,
human capital formation through public sector investment, and state-building through
project planning and management.2 State-building framed how the Ford Foundation
and other US-based institutions supported legal reform activities in Latin America as
part of the ‘law and development movement’. They assumed that lawyers trained along
North American lines would provide a bedrock of legal competence that would facilitate
domestic and foreign private investment, and thus reduce poverty. However, the results
were disappointing, as the imposed liberal, common law, model failed to mesh with
local, civil law, cultures. The rule of law was also not yet seen as entailing the protection
of human rights and citizens’ voice in decision-making. However, the 1964 military
coup in Brazil, and subsequent installation of other prolonged authoritarian regimes
1
On the role of Latin American civil society in social accountability see Enrique Perruzotti and
Catalina Smulovitz, Enforcing the Rule of Law: Social Accountability in the New Latin American
Democracies (Pittsburgh: University of Pittsburgh Press 2006).
2
These include the W.K. Kellogg, Tinker and Rockefeller Foundations, the Rockefeller
Brothers Fund and the Carnegie Corporation. However, the Ford Foundation dwarfed them all
in the scope, range, and size of its funding, giving grants worth US$61.7m to developing regions
between 1950-1961; Joseph Charles Kiger, (2000) Philanthropic Foundations in the Twentieth
Century (Westport, CT.: Greenwood Press 2000) 132).
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Non-governmental organisations 259
in Chile (1973), Argentina and Uruguay (1976), changed that position, especially for
the Ford Foundation, whose staff increasingly argued a moral duty to promote human
rights as a keystone of democracy. It switched its funding from government agencies
to local think-tanks, NGOs, and civil society/activist organisations, and to the nascent
Human Rights Watch. Having tested its support for human rights-centred rule of law
in Latin America, the Foundation then extended its new approach to its programmes
in the Middle East and Africa, assisting the end of the Apartheid regime in South
Africa. By 1981, the Ford Foundation’s new programme structure made ‘human rights
and governance’ one of its four major units, with the view that governments should
be responsive to their citizens, who in turn need the tools to demand accountability.3
Its work was ground-breaking both in supporting a culture of NGOs working on rule
of law related matters in developing and democratising regions, and in demonstrating
the power of INGOs in framing debates and supporting local civil society networks to
achieve concrete changes.
(Re)democratisation: 1980s–1990s
Several Latin American countries made the transition from authoritarian and military
rule to democracy after the mid-1980s. Human rights NGOs, such as the Centre for
Legal and Social Studies in Argentina and the Legal Defence Institute in Peru, which
had been documenting the arbitrary abuses and supporting the victims of the military
regimes, gradually moved away from pursuing justice for past violations towards a more
agenda-setting and public-litigation role around the continuing weaknesses of the justice
system.4 The 1996 peace agreement in El Salvador prompted the establishment of the
Due Process of Law Foundation, based in Washington DC, to strengthen the rule of
law and respect for human rights, with an emphasis on empowering civil society’s voice
in any reforms.
However, the inter-governmental organisations (IGOs), such as the World Bank and
Inter-American Development Bank, promoting judicial reform in transitional countries
initially took a narrow, top-down, and state-centric approach that promoted a ‘cookie-
cutter’ set of reforms, applied in every country regardless of local specificities and ‘fit’.
These packages typically involved rewriting laws and codes, training programmes for legal
professionals, technology assistance (computerisation of court processes and records)
and refurbishing courthouses, and institutional development.5 They focussed mainly on
3
Alliance Magazine, ‘Interview with Bill Carmichael’, Alliance June 2009 http://www.alli-
ancemagazine.org/interview/interview-bill-carmichael/ accessed June 2016; Hugo Frühling ‘From
Dictatorship to Democracy: Law and Social Change in the Andean Region and the Southern Cone
of Latin America’ in Mary McClymont and Stephen Golub (eds) Many Roads to Justice: The Law-
Related Work of Ford Foundation Grantees Around the World (New York, Ford Foundation 2000);
William Carmichael, ‘The Role of the Ford Foundation’ in Claude E Welch Jr. (ed.) NGOs and
Human Rights: Promise and Performance, Philadelphia: University of Pennsylvania Press 2001).
4
Frühling ibid.; Michael Shifter, ‘Weathering the Storm: NGOs Adapting to Major Political
Transitions’ in Mary McClymont and Stephen Golub (eds) Many Roads to Justice: The Law-
Related Work of Ford Foundation Grantees Around the World (New York: Ford Foundation 2001).
5
Cynthia Alkon, ‘The Cookie Cutter Syndrome: Legal Reform Assistance Under Post-
Communism,’ (2002) Journal of Dispute Resolution 327.
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court efficiency, quality, and political independence.6 Access to justice initiatives such as
alternative dispute resolution mechanisms were designed at first to address commercial
disputes in order to attract foreign investors. However, some forms of community-conflict
resolution and mediation were developed as a means of increasing the legitimacy of the
democratic state and reducing social violence. These were sometimes delivered by human
rights and legal NGOs acting as co-producers of the rule of law for the most marginalised
communities, for example, through the Balcão de Direitos legal aid centres set up in the
favelas in Rio de Janeiro between 1996–2005 by the NGO Viva Rio.
Criminal justice reform was lower down the agenda of the multilateral donors as
the control of crime and violence was regarded as a matter of state security and thus
politically sensitive. Procedural code reform – such as the switch from an inquisitorial
to an adversarial system – was seen as more technical and easier to achieve than penal
code reform, which often fell victim to penal populism. The United States, the major
bilateral donor in the region, had a paradoxical impact. On the one hand, it promoted
judicial and police reform, and the strengthening of accountability mechanisms such as
ombudsman’s and human rights offices. Yet it also demanded tougher police action and
mandatory remand and custodial sentences as part of its War on Drugs.7 It was thus
partly responsible both directly – through conditionality in its funding to countries such
as Colombia, Bolivia, and Mexico (and indirectly through its creation of a moral panic on
drugs) for the region-wide explosion in the prison population. This focus on punishment
also reflected the orthodoxy in parts of the UN system, such as the United Nations Office
on Drugs and Crime. So, the task of reversing the flow of prisoners into the system fell
to NGOs and INGOs.
MASS INCARCERATION AS A RULE OF LAW PROBLEM
The post-authoritarian and post-conflict criminal justice systems of the region began
to be tested from the 1990s by a surge in crime and violence, much of it linked to the
increased trafficking of illegal narcotics and related contrabands, and to the emergence
of criminal networks and street gangs in some countries. Although this was concentrated
in certain countries and urban centres, a common response was expanded punitivism
and penal inflation: in Brazil in the 30-year period 1985–2016 115 crime-related laws
were passed, putting around 550 new offences on the statute books.8 Police arrested more
people, due to both increased efficiency and institutional incentives, whilst the judiciary
and wider society backed imprisonment as the preferred form of punishment, particularly
6
Pilar Domingo and Rachel Sieder (eds) The Rule of Law in Latin America: The International
Promotion of Judicial Reform (London: Institute of Latin American Studies 2001); Linn
Hammergren ‘Twenty-five Years of Latin American Judicial Reforms: Achievements,
Disappointments, and Emerging Issues,’ (2008) 9(1) The Whitehead Journal of Diplomacy and
International Relations 89.
7
Transnational Institute and Washington Office on Latin America (2011) Systems Overload:
Drug Laws and Prisons in Latin America Amsterdam, TNI, and Washington DC, WOLA.
8
http://.gazetadopovo.com.br/ opiniao/artigos/o-excesso-punitivo-e-mais-um-erro-legislativo-
39mztmjaipxjfl594c7lzje28 accessed 6 April 2018.
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for the young, non-white male population regarded as a social threat. Every country thus
saw a rise in incarceration in terms of absolute numbers, and in the rate of imprison-
ment. Some experienced a four-to-five- fold rise in the two decades since the first half of
the1990s: El Salvador’s incarceration rate shot up from 99 to 509 per 100,000 population;
Brazil’s went from 74 to 301.
Whereas imprisonment as a form of legal and legitimate punishment of offenders
that threaten the rights of others could be understood as fulfilling the rule of law,
such mass incarceration (especially with high levels of pretrial detention) ends up
undermining the rule of law in a number of dimensions: denial of due process, equal-
ity before the law and the presumption of innocence; arbitrary and illegal detention,
violation of the right to liberty and other human rights, and an erosion of the state’s
monopoly on force. Across Latin America prisoner numbers quickly outstripped capac-
ity, leading to serious overcrowding, inhuman and degrading conditions of detention,
torture, excessive force, and collective punishment inflicted by staff on prisoners, and
chaotic violence between inmates. This led first to frequent riots and prison breaks,
and then to prisoners creating inmate collectives that came to constitute parallel forms
of governance inside the prisons.9 Brazil’s major inmate syndicate, the First Capital
Command (Primeiro Comando da Capital – PCC), was born in the São Paulo prison
system and now dominates 95 per cent of the facilities in the state, that is, over 225,000
prisoners, or over a third of Brazil’s prison population. It was able to extend its traf-
ficking and protection racket operations into low-income neighbourhoods thanks to
the prison estate providing associational space, infrastructure, and new recruits from a
revolving door of arrest, detention and release that sent one million individuals a year
through the prison system.10 In those urban areas, it functioned both in tandem and
in competition with the police (which it often co-opted or corrupted). Thus, the rule
of law and order both inside and outside the prison system was privatised by violent
non-state actors.
Where pretrial detention has become the rule, not the exception, it has been a major
contributor to the problems of mass incarceration, both in the numbers of individuals
that it places in an overloaded system, and in the corrosion of the rule of law, which in
turn produce grievances that make inmates turn to prisoner collectives and gangs. Often
the period of pre-trial detention exceeds any reasonable, or legally stipulated, period
for the authorities to conclude their investigation and preparation of charges. Judges
frequently ignore official criteria for remand, such as a threat to public order, or risk of
absconding. Detainees are not given information about the actual charges that will be, or
have been, brought against them, or when they will eventually be brought before a judge
for the first time, and are denied access to legal counsel. In many cases individuals are
held on remand on charges for which a custodial sentence could not be imposed, or for
a period beyond the maximum custodial sentence. Yet, illegal and unjustified pretrial is
clearly the result of state commission or omission, because whilst 85.9 per cent of Bolivia’s
9
Benjamin Lessing, ‘The Danger of Dungeons: Prison Gangs and Incarcerated Militant
Groups’: in Small Arms Survey 2010: Gangs, Groups and Guns (New York: Cambridge University
Press 2010).
10
DEPEN (2016) Levantamento de informações penitenciárias Unopen 2014, Brasilia:
Departamento Penitenciária Nacional DEPEN Brazilian Ministry of Justice, p. 23.
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prisoners and 79 per cent of Paraguay’s detainees are awaiting trial, only 12.3 per cent of
Nicaragua’s prisoners and 17.2 per cent of Costa Rica’s are on remand. 11
Latin America has the one of the oldest and strongest regional human rights system,
and the Inter-American Commission on Human Rights (IACHR) has been actively
highlighting such excessive pre-trial detention as a major concern for over a decade
through its periodic inspection visits. The region’s history of government human rights
abuses and strong civil society responses has enabled information-sharing between policy
networks of NGOs, government officials and international organisations. These factors
have allowed activists to meet, compare notes, diffuse good practice, and put pressure on
recalcitrant governments, as the case of custody hearings in Brazil demonstrates.
NGO Action on Detention
Before the 1990s human rights Latin American NGOs focussed on the arrest and treat-
ment of political detainees and protesters, and did not much consider wider structural
issues affecting the mass of inmates. But the exploding prison population turned the
attention of some to the torture of prisoners in police custody, excessive use of force by
authorities in dealing with prison incidents, the denial of healthcare and legal assistance,
and the impact of arbitrary and prolonged detention on families and communities.
Sometimes they provided direct services, such as legal assistance, that should be the
responsibility of the state. They conducted research and handed over documentation
on systematic rights violations to inspectors from the national authorities and from
international organisations, such as Amnesty International, Human Rights Watch, and
the Inter-American and United Nations human rights bodies. They took key emblematic
cases to the domestic courts and then to Inter-American Court of Human Rights, making
full use of what Keck and Sikkink term the ‘boomerang’ strategy of using international
opprobrium as a lever for changes in domestic policies and practices.12 Increasingly,
groups such as the Center for Justice and International Law (CEJIL) turned to public
interest litigation to force governments to comply with their own norms and standards
for the treatment of prisoners.
Brazil’s prison population rose 575 per cent in the quarter century from 1990–2015.
Since the return to democracy in the mid-1980s, the Pastoral Carcerária (the Catholic
Church’s Pastoral service to prisoners) had been addressing the immediate welfare of
prisoners but more recent mass incarceration forced it to begin addressing structural
problems with lobbying and mobilisation. Newer NGOs founded by individuals – often
lawyers – who had cut their teeth in the human rights movement of the late 1980s and
1990s began to tackle deficits in the operation justice system. For years, many of Brazil’s
27 states either had no legal aid service, or had one that was woefully understaffed with
its lawyers earning considerably less than their prosecutorial counterparts.13 As a result
11
World Prison Brief http://www.prisonstudies.org/highest-to-lowest/pre-trial-detainees?field_regio
n_taxonomy_tid=All accessed on 4 September 2016.
12
Margaret E. Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in
International Politics (Ithaca NY: Cornell University Press 1998).
13
http://www.ipea.gov.br/sites/mapadefensoria/defensoresnosestados accessed on 6 April 2018;
see also Carlos Weis, ‘The Brazilian Model of Legal Aid: Characteristics of the Public Defender’s
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prisoners typically spent three to six months on remand before they received any legal
assistance. The Institute for the Defence of the Right to Defence (Instituto de Defesa do
Direito de Defesa – IDDD), founded in 2000 by 35 criminal lawyers in the city of São
Paulo, began by offering pro bono legal assistance to prisoners through its network of
volunteer lawyers, carrying out systematic reviews of case files in particular prisons (such
a collective, focussed effort is called a mutirão carcerário).
Other NGOs formed at the same time in Rio de Janeiro and São Paulo with research on
prisons and assistance to prisoners as their sole or major remit, approached the problem
from complementary angles, lobbying norm-setters and litigating in both national and
international fora. The Land, Labor and Citizenship Institute (Instituto Terra, Trabalho e
Cidadania – ITTC) was founded in 1997 in order to combat inequalities and human rights
abuses. Based in São Paulo it works in particular on women’s issues, including foreign
nationals, in detention. It conducts research and campaigns on non-custodial sentences and
drugs and gender issues. Lawyer James Cavallaro left his post as Human Rights Watch’s rep-
resentative in Brazil to set up Global Justice (Justiça Global), a human rights research and
advocacy organisation, in 1999 in order to take cases to the Inter-American human rights
mechanism as so few cases were being submitted concerning Brazil. Conectas was set up
in 2001 by a group of human rights lawyers and activists to promote human rights and the
consolidation of the rule of law in the Global South through training human rights defend-
ers and supporting collaborative networks. In Brazil, it specialises in advocacy and public
interest litigation. The Association for Prison Reform (Associação pela Reforma Prisional
– ARP) was set up in 2003 as an arm of the Centre for Studies on Security and Citizenship
at Candido Mendes University in Rio de Janeiro to provide legal assistance to prisoners and
litigate domestically on prison issues. Both were established by Julita Lemgruber, former
head of Rio de Janeiro state’s prison system and a law-and-order reformer. The Institute
of Human Rights Defenders (Instituto de Defensores de Direitos Humanos – IDDH), a
Rio-based group set up in 2007, specialises in legal aid to, and strategic litigation on behalf
of, pre-trial prisoners. These NGOs would form the heart of the Criminal Justice Network
set up in conjunction with Open Society to tackle the ‘gateway’ issue of pretrial detention
as part of a wider campaign on global justice and rule of law reform.
OPEN SOCIETY’S APPROACH TO JUSTICE REFORM
While the criminal justice systems in Latin America were coming under strain, a new
‘meta-NGO’ was consolidating itself internationally as a policy entrepreneur and
agenda-setter around the rule of law in transitional societies. The Open Society Institute
(OSI), established in 1993 by the billionaire philanthropist and financier George Soros,
is a grant-making foundation that serves as the hub of a global network of autonomous
Soros foundations and organisations in more than 60 countries set up since 1984.14
Office Since the Constitution of 1988’ in Conor Foley (ed.) Another System is Possible: Reforming
Brazilian Justice (London: International Bar Association 2012).
14
Diane Stone, ‘Private Philanthropy or Policy Transfer? The Transnational Norms of the
Open Society Institute’, (2010) 38(2) Policy and Politics 269.
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OSI’s explicit mission is to shape public policy to promote democratic governance,

human rights, justice and the rule of law, health, education and youth and media and
information. This it aimed to do by promoting appropriate economic, social and legal
reforms and by supporting local level actors, through its cross-border and cross-regional
alliances, to advocate for, and ensure the enactment of, these reforms. As this case study
will demonstrate, it was able to reset the terms of debate internationally around pretrial
detention and work with country-level and community-based NGOs to achieve tangible
changes in both policy and practice.15
The OSJI, which is a division or endowed NGO within the Open Society structure,
began its campaign on pretrial detention as a component of its wider work on pretrial
justice, in which two of its key staffers had been closely involved: Zaza Namoradze of the
Budapest office had been promoting legal aid in Central Europe and community-based
paralegals in West and South Africa, and Martin Schönteich had been researching pretrial
detention, noting that over the course of a year, nine million people pass through pretrial
detention, and three million – that is, one-third of all people behind bars – are on remand
on any given day. In 2010 a global campaign on the latter was suggested as a strategic
means of exposing the wider dysfunction of justice systems. A 12-person core OSJI team
was assembled from staff in Abuja, Budapest, Brussels, New York, and Mexico. In order
to create regional networks of NGOs that could work, strategise, and build for the long
term, they used a snowball technique, communicating initially with some 100 known con-
tacts through newsletters. Madeleine Crohn, a Brussels-based advocacy officer seconded
to the New York office and experienced in running big campaigns, assumed that it would
take up to ten years both to build effective advocacy networks and reframe and legitimate
the issue with policy-makers. In the event, the Global Campaign was projected to last
for just three years, with OSJI receiving substantial matching funding from the British
Department for International Development. The latter was then restructured and moved
on to other priorities, and the Global Campaign ended after five, also due to internal
restructuring. However, the NGO policy networks it had built in Central and Eastern
Europe, Africa and Latin American endured, to varying degrees. At a country level, in
particular, the policy communities continued to function, focussed on specific goals, as
will be seen in the case of Brazil.
The first move in the Global Campaign was an epistemic one. OSJI produced a number
of position papers that collated reliable and comprehensive data on excessive pretrial
detention and identified it as the cause of multiple harms – the practice of torture, spread
of disease, institutional corruption, family poverty, erosion of the rule of law and hence
of public confidence and state legitimacy – that affect not only the detainees, but also
their families, communities, and states. This reframed a supposedly criminal justice matter
as a much broader public governance issue and hence attracted a wider group of policy
makers.16 Their research also underscored how abuse of pretrial detention involves viola-
tions of both procedural, or thin, (rules) and substantive, or thick, (outcomes) aspects
15
Based on email, skype and face-to-face conversations with senior programme staff from
the Open Society Justice Initiative, and with key individuals from the Criminal Justice Network in
Brazil, between May and September 2016.
16
Open Society Foundations, Presumption of Guilt: the Global Overuse of Pre-Trial Detention
(New York: Open Society Foundations 2012).
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of rule of law (see the introduction to this volume). Legal system operators routinely
ignored the legal guidelines, that is, the process values governing remand. The OSJI
sought to empower a coalition of Brazilian NGOs to work with key state actors in order
to improve the transparency, predictability, enforceability, and stability of the pretrial
decision-making process, to make the judiciary more accountable and in so doing improve
the legitimacy of the justice system.
The Brazilian Criminal Justice Network
As the OSJI wanted maximum impact for their campaign they asked a third party who
knew the key players in the Brazilian NGOs to meet with them individually and seed the
idea of a network and a common agenda. Those that recognised the importance of both
the funding on offer and joint work were the first to form the network: Conectas, the
Church’s prison ministry, and Instituto Sou da Paz, which had previously worked more
on public security, disarmament, and police violence. Others joined later, and the network
fluctuated between three and ten members.
In February 2010, when the Brazilian Criminal Justice Network was formed, the first
strategic target was the national legislature, which produces all law on penal matters.
The three NGOs set up an advocacy project (Projeto Brasília), establishing a permanent
presence in the country’s capital to track proposed justice-related legislation. They
soon logged 1,300 bills, classified them in terms of their positive or negative impact on
substantive rule of law issues, and tracked them through the bicameral system. They met
with the college of party leaders where the weekly legislative agenda is determined, sat
in committees and floor sessions, and thus identified key players and opinion-formers.
Their work was helped, paradoxically, by the fact that most legislators were not used to
being lobbied by civil society, which both lacked the resources and found it difficult to
target a highly fragmented party system (23 parties were represented in Congress in 2010)
where politicians frequently switch parties. In consequence legislators felt ill-prepared on
criminal justice matters and eagerly took up the statistical data, policy briefs, legislative
bills proposals and evaluations supplied by the network’s representative and the three
NGOs, which built trust, collaboration, and a division of labour despite their different
histories and mandates.17
Many of the bills the network focussed on were regarded as regressive, and therefore
they sought to block or amend them. In order not to seem negative in its agenda, the
group selected two bills to promote positively, one of which was the Law of Precautionary
Measures (Lei de Medidas Cautelares). Intended to reduce pretrial detention it gave judges
a wider range of alternatives to remand or unconditional release of suspects, including
house arrest, regular reporting in to a court, electronic monitoring, night-curfew at
home, payment of bails, and bans on specific movement, contacts, and jobs. The law had
been circulating since 2001, having come out of the government’s expert-led review of
the Criminal Procedure Code initiated at the end of 1999. However, despite this initial
executive backing, it had languished for a decade. It took a year of discussion for the
17
Helena Romanach, José de Jesus Filho and Juana Kweitel, ‘The Advocacy Project’ in Foley
(ed.) supra note 13.
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network to find key allies in the Office of Legislative Affairs in the Ministry of Justice
who then championed the bill. It was approved in April 2011, at a point when Brazil had
over 215,000 people in pre-trial detention, which accounted for 44 per cent of the total
prison population.
Judicial Blockages and Solutions
The implementation of the bill depended on a culture shift among the country’s judges
who had already been identified as responsible for much of the prison system’s crisis,
having ignored existing legal criteria for pretrial detention, and failed to perform their
other function of overseeing prison sentences. Brazil’s National Justice Council (Conselho
Nacional de Justiça – CNJ), set up in 2004 as the watchdog arm of the judiciary, started
a systematic review of prisoner case files in 2008. Whereas the IDDD, as an NGO, had
relied on volunteer lawyers, as a branch of the judiciary the CNJ was able to pass internal
ordinances to prosecutors, judges and state legal aid lawyers released from normal duties
to conduct these ‘mutirões carcerários’; a 2009 law institutionalised this function within
its structure by creating a Department of Prison System Monitoring.18 By 2016 it had
examined over 400,000 case files, and had arranged for overdue earned prison benefits
(such as progression to a lighter prison regime, or parole) to be awarded to 80,000
inmates, over 45,000 of whom were released from prison having in fact served their full
term.19 However, the judges responsible for these omissions suffered no consequences.
Brazilian judges, right down to circuit court level, enjoyed too much, rather than too little,
individual autonomy. Binding precedent was weak, and state-level appeals courts often
compounded the problem.
Thus it was perhaps not surprising that the impact of the new Precautionary Measures
bill was modest. Judges still held considerable discretionary power to decide whether an
individual posed a re-offending or flight risk. They also believed, with some justification,
that the executive branch had not put in place the infrastructure for these new measures,
for example, electronic monitoring. This had also been their reasoning behind resistance
to applying non-custodial sentences made available to them by laws passed in 1998 and
2007. Members of the Criminal Justice Network set about evaluating the actual impact.
A study in Rio de Janeiro showed that before the law, judges remanded into custody in
83.8 per cent of cases: this dropped only slightly to 72.3 per cent in the six months after
the passage of the law.20 A study conducted in São Paulo in 2014 confirmed the continued
default position of judges: one quarter of the 410 prisoners in the remand centre were
released after review of their cases.21
It therefore became clear to the NGOs, and to the CNJ, that further steps would be
18
Conor Foley (2012) ‘The mutirão carcerário’ in Foley (ed.) ibid.
19
http://www.cnj.jus.br/sistema-carcerario-e-execucao-penal/pj-mutirao-carcerario accessed 6
April 2018.
20
Julita Lemgruber, Marcia Fernandes, Ignacio Cano and Leonarda Musumeci, Usos e abusos
da prisão provisória no Rio de Janeiro: Avaliação do impacto da lei 12.403 2011 (Rio de Janeiro: ARP
and CESEC 2013), p. 12.
21
IDDD, Liberdade em foco: redução do uso abusivo da prisão provisória na cidade de São Paulo,
(São Paulo: Instituto de Defesa do Direito de Defesa 2016).
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needed to compel judges to use pretrial detention as an exceptional measure. The Network
realised, through its contact with other human rights NGOs and IGOs in Latin America,
that Brazil was now the only country in the region without a federal law on custody hear-
ings, a mechanism whereby an individual arrested in flagrante must be brought speedily
before a judge in order to determine under what conditions they should await trial. This
meant that Brazil was not compliant with Article 7.5. of the Inter-American Convention
on Human Rights. In 2011 the network therefore identified a relevant bill in the Senate;
although very limited in scope, the bill provided a useful rallying point, as custody
hearings would both identify police brutality and reduce pressure on remand centres.
The IDDD and CNJ together drafted amendments to it and from 2011-14 the Network
lobbied legislators to get it approved. However, it took four years to get through the
committee stage, and was stalled by the counter-lobbying of police, judges’ associations,
the prosecution service, and ‘tough-on-crime’ legislators.
Meanwhile, the prison authorities in the State of São Paulo were desperate to stem
the inflow of new prisoners into the system, and in 2014 approached IDDD to carry
out a standard ‘mutirão carcerário’, The IDDD and CNJ decided that a better response
would be to block the pipeline. With the bill stuck in Congress, the new President of
the Supreme Federal Court and of the CNJ, Ricardo Lewandowski, used the latter’s
own institutional powers to trial custody hearings (audiências de custódia) in São Paulo.
Initiated in February 2015 in a mega-complex of courts handling all of the city’s criminal
cases, the project required a judge to see detainees in the presence of a public prosecutor
and a defence lawyer within 24 hours of their arrest in flagrante in order to determine the
legality and necessity of pretrial detention, whether there were alternatives to remand as
provided in the Lei de Medidas Cautelares, and whether the prisoner has been tortured
or ill-treated in police custody. Up until then, police were required only to present the
paperwork to the judge in this time period, and prisoners often waited months to get their
first hearing. The IDDD and Chief Justice Lewandowski worked together to win over
the notoriously conservative judges of the state Court of Appeal: it helped that he was
from São Paulo and knew many of them personally and professionally. Helpfully, IDDD
is also staffed by volunteer criminal lawyers who trained in the same law faculties as these
justice system operators, circulated in the same social and professional spheres, and could
call on this social capital.
Staff from IDDD monitored the custody hearings from the outside, and in April 2015
entered into a partnership agreement with the CNJ and the Ministry of Justice to formally
evaluate the pilot project. The project was then rolled out in the capital cities of the other
26 states and the federal district. The CNJ passed a formal resolution in December 2015,
which took effect on 1 February 2016, requiring all courts in every jurisdiction in the
country to conduct custody hearings. Although this has faced legal challenges, the CNJ’s
justification is that it holds a remit to make Brazil’s judicial processes compliant with its
obligations under regional and international human rights treaties. The latter are regarded
supralegal and infraconstitutional in Brazil’s constitution, and do not require additional
legislation to be effective.
The impact was very positive: by June 2016, 93,4000 custody hearings had been held,
in just under half the suspects were released on bail, nearly always under some kind of
precautionary measure. Moreover, over 5,000 allegations of police brutality had been
logged. The system had allowed state agencies and legal provision to work together, not
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at odds with one another. The custody-hearing centres can refer the accused directly to
social services, working with the Centres for Non-Custodial Sentences and setting up
arrangements for electronic monitoring and other measures, all of which removes the
judges’ room for punitive latitude. That said, there is a great deal more for the network to
do to make this as effective as possible in reducing pretrial detention. Each state’s justice
system is autonomous, entering into separate agreements with the CNJ, and producing
quite disparate outcomes: the level of post-hearing release ranges from 15 to 79 per cent.
The custody hearings currently apply only to individuals arrested in flagrante rather than
to all detainees, such as those detained by arrest warrant. Follow-up on police brutality
allegations has been minimal. Keeping half of arrestees on remand is still much too high
and it appears that judges still make their decision based not on the likelihood of the
accused interfering with the judicial process, but rather on their personal characteristics
and history.22
INGO, NGO, AND GOVERNMENTAL PARTNERSHIPS FOR

IMPROVING RULE OF LAW
This case study has shown how a ‘meta-NGO’, local NGOs and key state actors were able
to work together effectively to challenge the abuse of pretrial detention in Brazil. Heupel23
argues that both inter-governmental actors and (international) non-government actors
share a common analysis of rule of law deficits in transitional societies, attributing them
to a lack of will among the political elite, a lack of capacity among local justice sector
actors, a lack of knowledge about how to strengthen the rule of law and limited belief
in the value of the latter. The OSJI’s strategy succeeded because of its non-hierarchical
relations with partners and lack of conditionality, as it directed significant funding at
local NGOs already engaged in justice issues. It thus overcame two key challenges that
face IGOs in promoting rule of law. The first is often a lack of solid knowledge to devise
effective strategies, but here the local NGO network could produce extensive data on
both the deficits, and the impact of new practices. Secondly, justice reform often forgets
the participation and empowerment of local actors, but the Criminal Justice Network
in Brazil continued actively pushing forward pretrial detention reform after the OSJI
funding for the Global Campaign ceased in 2014, with ongoing funding from both OSI
and the new state partner.
The OSI and OSJI were also able to act as effective policy entrepreneurs by deploying
the four styles of translating research into policy identified by Stone and Maxwell.24 First,
as a ‘storyteller’ the partnership created a new policy narrative, recast remand custody as
an issue of good governance, public health, human rights, and economic development.
22
IDDD, Monitoramento das audiências de custódia em São Paulo (São Paulo: Instituto de
Defesa do Direito de Defesa 2016).
23
Monika Heupel, ‘Rule of Law Promotion Through International Organisations and NGOs’,
in Michael Zurn, André Nollkaemper, and Randall Peerenboom (eds) Rule of Law Dynamics in an
Era of International and Transnational Governance (Cambridge University Press 2012).
24
Diane Stone and Simon Maxwell (eds) Global Knowledge Networks and International
Development: Bridges Across Boundaries (London: Routledge 2005), pp. 7–8.
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Secondly, as a ‘networker’ it developed and participated in an epistemic and policy

community, the Criminal Justice Network, which built interpersonal trust, social capital,
and shared commitment to exchange ideas, produce and disseminate research and pilot,
evaluate, and transfer new policy approaches. The network acted as researcher-as-fixer,
getting the ear of the right higher-level lawmakers or policy-makers, in the Ministry of
Justice, and in the Supreme Court and CNJ. The network’s relations with the CNJ also
enabled it to deploy researchers-as-engineers’ to work with ‘street-level bureaucrats’, that
is those who would actually implement the policy, in this case, the judges.
There was also an important regional dimension to this endeavour: the OSJI set about
building a regional network as well as the start, drawing on data and pilot projects in
Mexico. Additionally, the Inter-American system played an important role: the Inter-
American Commission, which had worked incidentally on imprisonment, turned its full
beam onto pretrial detention with the election of James Cavallaro as Commissioner to
the Inter-American Human Rights Commission in June 2013, with a specific remit for
detention. His career as law professor at Harvard and Stanford followed his work with
Human Rights Watch and Global Justice, and he was well connected to the Brazilian
human rights and legal reform community. IACHR’s first major report specifically on
pretrial detention was issued that same year. It also played a legitimating role, as the
CNJ and NGO network were able to invoke the need to comply with the Inter-American
Convention on Human Rights, while Chief Justice Ricardo Lewandowski insisted on
presenting the findings from the first six months of the Custody Hearings roll-out to a
meeting of the IACHR in October 2015.
FINAL COMMENTS
As has been demonstrated, NGOs can play important roles in strengthening the rule
of law where the state has either signalled its indifference to existing problems, or acts
to exacerbate them. In this particular case, the branch of government expected to
exercise the most oversight over government policy and over the protection of rights and
due process was not only failing to do so, but compounding the problem through the
discretionary, and illegal, actions of its members. For some time, NGOs had been trying
to act as checks and balances in regard to the abuses in the prison system, but until 2010
could only take their concerns to the international system as an echo-chamber to exert
reputational pressure on the government. Keck and Sikkink’s boomerang theory breaks
down, however, when the state turns out to be unresponsive to such external opprobrium.
Thus, the NGOs in this case needed a catalyst and funder, in OSJI, and strategic allies
in the state, which emerged under a government that strengthened the mechanisms of
judicial oversight in the form of the CNJ and made the Ministry of Justice take justice
reform seriously. On their own, NGOs could not exert effective controls as representatives
of private citizens: when the state closes the door to them they are ineffective. The state
may also try to close the door to them when they are effective: criminal justice actors
involved in security and crime policy rarely invite public scrutiny. They also cannot – and
should not, strategically – substitute for the state. Sometimes, NGOs find their greater
advantage in identifying the opportunities for leverage and co-operation that exist in the
diverse institutional spaces, locally or nationally. At others, however, stepping out of the
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logic of the state by breaking the law through symbolic action has a greater pedagogic
value in terms of public perception of state violations. Whichever strategy they use, as
the Latin American experience clearly shows, NGOs can be key, flexible, networked and
morally compelling actors for the improvement of the rule of law.
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16. Lawyers and the rule of law
David Howarth
Lawyers often present themselves as champions of the rule of law. The American Bar
Association, for example, begins its Model Rules of Professional Conduct with a paean
of praise to the rule of law and a claim that lawyers are ‘guardians of the law’. It is not
difficult to see why lawyers associate themselves with the rule of law. Lawyers’ professional
organisations are subject to competing impulses: on the one hand, both for idealistic and
reputational reasons, the legal profession likes to promote itself as civic-minded and altru-
istic, but on the other, it needs to protect lawyers’ interests by guarding the boundaries
of what counts as exclusively lawyers’ work and by ensuring that the mental apparatus
lawyers have created for themselves remains relevant in both commerce and politics and
is not bypassed.1 Support for the rule of law is a theme that reconciles these competing
goals. It looks like a high-minded ideal but at the same time carves out a distinctive role
for lawyers and their modes of thought.
Reality, however, is more complicated. Lawyers certainly have defended the
weak against overweening state power, but they have also facilitated state power.
Sometimes that facilitation can take extreme forms. US government lawyers notori-
ously produced legal justifications for torture and mistreatment of prisoners. Lawyers
in private practice also often use their skills to undermine the effectiveness of law
and regulation. Some lawyers have even facilitated illegality, not only tax evasion
but structurally dangerous illegality such as judicial corruption. The purpose of this
chapter is to draw out this duality of the relationship between lawyers and the rule of
law. Ultimately all lawyers depend for their living on the legal system having real and
stable effects, for otherwise no one would need to consult a lawyer, but that dependence
operates collectively and over the long term. In the short term, individual lawyers face
very different incentives.
As this research handbook has already demonstrated, the rule of law has many faces.
This chapter proceeds by laying out schematically the aspects of the rule of law potentially
relevant to lawyers and then considering each in detail, examining the extent to which
each illustrates the dual nature of the relationship.
1
Cf, T. Halliday, ‘Politics and Civic Professionalism: Legal Elites and Cause Lawyers’ (1999) 24
Law & Social Inquiry 1013. The ‘civic professionalism’ theory of the legal profession is Halliday’s
own (see e.g. T. Halliday, Beyond Monopoly: Lawyers, State Crises and Professional Empowerment
(Chicago: University of Chicago Press, 1987)), the control of professional jurisdiction theory is
that of Andrew Abbott (A. Abbott, The System of Professions (Chicago: University of Chicago
Press, 1988)) and the theory that lawyers resist new legal and political ideas that threaten to under-
mine the relevance of their training and inherited modes of thought occurs in R. Shamir, Managing
Legal Uncertainty: Elite Lawyers in the New Deal (Durham, N.C.: Duke University Press, 1995), as
reviewed by Halliday (1999).
271
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THE RULE OF LAW
For the purposes of this chapter the rule of law is treated as a combination of six ele-
ments. We make no comment on which of these elements might form part of an ideal or
‘true’ understanding of the concept and we make no assumption that the elements are
distinct and non-overlapping. They are: (1) rule by law: a state of affairs in which the law
is generally complied with; (2) formal legality: a state of affairs in which the state acts
exclusively by lawful means and in which the state is not exempt from the law (not to be
confused with legal formalism, which is a style of legal reasoning); (3) contestability of
the law: individuals have the capacity to raise their grievances and to argue about the law
that covers their case; (4) constitutional checks and balances: state power is constrained
by being distributed across different institutions and by human rights; (5) economic
certainty: property and contract rights are clear and free from arbitrary interference by
the state; and (6) social and economic rights: minimum levels of income and rights against
discrimination are guaranteed.
The aim is to be inclusive. Economists and writers on law influenced by market eco-
nomics tend see the rule of law largely or even exclusively in terms of the fifth item of the
list: the clarity and certainty of private law rights, particularly property rights and rights
to enforce contracts.2 In contrast, many traditional lawyers, especially public lawyers, find
the economists’ version of the rule of law far too narrow, lacking any sense of the rule of
law as a virtue of political systems rather than of economic ones. Instead of adjudicating
on that debate we include both points of view.
Lawyers and the Rule by Law
The most basic element of the rule of law is that the legal system should be effective: that
the law is generally complied with and succeeds in pacifying social conditions. Lawyers
might be thought to have an interest in upholding rule by law; a society in which law made
no difference, whether because anarchy reigned or because social pacification came about
by other means (for example through religion or fear of reprisal) would not generate much
demand for lawyers’ services. However, the extent to which lawyers act on this interest is
a separate question.
At a basic level, lawyers’ professional ethical codes for the most part forbid actively
assisting clients to break the law and might even impose an obligation on lawyers to
attempt to dissuade clients from breaking the law. The American Bar Association’s
Model Rules of Professional Conduct, for example, say that lawyers ‘shall not counsel
a client to engage, or assist a client, in conduct that the lawyer knows is criminal or
2
See e.g. F. A. Hayek, The Road to Serfdom (London: Routledge, 1944), and The Fatal
Conceit: The Errors of Socialism (Chicago: University of Chicago Press, 1991), R. Epstein,
Design for Liberty: Private Property, Public Administration, and the Rule of Law (Cambridge, MA:
Harvard UP, 2011), R. Barro, ‘Democracy and the Rule of Law,’ in B. Bueno de Mesquita and
H. Root (eds), Governing for Prosperity (New Haven: Yale UP, 2000) 209 and ‘Determinants of
Democracy, (1999) 107 Journal of Political Economy S158. These works, and this entire approach
to the rule of law are criticised in J. Waldron, The Rule of Law and the Measure of Property
(Cambridge: CUP, 2012).
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Lawyers and the rule of law 273
fraudulent’,3 while the Code de déontologie of the Paris Bar enjoins its members:
‘Lorsqu’il a des raisons de suspecter qu’une opération juridique aurait pour objet ou pour
résultat la commission d’une infraction, l’avocat doit immédiatement s’efforcer d’en
dissuader son client.’4 More subtly, lawyers might play a role in promoting rule by law
by disseminating knowledge of the law through their interactions with their clients.
Lawyers with a long relationship with a corporate or governmental client might even
act as an important part of the client’s organisational memory and be in a position to
shape the organisation’s behaviour.5 Lawyers might also contribute to the process of
social pacification by explaining the law, and specific rulings of courts, to their clients
when they have lost.6
In reality, however, the situation is not straightforward. Not only are violations of
ethical rules far from uncommon,7 lawyers frequently engage in an activity dubbed
by McBarnet and Whelan as ‘creative compliance’, that is advising clients on how
to escape legal controls without technically violating the law.8 Thus lawyers might
engage in activities that, while technically compliant, assist clients to avoid regulatory
oversight.
An example of creative compliance in the commercial context is the Repo 105 incident
in the period before the Great Crash of 2008. A leading London law firm, while break-
ing no legal or ethical rules, assisted the leading investment bank Lehman Brothers in
hiding the extent of the bank’s assets and liabilities from the US Securities and Exchange
Commission.9
Another type of creative compliance is when lawyers help clients to nullify internal
legal controls by providing arguments for the lawfulness of courses of action that might
otherwise be thought to be unlawful. A striking example from public law practice is the
concoction by lawyers inside the US government of definitions of ‘torture’ that excluded
‘enhanced interrogation techniques’ such as waterboarding prisoners, slamming them
3
E.g. ABA Model Rules of Professional Conduct, rule 1.2(d). There is no precise equivalent in
the English Solicitors’ Code of Conduct, but such behaviour might breach rule 1’s requirement of
integrity and upholding the rule of law.
4
Code de déontologie du barreau de Paris, art 1.5 al. 3; ‘When he has reason to suspect that
a legal transaction has for its objective or will result in the commission of a criminal offence, the
advocate must immediately endeavour to dissuade the client’.
5
Y. Dotan, Lawyering for the Rule of Law: Government Lawyers and the Rise of Judicial
Power in Israel (Cambridge: CUP, 2014) 167. Dotan makes the point that government lawyers
engaged in litigation can act as a conduit for positions taken by activist courts to infiltrate
government decision-making processes. It is less clear that this happens in the corporate context,
however. See M. Gulati and R. Scott, The Three and a Half Minute Transaction (Chicago:
Chicago UP, 2012), describing the impassivity of the sovereign bond market to unwelcome
judicial creativity.
6
Cf. E. A. Lind and T. Tyler, The Social Psychology of Procedural Justice (New York: Plenum,
1988) 219.
7
See e.g. J. Loughrey, Corporate Lawyers and Corporate Governance (Cambridge: CUP, 2013)
2–4.
8
D. McBarnet and C. Whelan, ‘The Elusive Spirit of the Law: Formalism and the Struggle for
Legal Control’, (1991) 54 MLR 848, 848. See further Loughrey, ibid., 4–5.
9
See D. Howarth, Law as Engineering: Thinking about what Lawyers do (Cheltenham: Edward
Elgar, 2013).
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into walls, confining them in cramped conditions, slapping them and depriving them of
sleep.10
Lest one might think that creative compliance is a phenomenon restricted to the
common law world, it has been observed in countries as diverse, in rule of law terms, as
Sweden, China, and Russia.11 Moreover, states use it against other states, for example
when Hungary found ways to work around judgments of the Court of Justice of the
European Union on judicial independence.12
Creative compliance is not merely an unfortunate and undesired side-effect of legal
practice. Professional conduct rules permit or even encourage it. The ABA’s Model Rules,
for example, continue: ‘[B]ut a lawyer may discuss the legal consequences of any proposed
course of conduct with a client and may counsel or assist a client to make a good faith
effort to determine the validity, scope, meaning or application of the law.’ This formula
allows lawyers to look for ways of removing a legal obstacle to what a client wants to do
not by persuading the client to act differently but by constructing arguments that justify it.
The Code of the Paris Bar continues in a way that points to a different problem. ‘À
défaut d’y parvenir, il doit se retirer du dossier’ that is, if the lawyer fails to persuade the
client to desist, the lawyer should withdraw. This is more important for what it fails to say
than for what it says. It fails to say that the lawyers should report the client’s intention to
break the law to any authority or to publicise it in any way.
In general, lawyers’ codes of ethics do not encourage any kind of ‘noisy withdrawal’
from acting for a client who proposes to act unlawfully and lawyers often object strongly
to any suggestion that ‘noisy withdrawal’ should become standard practice.13 The Law
Society of England and Wales, for example, declared in 2002 that: ‘It is not a lawyer’s job
to correct or rectify the consequences of other people’s illegal actions, or even to prevent
wrongdoing.’14 City of London law firms even deny that lawyers have any obligation to
improve public understanding of the law and tend to claim that any obligation they might
have to uphold the public interest, which they often reject in any case, is fulfilled merely
by pursuing their clients’ private interests.15
10
J. S. Bybee, ‘Interrogation of Al Qaeda Operative – Memorandum for John Rizzo, Acting
General Counsel for the Central Intelligence Agency August 1 2002’. This is the principal legal
memorandum on the definition of ‘torture’. It was signed by US Assistant Attorney General Jay
Bybee but many hands contributed to it, especially those of Deputy Assistant Attorney General
John Yoo. See Yoo’s letter to Alberto Gonzales, Counsel to the President, of the previous day
– http://nsarchive.gwu.edu/NSAEBB/NSAEBB127/020801.pdf (last accessed 23 March 2018).
See further D. Cole (ed.) The Torture Memos: Rationalizing the Unthinkable (New York: New
Press, 2013), R. Abel, ‘Contesting Legality in the United States after September 11’ in T. Halliday,
L. Karpik and M. Feeley, Fighting for Political Freedom (Oxford: Hart, 2007) 361 and P. Sands,
Torture Team: Deception, Cruelty, and the Compromise of Law (London: Allen Lane, 2008).
11
O. Engdahl and B. Larsson, ‘Duties to Distrust: The Decentring of Economic and White-
collar Crime Policing in Sweden’, (2016) 56(3) British Journal of Criminology 515–36; P. Solomon,
‘Authoritarian Legality and Informal Practices: Judges, lawyers and the state in Russia and China’
(2010) 43 Communist and Post-Communist Studies 351–62.
12
A. Batory, ‘Defying the Commission: Creative Compliance and Respect for the Rule of Law
in the EU’ (2016) 94(3) Public Administration 685–99.
13
See e.g. Loughry (n 7) 48.
14
Ibid.
15
Ibid., 48–9.
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The ABA’s rule places much weight on ‘good faith’ in creative compliance. Lawyers are
required to hold an honest belief in their interpretation of the law but little else. English
lawyers need only believe that their interpretation is ‘properly arguable’,16 which appears
to mean only that they must honestly believe that the point was not ‘utterly hopeless’.17
They are not required to show that they believed that it was likely that a court might agree
with their interpretation, only that it was possible that one might do so.
One defence of creative compliance is that rule by law requires only compliance with the
precise terms of the law, so that if no legal rule is technically breached no incompatibility
with the rule of law arises. That defence has a number of problems. First, if lawyers allow
themselves the luxury of advising clients to act based on the ‘properly arguable’ rather
than the probably correct, the overall effect of legal advice will be to reduce the proportion
of occasions on which one would be in compliance with even a technically interpreted
rule. Secondly, assuming that clients unadvised would tend to take a more cautious view
than ‘creative’ lawyers of what the law requires, even if the professional requirement were
an honest belief that the lawyer’s interpretation was probably correct, the net effect of
creative legal advice would still be to reduce overall compliance with the law. Thirdly,
legalism, in the sense of verbal trickery or taking advantage of the ultimate indeterminacy
of human language in attempting to escape from obligations obvious to others, tends
to reduce confidence in all legal rules and thus arguably to reduce the effectiveness of
the legal system as a whole.18 Finally, creative compliance might produce in regulators
and legislators a reaction in the form of encouraging them to create broad discretionary
powers to reinterpret or ignore the rules as the authorities see fit, which undermines the
rule of law in a different sense.19
Lawyers and Formal Legality
The second meaning of the rule of law is formal legality, a state of affairs in which
every action of the state can and must be justified by reference to positive law. This
is different from ‘legal formalism’, which is a style of legal reasoning characterised,
roughly speaking, by taking the precise formulation of a legal rule more seriously than
its context or purpose.20 Formal legality is a constitutional principle that requires each
16
Bar Standards Board Handbook r. C9.2.b. For solicitors, advancing claims that are not
‘properly arguable’, while not itself forbidden, constitutes an ‘indicative behaviour’ pointing in the
direction of a finding that the applicable principles have not been adhered to.
17
R (Akram and Akram) v Secretary of State for the Home Department [2015] EWHC 1359
(Admin).
18
Cf W. B. Wendel, ‘Professionalism as Interpretation’ (2005) 99 Northwestern University LR
1167.
19
McBarnet and Whelan (n 8).
20
For an extended and less rough exposition of the meanings of legal formalism, see F. Schauer,
‘Formalism’ (1988) 97 Yale LJ 509–48. Non-lawyers tend to think that formalism increases legal
certainty, but whether that is true is the subject of a long-running debate. The counter-argument
is that because human language is always to some extent indeterminate, formalism introduces a
random element into interpretation, an element more purposive methods tend to some extent to
suppress. See generally, K. Llewellyn, The Common Law Tradition: Deciding Appeals (Boston:
Little, Brown, 1960). The arguments have now become somewhat paradoxical. For example, one
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and every application of public power to be grounded in a pre-existing and ascertain-

able legal rule that grants to the person exercising that power an authorisation so to
act. It is the rejection of any conception of the state in which the state exists and acts
outside the law.
As in the case of rule by law, lawyers have an interest in maintaining and furthering
formal legality. A political system that refused to recognise the principle of formal legality,
in which, for example, the law regulated the conduct of private parties but not the conduct
of state officials, would be one in which the demand for legal services, both from the state
and from citizens would be lower, and possibly one in which lawyers would have less
prestige, since their role would essentially be to act as messengers of the state, not to have
any power over the state.
The issue is again the extent to which lawyers act according to their long-term inter-
est. They certainly often have opportunities to promote the concept of formal legality,
not just through public law litigation but through participation in public debate. And
there are examples of such opportunities being taken. One particularly striking example
is the role of lawyers in public international law. As James Crawford has remarked:
‘If the existence of international law, or its status as law, is for some uncertain or
doubtful, one cannot doubt the existence of international lawyers.’21 Because for the
most part public international law lacks an enforcement system, it is only effective to
the extent that government departments and agencies use it and refer to it. How does
that happen? It comes about largely, or perhaps even solely, because international legal
advisers to governments make it their business to ensure that governments comply with
But the collective interest of lawyers in the maintenance and extension of formal
legality is no guarantee that individual lawyers always behave in a manner that serves
that collective interest. In particular, governments might perceive that their interest lies in
denying the principle of formal legality. State officials might hold the view that the state is
justified in trying to free itself from legal control when it considers that the public interest
so requires. To the claim that the state cannot rationally make such a claim because the
state is itself a creation of the law, such officials might reply that for them the state exists in
its own right, independent of the law, depending on a purely political form of authority.23
One might argue that lawyers representing such officials might be undermining the long-
term interests of their own profession if they help to hone and deploy arguments that,
if successful, would free the state of an obligation to justify itself legally, but that does
not preclude them from doing so as individuals. In public international law, for example,
line of thought is that in the interpretation of contracts businesses prefer literal interpretations not
because they are accurate but precisely because they are inaccurate, so encouraging the parties to
settle their disputes without pursuing expensive litigation.
21
J. Crawford, ‘International Law as Discipline and Profession’, (2012) 106 Proceedings of the
Annual Meeting of the American Society of International Law 471, 472.
22
See Sir F. Berman, ‘The Role of the International Lawyer in the Making of Foreign Policy’
in C. Wickremasinghe (ed.), The International Lawyer as Practitioner (London: BIICL, 2000) 3–4.
See further S. Bouwhuis, ‘The Role of an International Legal Adviser to Government’ (2012) 61
International and Comparative Law Quarterly 939–60.
23
See D. Howarth, ‘The Politics of Public Law’ in M. Elliott and D. Feldman, The Cambridge
Companion to Public Law (Cambridge: CUP, 2015).
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many of the proponents of the view that international law is not law and should have no
inhibiting effects on states have themselves been lawyers in government service.24
One can even see the same duality in constitutional law. The principle of formal legality
is not, for example, fully accepted in the United Kingdom. Although the doctrine that
‘the King can do no wrong’ has been abrogated for the purposes of nearly all legal actions
against the government, and in any case was always a two-edged doctrine since it could be
interpreted as removing sovereign immunity from unlawful acts by people other than the
monarch, as late as 1993 a Secretary of State argued, albeit unsuccessfully, that, ‘Neither
the Crown in general nor a department of state nor a minister of the Crown acting in
his capacity as such is amenable to proceedings in contempt’ or to any other coercive
process in the courts.25 The Secretary of State asserted that he was not claiming that he
was ‘above the law’ but he was claiming that he was entitled to come his own conclusions,
uncoerced by the courts, about what the law requires.26 A similar debate has been run-
ning for nearly 200 years about the relationship between the courts and Parliament, with
Parliament insisting that it has exclusive jurisdiction over its own procedures, including
jurisdiction over the interpretation of relevant statutes27 while resisting the courts’ claim
to Kompetenz-Kompetenz over the relationship between the two institutions.28 Lawyers
appear on both sides of these debates, both in the courts and in Parliament. Belief in
‘autonomist’ or ‘political constitution’ theories of the British system of government is
not confined to non-lawyers.
An important if contested aspect of formal legality is the claim that it is incompatible
with discretionary power.29 In this respect too lawyers have had a dual role. On the
one hand lawyers have been prominent in campaigns against arbitrary power,30 from
England in the seventeenth century and France in the eighteenth century through to
Japan and Turkey in the twentieth century and China and the USA in the twenty-first
century.31 But on the other hand, lawyers in Germany offered little or no resistance to
the rise of the Nazis and Italian lawyers largely acquiesced to Fascism’s bypassing of the
24
E.g. J. Bolton, ‘Is there really “Law” in International affairs?’ (2000) 10 Transnational Law &
Contemporary Problems 1.
25
In Re M (on appeal from M v Home Office) [1994] 1 A.C. 377, 383.
26
Ibid., 382.
27
Bradlaugh v Gossett (1884) 12 Q.B.D. 271.
28
Stockdale v Hansard (1839) 9 A & E 1; R v Chaytor [2010] UKSC 52, [2011] 1 A.C. 684.
See further Howarth (n 23) and D. Howarth, ‘Is the Lex Parliamentaria Really Law? The House
of Commons as a Legal System’ in P. Evans, Essays on the History of Parliamentary Procedure
(Oxford: Hart, 2017)
29
The claim is contested because it is possible to argue that the exercise of a discretionary
power is formally lawful if the power has been granted legally and so there is no necessary opposi-
tion between legality and discretion.
30
T. Halliday and L. Karpik, ‘Political Lawyering’ in N. Smelser and P. Baltes, International
Encyclopaedia of the Social and Behavioural Sciences (Elsevier: Amsterdam, 2001) 11673, 11675–6
and T. Halliday and L. Karpik, ‘The Legal Complex and Struggles for Political Liberalism’ in
T. Halliday, L. Karpik and M. Feeley, Fighting for Political Freedom (Oxford: Hart, 2007). See
gen. T. Halliday and L. Karpik, Lawyers and the Rise of Western Political Liberalism (Oxford:
Clarendon, 1997).
31
Karpik, ‘Political Lawyers’ in Halliday, Karpik and Feeley, Fighting for Political Freedom,
ibid., 463, 477–81.
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ordinary courts.32 In particular, the ease with which in 1933 the Nazis achieved the col-
lapse of the independent institutions of the German bar, incorporating the legal profes-
sion across Germany into the structures of the Nazi Party, is striking.33 Admittedly the
Nazis used physical intimidation to induce some bar associations to dissolve themselves,
but the leading historian of the German bar in the twentieth century concluded: ‘In
order to preserve their profession, lawyers sacrificed their liberal tradition and vaunted
autonomy with astonishing alacrity.’34 The profession for the most part stood by as the
Nazis established a special court system which embodied arbitrary power at its most
extreme: subordinating legality to the will of the Führer and abrogating in its entirety
the principle that no one should be punished except for a pre-established crime.35
One theory is that lawyers are not immune to the ‘class logic’ of their own socio-eco-
nomic position, which can sometimes overwhelm legal values.36 Another is that although
lawyers might invariably be committed to procedural propriety, more fundamentally
their work relies on the efficacy of the state.37 The law of an ineffective state would be an
irrelevance to potential clients. As a result, lawyers might be inclined to favour the con-
struction of effective state institutions, and to accept as legitimate even broad discretion
if it nevertheless helps to stabilise those institutions.38
32
Karpik, ibid., at 474, K. Ledford, ‘Lawyers and the Limits of Liberalism: the German Bar in
the Weimar Republic’ in Halliday and Karpik, Lawyers and the Rise of Western Political Liberalism
(n 30) 349, and C. Guarnieri, ‘Lawyers and Statist Liberalism in Italy’ in Halliday, Karpik and
Feeley, Fighting for Political Freedom (n 30), 439.
33
See e.g. Ledford, ibid., 229–31.
34
K. Jarausch, The Unfree Professions: German Lawyers, Teachers, and Engineers 1900–1950
(Oxford: OUP, 1990) 119.
35
R. Rachlin ‘Roland Freisler and Volksgerichthof: The Court as an Instrument of Terror’, in
A. Steinweis and R. Rachlin, The Law in Nazi Germany: Ideology, Opportunism, and the Perversion
of Justice (Oxford: Bergbahn Books, 2013) 63–88. Those lawyers who were most implicated in the
regime defended themselves on the basis of the Führerprinzip – a defence that not surprisingly
failed at Nuremburg: see H. Reicher, ‘Evading Responsibility for Crimes against Humanity:
Murderous Lawyers at Nuremburg’ in Steinweis and Rachlin, ibid., 137–60.
36
Karpik (2007), 475.
37
See Max Weber, Economy and Society (Roth and Wittich eds), (Berkeley: University of
California Press, 1978), 876:
If the legal profession of the present-day manifests at all typical ideological affinities to
various power groups, its members are inclined to stand on the side of ‘order’, which means in
practice that they will take the side of the ‘legitimate’ authoritarian political power that happens
to predominate at the given moment.
Weber also points to the decline of natural law and the rise of legal positivism as a cause of
this orientation. See also S. Jacobson, Catalonia’s Advocates: Lawyers, Society, and Politics in
Barcelona, 1759–1900 (Chapel Hill, N.C.: University of North Carolina Press, 2009) 242–4.
38
Cf, Carlo Guarnieri, ‘Lawyers and Statist Liberalisms in Italy’, in Lucien Karpik, Terence C.
Halliday, and Malcolm M. Feeley (eds), The Legal Complex and Struggles for Political Liberalism,
(Oxford: Hart Publishing 2007) 439–62. A variation is that proposed by Karpik with regard to
Israel, whose lawyers, according to one researcher (G. Barzilai, ‘The Ambivalent Language of
Lawyers in Israel: Liberal Politics, Economics, Liberalism, Silence and Dissent’ in Halliday, Karpik
and Feeley, Fighting for Political Freedom, (n 30) 247) hesitate to extend their support for formal
legality into cases in which it might threaten the security of the state. But see more generally, Dotan
(n 5) for a more nuanced view.
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The tendency among lawyers towards mild statism and the capacity of creative
compliance to cause a reaction in the direction of broad discretion come together in
some dilemmas faced by lawyers working within government. Government lawyers face
the ordinary ethical problems of lawyers in having to reconcile their clients’ objectives
with professional and personal commitments but in addition their role is complicated
by the fact that they are civil servants bound to pursue the policy objectives of the
government of the day and more generally to the interests of the state.39 Some react
by adopting an ideologically reinforced version of the ‘hired gun’ model of lawyer-
ing, which can take them, as in the case of the US government lawyers who justified
‘enhanced interrogation techniques’, into ‘legalising lawlessness and illegality’. This
went as far as creating arguments aimed at freeing the US President from any legal
constraint, whether from statutes passed by Congress, from the Constitution or from
At the other end of the spectrum, some government lawyers resist government lawless-
ness and resign from government service when the conflicts of duty become intolerable.
A striking example of a lawyer taking the approach of resistance was the resignation of
the UK Foreign Office’s Deputy Legal Adviser, Elizabeth Wilmshurst, over the legality of
Iraq War in 2003 (although even that was a ‘quiet’ withdrawal).41
In between the two, government lawyers might see themselves as bringing the values
of formal legality into the policy debate but leaving the ultimate decision about whether
to respect those values in any particular case to politicians. Inside the British government
lawyers follow a related strategy of endeavouring to avoid conflict by redefining legal
problems as ones of risk management and trying to guide ministers in the direction of
less risky options.42
Lawyers and the Contestability of Law
Jeremy Waldron has argued that: ‘[O]ur understanding of the Rule of Law should
emphasize not only the value of settled, determinate rules and the predictability that
such rules make possible, but also the importance of the procedural and argumentative
aspects of legal practice.’43 This aspect of the rule of law concerns the ability of individu-
als to challenge in open court legal interpretations used against them and to offer legal
39
See Dotan ibid., 8, Howarth, (n 9), 139, B. Yong, Risk Management: Government Lawyers
and the Provision of Legal Advice within Whitehall (London: Constitution Society, 2013), 69.
40
Abel (n 10), 371–2.
41
For a full account see Prof. Wilmshurst’s evidence to the Iraq Inquiry, at www.iraqinquiry.
org.uk/media/44211/20100126pm-wilmshurst-final.pdf (last accessed 23 March 2018).
42
Yong (n 39) 71–80.
43
Jeremy Waldron, ‘The Concept and the Rule of Law’, (2008) 43 Georgia Law Review 1, 5;
see also B. Ewing and D. Kysar, ‘Prods and Pleas: Limited Government in an Era of Unlimited
Harm’ (2011) 121 Yale LJ 350: ‘[T]here is another side to the value of the rule of law that is
especially significant in the adversarial American system: law as a structured discourse in which
individuals are entitled to articulate their grievances or face their accusers, to stake their claims,
and to advance reasons in support of them.’ See generally D. Remus and F. Levy, ‘Can Robots
Be Lawyers? Computers, Lawyers, and the Practice of Law’ December 30, 2015 http://ssrn.com/
abstract=2701092.
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interpretations that favour their own claims. It is rule by contestable law, as opposed to
rule by unchallengeable decree.
The duality of lawyers’ contribution to the contestability of law appears even in
Waldron’s own formulation. The stereotype of a lawyer is someone who encourages litiga-
tion and who works in an ‘argumentative’ way, but in reality far more of legal practice is
built on ‘settled, determinate rules’, especially the rules that make possible the design of
contracts, companies, and the transfer of property.44 Resort to litigation is, for lawyers
working on transactions, a sign of the failure of a legal design to work without mishap.45
Moreover, litigation, by opening up the possibility of new interpretations, is a potential
threat to the stability of the law itself. Transactions lawyers are not looking for arguments
that might persuade a judge, they are looking for law solid enough in the minds of other
lawyers that no one would even think about asking a court to reconsider it.46 Litigation,
as some commentators have noted, has a war-like or anarchic tendency, in which litigators
are tempted to take any point that furthers their client’s interest regardless of its effects
on the coherence and predictability of the law.47 Anarchy or warfare is the last thing
transactions lawyers, and their clients, want. Very occasionally, litigation might be useful
to settle an uncertain point of law when uncertainty about it might be obstructing the
finalisation of deals48 but even then, the parties risk an uncomprehending court making
matters worse.
Some sections of the legal profession are undoubtedly oriented towards litigation
and towards challenging existing interpretations of the law. Some ‘cause’ lawyers,
whose practice revolves around using the law to advance political or social causes,
are particularly committed to litigation, either as a means of defending the interests
of particular categories of people or aimed at changing the law in a way that favours
particular political or ethical points of view.49 Sometimes the cause might even be an
aspect the rule of law itself, such as access to the courts or fair procedure. ‘Cause’ lawyer-
ing is, however, very much a minority interest within the profession, a ‘deviant strain’.50
In its ‘transgressive’ variant, in which lawyers identify with their cause so strongly that
44
Howarth (n 9) 23–5.
45
D. Howarth, ‘Is Law a Humanity – Or is it more like Engineering?’ (2004) 2(1) Arts and
Humanities in Higher Education 9, 12, John Flood, What do Lawyers Do? An Ethnography of a
Corporate Law Firm (New Orleans: Quid Pro, 2013) 94–5.
46
Howarth (n 9) 10–12, 194–5.
47
R. Gordon, ‘The Role of Lawyers in Producing the Rule of Law: Some Critical Reflections’,
(2010) 11 Theoretical Inquiries in Law 441, 452, Howarth (n 9) 93–4.
48
This sometimes happens, for example, in tort law when insurance companies are prepared to
push an otherwise trivial case into the highest courts so that they can obtain a clear ruling on the
extent of their customers’ liability, thereby allowing other cases to be settled and future premiums
to be set accurately. An example might be White v Jones [1995] 2 A.C. 207, [1995] 1 All E.R. 691,
a case of professional negligence by a solicitor about a will that concerned less than £10,000 but
which nevertheless ended up in the House of Lords.
49
The literature on ‘cause’ lawyering is now immense (much bigger than the literature on cor-
porate lawyering even though there are far more corporate lawyers than cause lawyers). See e.g. A.
Sarat and S. Scheingold (eds), Cause Lawyers and Social Movements, (Stanford: Stanford UP, 2006).
50
A. Sarat and S. Scheingold, ‘The Dynamics of Cause Lawyering: Opportunities and
Constraints’, in A. Sarat and S. Scheingold (eds), The Worlds Cause Lawyers Make: Structure and
Agency in Legal Practice (Stanford: Stanford UP, 2005) 1, 2.
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they abandon professional postures of neutrality, the numbers are very low; under 1
per cent of lawyers in private practice according to some estimates.51 Even within the
small number of lawyers who identify with a cause, not all will see litigating as their
main contribution to the cause. Some will see as their contribution smoothing away
purely legal entanglements that might obstruct the clear communication of their clients’
political message. The ultimate example of this form of legal practice is that engaged in
by those lawyers who offer to assist protesters taking part in civil disobedience. Their
objective is to help their clients make their point and only incidentally to win cases,
although one might argue that civil disobedience is sometimes itself a contribution to
the contestation of the law.52
More conventional litigation is also a minority activity, although a larger minority than
‘cause’ lawyering. Estimates usually come out in a range of 20–25 per cent of lawyers’
aggregate effort being taken up by court-related activity.53 Litigators have an undoubted
economic interest in the argumentative and claim-making aspects of law. But litigators
also understand that pushing a case all the way to court is rarely in the client’s best interest.
Often it is not even in the financial interests of the lawyers, since they might make more
money by accepting a new case than by bringing an existing one to trial. Litigation is
principally an extended process of settlement rather than giving the client a day in court
or the lawyers an opportunity to challenge existing interpretations.54 Even ‘repeat player’
clients who are able to ‘play for the rules’, that is to choose cases to fight on the basis
of their potential for bending the law in a desired direction, prevail in the long term not
only because of the cases they choose to fight but also because of the ones they choose
to settle.55
Two other issues are related to contestability as an aspect of the rule of law: an honest
judiciary and access to justice. Without an honest judiciary contestability is a fraud and
without access to justice it is a fiction.
Lawyers usually favour an honest judiciary, not least because their economic interests
point in that direction. As one lawyer pithily described the situation, ‘Why hire a lawyer if
you can buy a judge?’56 Lawyers’ commercial clients also usually favour honest courts and
51
See e.g. A. Boon, ‘Lawyers in a Cold Climate: The Impact(s) of Globalization on the United
Kingdom’ in A. Sarat and S. Scheingold, Cause Lawyering and the State in a Global Era (Oxford:
OUP, 2001) 143.
52
Very few empirical studies of such lawyers seem to exist, although one can find an ethical
literature. See e.g. M. Doherty, ‘Fearless Counsel: Being an Attorney for the Civil Disobedient’
(2014) Notre Dame Journal of Law, Ethics, and Public Policy 1043–68, On the idea of civil disobedi-
ence as an internal contestation mechanism for the rule of law, see C. May, The Rule of Law: The
Common Sense of Global Politics (Cheltenham: Edward Elgar, 2014) 160–69.
53
Howarth (n 9) 23–6; Flood (n 45) Ch. 4
54
Flood, ibid., Ch. 8; M. Galanter, ‘World of Deals: Using Negotiation To Teach About Legal
Process’ (1984) 34 Journal of Legal Education 268.
55
M. Galanter, ‘Why the “Haves” Come out Ahead: Speculations on the Limits of Legal
Change’ (1974) 9(1) Law & Society Review 95; C. Albiston, ‘The Rule of Law and the Litigation
Process: The Paradox of Losing by Winning’, in H. Kritzer and S. Silbey, (eds) In Litigation: Do the
Haves Still Come Out Ahead (Stanford: Stanford University Press, 2003) 168.
56
M. Pepys, ‘Corruption within the Judiciary: Causes and Remedies’, in D. Rodriguez and
L. Ehrichs, Transparency International Global Corruption Report: 2007: Corruption in Judicial
Systems (Cambridge: CUP, 2007) 3, 4.
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that provides a further motivation for lawyers to take that view.57 Admittedly, individual
lawyers have taken part in corruption, acting as couriers for litigants’ bribes and failing
to expose misconduct by judges or other lawyers.58 They have also taken an active part
in systems of political patronage and clientelism.59 The balance is nevertheless heavily on
the side of promoting honesty.
The position with regard to access to justice is slightly more evenly balanced. Lawyers
like to emphasise professional traditions and standards that encourage the provision of
free or low-cost legal services.60 Lawyers’ motives in providing pro bono services are
admittedly mixed.61 Law firm managers might be thinking about external considera-
tions such as the recruitment and retention of idealistic young lawyers, opportunities for
training inexperienced lawyers and general public relations rather than lofty ideals.62
Moreover real life practice comes nowhere near the aspirations of the bar associations.63
Nevertheless, lawyers do contribute to some degree to expanding access to justice.
Lawyers are also normally to be found politically on the side of expanding legal aid or at
least resisting cuts in it, having an interest in maintaining the market for their services and
in persuading the state to continue to subsidise them.64
On the other hand, as Richard Abel has been pointing out for many years, lawyers,
like all professions, tend to create and exploit monopoly.65 Monopolists maximise their
profits by limiting supply and driving up prices.66 Abel contends that this is precisely
what legal professions attempt to do, with the result that they provide a smaller quantity
of legal services than a competitive market would supply. In addition, although lawyers
usually defend legal aid once the state has instituted it, they are rarely in the forefront
of advocating it in the first place. Lawyers in England, for example, feared that state-
supported legal advice would take away their business. Only when legal aid became
57
This is strikingly demonstrated in M. Raiser, A. Rousso and F. Steves, ‘Trust in Transition:
Cross-country and Firm Evidence’ (EBRD Working Paper, 2003): businesses react positively to
countries with courts whose reputation is for honesty and fairness and not to those with courts
whose reputation is for speed of decision.
58
A. Tsunga and D. Deya, ‘Lawyers and Corruption: a View from East and Southern Africa’
in Rodriguez and Ehrlichs (n 56) 92.
59
See e.g. M. Gomez, ‘Greasing the Squeaky Wheel of Justice: Networks of Venezuelan law-
yers from the pacted democracy to the Bolivarian revolution’, in Y. Dezalay and B. Garth, Lawyers,
and the Rule of Law in an Era of Globalization (Abingdon: Routledge, 2011) Ch. 2.
60
E.g. ABA Code of Professional Conduct Rule 6.1. See generally D. Rhode, Pro Bono in
Principle and in Practice: Public Service and the Professions (Stanford: Stanford UP, 2005) 1–25,
100–24.
61
See Rhode, ibid., 131.
62
D. Rhode, ‘Rethinking The Public In Lawyers’ Public Service: pro bono, strategic philan-
thropy, and the bottom line’ (2009) 77 Fordham L. Rev. 1435, 1441.
63
Rhode (n 60) 145–8; Rhode, ibid., 1438–9.
64
See e.g. Conseil des barreaux européens, CCBE recommendations on legal aid (2010), demand-
ing pan-EU minimum standards for legal aid and EU-level funding http://www.ccbe.eu/fileadmin/
user_upload/NTCdocument/EN_Legal_Aid_recomme1_1291033916.pdf (last accessed 23 March
2018). and, from the Law Society of England and Wales on cuts in criminal legal aid http://www.
lawsociety.org.uk/news/documents/Criminal-legal-aid-letter-to-lord-chancellor/ (last accessed 23
March 2018). .
65
R. Abel, The Legal Profession in England and Wales (Oxford: Blackwell, 1988).
66
Or, more accurately, by some combination of restriction of supply and price discrimination.
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inevitable did they change their attitude, judging that they would have more control over
the proposals from the inside than from the outside.67
Lawyers and Constitutional Checks and Balances
It is possible to conceive of the rule of law as going beyond formal legality and into the
realm of establishing and maintaining a constitutional state, a state in which political
power, the concentration of which is thought dangerous, is dispersed and limited by legal
means, for example, by a legally enforceable separation of powers and by legally enforce-
able fundamental human rights. Terence Halliday and Lucien Karpik’s research project
has detailed the part played in many parts of the world by lawyers, and more generally by
a ‘legal complex’ of lawyers, judges, and legal academics, in establishing and maintaining
both basic rights and what they call a ‘moderate state’ in which power is dispersed.68
The main locus of lawyers’ participation in the political struggle for a ‘moderate
state’ is a politically independent judiciary.69 The pattern was set in England in the late
seventeenth century: lawyers were prominent in the successful campaign in the English
House of Commons between the Bill of Rights 1689 and the Act of Settlement 1701 to
secure the right of judges not only to be appointed quamdiu se bene gesserint instead of
at the pleasure of the monarch but also to be guaranteed their salaries.70 For example,
the 55-strong bill committee appointed by the Commons to consider a bill on judicial
commissions and salaries in 1693 contained a large number of practising lawyers, together
with a considerable number of gentleman who had been educated at the Inns of Court,
making up nearly half of the committee.71
Lawyers played a similar role in the struggle for judicial independence in France in
the eighteenth century and Germany in the nineteenth.72 In Pakistan in the twenty-first
67
See A. Paterson and D. Nelken, ‘Evolution in Legal Services: Practice Without Theory?’
(1983) 2 Civil Justice Quarterly 229 and T. Goriely, ‘Law for the Poor: The Relationship Between
Advice Agencies and Solicitors in the Development of Poverty Law’ (1996) 3 Int’l J. Legal Prof.
215.
68
E.g. Halliday and Karpik, Lawyers and the Rise of Western Political Liberalism (n 30) and
Halliday, Karpik and Feeley, Fighting for Political Freedom (n 30).
69
Halliday, Karpik and Feeley ibid., 4.
70
See e.g. R. Stevens ‘The Act of Settlement and the Questionable History of Judicial
Independence’, (2001) 1 Oxford University Commonwealth Law Journal 253. As Stevens points out,
the Act of Settlement was only a beginning. Appointment of judges free from political interference
took another 300 years to achieve in England.
71
Based on counts using the resources of the History of Parliament Trust’s biographies
of members of parliament, especially D. Hayton, ‘Appendix XV: Professional lawyers’, in
ed. D. Hayton, E. Cruickshanks, S. Handley (eds), The History of Parliament: the House of
Commons 1690–1715, Cambridge: Cambridge UP, 2002), http://www.historyofparliamentonline.
org/volume/1690-1715/survey/appendix-xv-professional-lawyers (last accessed 23 March 2018).
Around 15 of the members of the committee were practising lawyers, according to Hayton’s
classification. That is around twice the proportion of lawyers for the Parliaments of 1690–1715.
The committee is listed at House of Commons Journal Vol. 10: 6 February 1692, in Journal of the
House of Commons: Vol. 10, 1688–93 (London, 1802), pp. 654–6. British History Online http://
www.british-history.ac.uk/commons-jrnl/vol10/pp654-656 (last accessed 12 April 2016).
72
Halliday, Karpik and Feeley, Fighting for Political Freedom (n 30), 4.
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century, lawyers took to the streets to protest against political interference in the judici-
ary.73 Although not involved in street protests, 70 years earlier, US lawyers had similarly
mobilised against Roosevelt’s threat to pack the Supreme Court with judges favourable
to his New Deal, finding it repugnant ‘not . . . so much for its politics as for its assault on
the independence of courts from substantive ideology’.74
In the late twentieth and early twenty-first centuries, lawyers have become intimately
involved in many parts of the world in a different aspect of the creation of a moderate
state, namely the promotion of basic or ‘human’ rights.75 It is not unusual to find lawyers
at the head of human rights NGOs or even engaging in direct political action in favour of
human rights and constitutionalism.76
But even this apparently most comfortable of affinities is not perfect. German lawyers
were successfully intimidated into doing little to oppose the rise of the Nazis and accord-
ing to some interpretations many in the profession were sympathetic to authoritarian-
ism.77 Similar accusations have been levelled against Japanese lawyers between 1930 and
1945. In the early 1930s some Japanese lawyers protested against the use of authoritarian
‘emergency’ laws, but such protests died out as the decade proceeded and some lawyers
even became champions of the government.78 In other countries some lawyers, while not
hostile to constitutionalism might, to some extent, have shown themselves to be indiffer-
ent to departures from it when it has clashed with perceived national interests (an attitude
that appeared even in the US and the UK after the rise of terrorism in the late twentieth
century and early twenty-first century).79
Some lawyers have a close relationship with judges, and so will often identify with
the interests of the judiciary, but other lawyers have a countervailing relationship with
the executive branch of government, which employs them and provides opportunities
for lawyers with political ideals to attempt to put those ideals into practice. Admittedly,
the moral authority of lawyers, within government as much as outside it, depends to
a significant extent on lawyers’ ability to present their expertise as technical and not
political.80 That requirement means that they cannot completely abandon the judiciary
because their own claim to expertise depends largely on having insight into the thinking
of judges, but they can treat judges primarily as obstacles to achieving their ends rather
than as objects of veneration.
One other possible method for dispersing the political power of the state might be
mentioned, namely democracy. Here the record of lawyers is, perhaps surprisingly,
weak. Even Halliday and Karpik conclude that lawyers, especially in the guise of their
73
See e.g. Z. S. Ahmed and M. Stephan, ‘Fighting for the Rule of Law: Civil Resistance and the
Lawyers’ Movement in Pakistan’ (2010) 17(3) Democratization 492.
74
Halliday (n 1), interpreting the evidence presented in R. Shamir, Managing Legal Uncertainty:
Elite Lawyers in the New Deal (Durham NC and London: Duke UP, 1995).
75
Karpik (n 31) 466–7.
76
E. Gobe and L. Salaymeh, ‘Tunisia’s “Revolutionary” Lawyers: From Professional Autonomy
to Political Mobilization’ Law & Social Inquiry. doi: 10.1111/lsi.12154.
77
Karpik (n 31) 474; Ledford (n 32).
78
M. Feeley and S. Miyazawa, ‘The State, Civil Society and the Legal Complex in Modern
Japan: Continuity and Change’, in Halliday, Karpik and Feeley (n 30) 151–89 at 165.
79
Karpik (n 31) 476–7.
80
Halliday (n 1), 1033.
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professional bodies, have not been particularly prominent in, for example, movements to
extend voting rights.81 Individual lawyers might have taken up, as ‘cause’ lawyers, projects
regarding the franchise or other issues of democratic equality such as campaign finance
regulation, but lawyers do not seem more likely than non-lawyers to be concerned about
such issues. In some places, particularly in France, lawyers took on a ‘representative’ role
themselves, claiming to speak for the public and perhaps thereby creating a public,82 but
other examples are difficult to identify. Although Max Weber said, ‘Modern democracy
has been inextricably linked to the modern advocate’,83 that link seems now to be broken
and lawyers appear to be retreating from democratic politics.84
Karpik comments that democracy is not necessarily correlated with ‘moderate’ govern-
ment and indeed populist, majoritarian government might be considered a threat to it.85
That is undoubtedly so, but in many places democratic movements have aimed at control-
ling and rendering accountable existing state power rather than at justifying a tyranny of
the majority, and so one might at least have expected lawyers to play a leading role in such
moderating movements. In at least one case, that of Spain in its transition from Franco
to democracy in the 1970s, some evidence exists for the proposition that lawyers played
a significant role in democratisation.86 In established democracies, however, legal distrust
of or even disdain for democratic politics is common.87
Lawyers and Economic Certainty
Many writers have asserted that, in the words of one their critics, ‘well-functioning mar-
kets require the support of a framework of clearly defined and effectively and predictably
enforced legal rules and rights’.88 This perspective can also extend to a claim that the rule
of law ‘entails low marginal tax rates and levels of regulation’.89
Whether or not legal certainty in this sense is a driver of economic prosperity is a
matter of some dispute. The World Bank and the IMF were once very confident of
its existence. Max Weber, however, pointed out a century ago that the two features
of the Common Law that seemed to help the development of capitalism in England
were that the judiciary was selected from lawyers whose livelihoods had depended
on serving the propertied classes and that the court system was so centralised and
81
Halliday, Karpik and Feeley, Fighting for Political Freedom (n 30) 4.
82
See e.g. D. Bell, ‘Barristers, Politics, and the Failure of Civil Society in Old Regime France’
in Halliday and Karpik (n 30) 64–100; L. Karpik, ‘Builders of Liberal Society: French lawyers and
Politics’, ibid, 101–23.
83
M. Weber, Politik als Beruf (Munich and Leipzig: Duncker & Humblot, 1919) 24.
84
D. Howarth, ‘Lawyers in the House of Commons’, in D. Feldman (ed.) Law in Politics,
Politics in Law (Oxford, Hart, 2014) 41 at 42 n. 6; M. Malatesta, ‘Italian Political Elites The classi-
cal model and its transformation’ in Dezalay and Garth (n 59), Ch. 4 at 68.
85
Karpik (n 31) 468–9.
86
L. Hilbink, ‘Politicising Law to Liberalise Politics: Anti-Francoist judges and prosecutors in
Spain’s democratic transition’ in Halliday, Karpik and Feeley, Fighting for Political Freedom (n 30)
403–37.
87
Howarth (n 84), 60; Howarth (n 23), 48–9.
88
Gordon (n 47), 441. See further note 2 above.
89
Ibid.
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expensive that people of inadequate means were effectively denied access to it – in

other words that far from being clear and certain the private law rights of the bulk
of the population were effectively non-existent.90 Moreover, the broader quantitative
evidence for a direct link is not as strong as sometimes imagined.91 The effect might
be more an indirect one through levels of social trust, which have other, non-legal,
determinants.92
The role of lawyers in establishing certainty in property and contractual rights is thus
not perhaps as important an issue to resolve as sometimes claimed. Nevertheless, the over-
all position is again somewhat equivocal. On the one hand, transactions lawyers have a
very strong interest in creating and maintaining clarity and predictability in property and
contract rights, without which their activities would cease to have value for their clients.
Their role is not just a static one, looking for interpretive consensus among parties to a
particular transaction to reduce the risk of destabilising litigation and possibly capricious
court judgments. It is also dynamic, adapting the law to new situations in ways that reduce
the risk of disruptive and unpredictable political interventions.93
On the other hand, litigators have no interest in the coherence and predictability of
the law. Their job is to put their client at an advantage, either in negotiations between
the parties or in front of a court. If that requires making arguments that render the law
less coherent and predictable that is what they will do, except perhaps where judges make
known to them a strong preference for arguments based on coherence and predictability.
The bulk of lawyers engage in transactions rather than litigation,94 and transactions
lawyers are surprisingly immune to the random damage judges sometimes inflict on the
stability of their world,95 but the net contribution of lawyers to the clarity and certainty
of private law rights is not just a matter of counting heads or billable hours. The system
is rather one of constant interaction between the two. The behind-closed-doors world of
transactions lawyers, in which stability in the law is built slowly in meetings, emails and the
law firms’ knowledge management technology, is constantly having to cope with disruption
caused by the more public world of courts and decided cases. One of the central problems
of transactional practice is that, rather like road accidents, no matter how careful one is in
one’s own conduct, terrible things can happen because of the inattention and incompetence
of others.
Lawyers and Social and Economic Rights
If the claim that the rule of law is intimately connected with the stability of rights in
property and contract constitutes a ‘right-wing’ variant of the rule of the law, its counter-
part on the ‘left-wing’ is that the rule of law requires substantive legal guarantees of social
90
Weber (Roth and Wittich ed) (n 37) 891–2.
91
See e.g. S. Haggard, A. MacIntyre and L. Tiede, ‘The Rule of Law and Economic
Development’ (2008) 11 Annual Review of Political Science 205–34.
92
See e.g. S. Knack and P. Keefer, (1997), ‘Does Social Capital have an Economic Payoff ?’
(1997) 112(4) Quarterly Journal of Economics 1251–88.
93
See e.g. G. Hadfield, ‘Don’t Forget the Lawyers’ (2007) 56 DePaul LR 401.
94
See above n. 53
95
See Gulati and Scott (n 5).
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and economic equality. The argument can be framed directly, that social and economic
rights are themselves part of the rule of law, or indirectly, that social and economic rights
are essential for the realisation of some other aspect of the rule of law, for example the
social peace envisaged in rule by law or the limitations on government discretion envisaged
by human rights.96
The role of lawyers in promoting social and economic rights, however, seems to parallel
that in promoting democracy. One of the main conclusions of Halliday and Karpik’s
research is, ‘Historically, lawyers’ collective defence of civil rights does not extend to strug-
gles in favour of economic and social rights.’97 As in the case of democracy, individual
lawyers or small groups of lawyers might be involved, as ‘cause’ lawyers, in promoting
specific social or economic campaigns. The organised representative bodies of the legal
profession, however, take little interest in social and economic rights. Their focus has until
now been on civil and political rights and procedural matters.
A related but slightly different question is whether lawyers as individuals are interested
in promoting social and economic rights. Although it is possible that lawyers might see
promoting social and economic rights as a professional obligation regardless of their
personal views, this seems unlikely given the usual collective position of the profession.
It is possible, however, that people who are interested in promoting social and economic
rights are drawn disproportionately to the legal profession, with the result that one might
possibly expect lawyers on average to promote such rights.
This is ultimately a question of the political views of lawyers, a subject about which
little work seems to have been done. The problems of finding a sample that is both
representative and large enough to extract robust conclusions are formidable. The small
amount of the evidence that exists, however, tends to reproduce at the level of individual
lawyers Halliday and Karpik’s conclusion about lawyers’ collective activities. UK lawyers
seem to be more likely than the electorate as a whole to maintain liberal views on matters
such as censorship or whether schools should teach children to obey authority or on
whether the death penalty should be re-introduced but they are more likely than the
electorate as a whole strongly to oppose government redistribution of income.98 The legal
profession does not seem disproportionately to attract people committed to social and
economic rights. If anything, the opposite is the case. That result is not perhaps surprising
96
See e.g. J. King, Judging Social Rights (Cambridge: CUP, 2012), Paulo Sergio Pinheiro,
‘Democratic Governance, Violence, and the (Un)Rule of Law’ (2000) 129(2) Daedalus 119–43.
97
Halliday, Karpik and Feeley, Fighting for Political Freedom (n 30) 4.
98
These statements are based on an analysis by the author of the data contained in the British
Election Study 2015 Wave 6, in which a small number of lawyers (n=61) can be identified using
their standard occupation codes out of a total of 18,428 electors, reweighting the data to attempt
to correct for known problems in the sampling (turnout, age, region and party membership).
The statistical tests used were simple Z-tests, comparing lawyers and non-lawyers, the number
of lawyers being too low to carry out more sophisticated analysis, with the null hypothesis being
that the two groups were not different and using p<0.05 as the criterion. With the weighted data
(though, it should be noted, not with the unweighted data), lawyers also came out as more likely to
be strongly opposed than the electorate as a whole to several other economically ‘left-wing’ state-
ments, such as that ‘management will always try to take advantage of employees’ and ‘big business
takes advantage of ordinary people. It even holds for the statement ‘there is one law for the rich
and another for the poor’.
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given the high average incomes of lawyers,99 but it does illustrate the point that one should
not expect lawyers’ political views to be straightforwardly ‘progressive’ in all spheres.100
CONCLUSION
It is not possible to quantify the contribution of lawyers to the rule of law but it is possible
to offer a rough statement of account. In all senses of the rule of law covered here the role
of lawyers is to some degree supportive and to some degree undermining of the rule of
law. In one of those senses, the balance seems heavily in the direction of supportiveness,
namely formal legality, and in another the balance seems to lie heavily in the other direc-
tion, namely social and economic rights. In terms of the rule of law as rule by law and
as constitutional checks and balances, the balance is less clear cut. In both cases lawyers’
activities seem on the whole to support the rule of law, but in both cases major caveats are
necessary. In the two remaining aspects, namely contestability and economic certainty, the
balance reflects the division of the profession between transactional practice and litigious
practice. In the sense of contestability, litigious practice is on the whole supportive of the
rule of law but in the sense of economic certainty it tends to undermine the rule of law.
Transactional practice operates precisely the other way around. That cancelling out is
perhaps not surprising given that the rule of law has both a static and a dynamic aspect,
both stabilising and challenging power. Lawyers have important functions in relation to
each.
Taking the six senses together, without weighting any as more important than the
others, the overall position seems to be that lawyers’ claims to be champions of the rule
of law are not entirely without merit. They need, however, to be tempered by scepticism
and realism. The rule of law might be an unalloyed good, but the rule of lawyers is not.
99
According to the BES Wave 6 data, the median personal income of a British lawyer was
around twice the median personal income of a British non-lawyer in 2015.
100
One should note in passing that research on this topic is in danger of being undermined
by confusion about the terms ‘liberal’ and ‘conservative’. US researchers tend to think that a
‘liberal’ is someone who favours individual liberty on issues of free speech and social issues but who
also favours state intervention and redistribution on economic issues whereas a ‘conservative’ is
someone who favours traditional social values and the free market (see e.g. A. Bonica, A. Chilton
and M. Sen, ‘Political Ideology of American Lawyers’ HKS Faculty Working Paper 2015). For
many non-US researchers, however, a ‘liberal’ is someone who favours the free market and opposes
state intervention and redistribution. It might help future mutual understanding in the field if these
terms were abandoned (together with the fashionable but even more confusing term ‘neo-liberal’,
which seems to be a mixture of the socially and politically authoritarian and free market fundamen-
talism). Political views need to be observed across multiple axes and trying to reduce them all to one
(‘left-right’ or ‘liberal-conservative’) is bound to cause difficulty.
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17. The rule of law and legal education: Do they still
connect?
John Flood
When we connect legal education and the rule of law, it has two connotations: to what
extent should legal education be protected by the rule of law; and to what extent should
the rule of law be taught within legal education? It is not difficult to see how both con-
notations could cause problems in certain countries where the rule of law might exist in
a different form. For example, China is becoming a rule of law-based country in respect
of its commercial and intellectual property rights, yet its record on human rights and the
due prosecution of them is abysmal. The rule of law like most legal rubrics is slippery and
tends to avoid easy definition.1 Jeremy Waldron captures this when he says, ‘people’s
estimation of the importance of the Rule of Law sometimes depends on which paradigm
of law is being spoken about’.2 For Aristotle safety was located in customary law and
for Hayek it was the evolutionary development of the Common Law.3 Tom Bingham’s
idea of a thick definition of the rule of law is appealing since it is elastic and has an
anthropological intuition about it that maintains a connection to community.4 In con
trast to Waldron who would keep the rule of law at a meta-level rather than a substantive
one, Bingham includes specific instances of rule categories such as, notably, the Universal
Declaration of Human Rights in which the right to education is enshrined.5
In this chapter my focus is not so much on the theoretical debates surrounding the rule
of law but rather how it is implicated and treated in the developments of modern legal
education and practice. I first analyse the changing legal world for which the salient period
is the post-World War II to the present. The rise of the international and transnational
institutions, and the emergence of the modern, organisation-based, and increasingly
financialised, legal profession, have played a significant role in globalisation. To provide
the labour force for the profession the academy’s role has come to the fore and is now
the main gateway to the legal profession. Even with its duality of roles as reproducer
and gatekeeper, the academy has become more remote from the profession. This in part
reflects a desire on the part of the legal academy to be a more academic and intellectual
than hitherto.6 The rise of subspecialties within law marks this shift, as does the
increased number of law professors with PhDs, often in other disciplines. The increased
1
May, Christopher (2014) The Rule of Law: The Common Sense of Global Politics. Cheltenham:
Edward Elgar.
2
Waldron, Jeremy (2012) The Rule of Law and the Measure of Property. Cambridge: CUP, p.9.
3
Ibid., but cf. May, Christopher (2010) ‘The Rule of Law: What Is It and Why Is It ‘Constantly
on People’s Lips’ Political Studies Review <doi: 10.1111/j.1478-9302.2010.00222.x>. Last accessed
25 May 2016.
4
Bingham, Tom (2010) The Rule of Law. London: Penguin Books.
5
Ibid., p.83.
6
Cownie, Fiona (2004) Legal Academics: Cultures and Identities. Oxford: Hart Publishing.
289
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tensions between the academy and the profession have fostered argument over both the
content and structure of the law degree. One might almost ask if the issue is not so much
the rule of law but the rule of lawyers. Finally, I examine some of the challenges for legal
education (such as the rise of legal technology) that will have enormous effects on legal
practice and the rule of law, especially where it concerns access to justice.
My approach to the topic is essentially sociological, which means I ask under what
conditions would the rule of law be promoted or diminished and by whom? In this
respect, I look to the legal profession, courts, and legal academy as key players; they
are crucial to the design of the legal system and its implementation. The relationship of
the legal profession to the state or market can signify to what extent lawyers might be
viewed as radical or conservative in their approach to legality and juridical questions.7
For example, Weber8 saw the English legal profession as a craft-based profession with
relatively little input from the academy. The development of the common law therefore
depended on the creativity of practitioners who became used to devising solutions to
problems as they arose. In the absence of a legal code, lawyers innovated in law through
an ad hoc process. On the mainland continent, and in many other countries, the civil
code system depended on commentaries by academics that kept the law in tune with its
primary principles. This resulted in a different but less innovative law making. Thus, for
example, whereas in Germany pfandbriefe9 are creatures of statute, in the UK they were
created by contract using common law principles.10 Therefore, the alliance between the
state, academy, and legal profession is much stronger in code systems whereas common
law jurisdictions are typically associated with the market and so depend far more on
practitioners.
THE CHANGING LEGAL WORLD
Although the middle of the twentieth century is a key point for the start of the modern
legal world, developments were in hand long before. The modern corporation came into
being in the late nineteenth century; the first glimmerings of global legal practice were
present then also as English City solicitors travelled the globe for their clients; and we
see the birth of the modern large law firm in the US in the early twentieth century.11 But
7
Rueschemeyer, Dietrich (1973) Lawyers and Their Society: A Comparative Study of the Legal
Profession in Germany and the United States. Cambridge: Harvard University Press.
8
Weber, Max (1978) Economy and Society.
9
Pfandbriefe are a type of property bond that are considered a safe investment for banks
unlike some other structured financial products. The relative freedom of the English common law
provided the opportunities for banks and lawyers to work together to create a financial instrument
from first principles. Its subsequent success in the markets dismayed financial institutions in
Germany because they had believed it was in instrument of legislation and so the British banks
escaped that burdensome process by sleight of hand.
10
Flood, John (2007) ‘Lawyers as Sanctifiers of Value Creation’ 14 Indiana Journal of Global
Legal Studies 35–66.
11
Galanter, Marc and Roberts, Simon (2009) ‘From Kinship to Magic Circle: The London
Commercial Law Firm in the Twentieth Century’ 15 International Journal of the Legal Profession
143–78.
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The rule of law and legal education 291
it is the mid-century point when globalisation took hold and shook up the established
order.
The twin evolutions of the transnational order and the rise of the welfare state fol-
lowing World War II created new types of lawyer. One was the international commercial
lawyer facilitating the movement of US and English capital around the world.12
The second was the legal aid lawyer supported through state funding to provide
legal services for poor people, a demand-led legal market run by lawyers for lawyers,
unlike the National Health Service which was state-owned13 and run.14 The former
opened up new ways of doing business for corporations that could afford expensive
counsel who could create new systems of private ordering that ran parallel to state
concerns. This move is evident in the increase in the use and spread of international
arbitration. While in the latter, the legal aid lawyer, access to law was now available
to many who were closed out before. As state benefits became a form of ‘right’ or
property15 access to justice to defend rights in housing and employment were no longer
marginalised.
The changing world of legal welfare took lawyers into more complex relationships
which pushed them to new limits. Lawyers were cutting their professional teeth on legal
aid work as judicial review also became more prevalent and so found themselves both
working for and against the state. After joining the European Community, EC law added
a further new dimension to standard jurisprudence. The rule of law was being stretched
to accommodate new rights and values. In the corporate world multinational companies
were reconfiguring their relationships to the state in terms of labour practices, tax regimes,
the import and export of capital. Although states were boosting certain rights in labour
and discrimination, the freedom of capital meant there were strict boundaries on these
new rights. Corporations could step away by shifting factories and services elsewhere. To
expand exports and increase market domination the state encouraged liberalisation of
regimes by enabling of the construction of private orders of governance through contract
and other agreements. International organisations like the World Bank fostered these
activities by providing funding and eventually establishing dispute resolution systems
such as the International Centre for the Settlement of Investment Disputes (ICSID).16
The complexity of international trade was too demanding on governments’ legislative
capabilities so they permitted, complicitly, more and more private ordering.
With the emergence of the neo-liberal state orthodoxy in the second half of the twen-
tieth century the rule of law became the bedrock for the promotion and advancement of
12
Flood, John (1996) ‘Megalawyering in the Global Order: The Cultural, Social and Economic
Transformation of Global Legal Practice’ 3 International Journal of the Legal Profession 169–214.
13
Goriely, Tamara (1996) ‘Law for the Poor: The Relationship between Advice Agencies and
Solicitors in the Development of Poverty Law’ 3 International Journal of the Legal Profession
215–48.
14
Beveridge did not include legal aid in his cures for the five giant evils of squalor, ignorance,
want, idleness, and disease. See Brian Abel-Smith (1992) ‘The Beveridge Report: Its Origins and
Outcomes’ 45 International Social Security Review 5–16.
15
Reich, Charles (1964) ‘The New Property’ 73 Yale Law Journal 733–87.
16
Ginsburg, Tom (2006) ‘International Substitutes for Domestic Institutions: Bilateral
Investment Treaties and Governance’ 25 International Review of Law and Economics 107–23.
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the Washington consensus.17 International governmental organisations became active in

developing rule of law around the world.18 The World Bank and foundations like the Ford
Foundation invested large sums in training judges and lawyers, developing court systems,
and writing the necessary legislation to protect property interests.19 During the Great
Financial Crisis, the International Monetary Fund included revisions and reformations
of legal systems and legal professions in its memoranda of understanding with debtor
countries. Any deficiencies in court systems or free competition among lawyers were seen
as barriers to economic recovery.
In summary: beginning in the nineteenth and fostered in the twentieth century the role
and growth of law in the world has been both intensive and extensive: new rights in welfare
have been established, and the international legal order now functions in both the private
and public spheres. The world is, in many respects, juridified.20
THE CHANGING LEGAL PROFESSION
In the early part of the twenty-first century the English legal profession led the way in
designing new regulatory frameworks that have increased competition within a previ-
ously monopolistic institution.21 The legal profession was traditionally formed of two
branches: solicitors and barristers, with a variety of alt-lawyer groups who could do
limited types of law. The Legal Services Act 2007 introduced pluralism into legal practice
by introducing increasing amounts of external regulation and new forms of organisation.
Alternative Business Structures permitted outside investment in legal practice as well
enabling non-lawyers to own legal services providers. The Act formalised the regulatory
structures of other types of lawyer, including notaries, legal executives, conveyancers,
costs lawyers, and patent attorneys. A more recent group to join the regulatory mix is
accountants.22
The Legal Services Act 2007 placed a number of interests on an equal footing. The
consumer interest was put alongside the public interest and the rule of law as co-equal
regulatory objectives. In part, the Act was a response to the rise of consumerism and the
17
Ostry, Jonathan, Loungani, Prakash and Furceri, Davide (2016) ‘Neoliberalism: Oversold?’
53 Finance & Development <http://www.imf.org/external/pubs/ft/fandd/2016/06/ostry.htm>. Last
accessed 25 May 2016.
18
May, Christopher (2014) The Rule of Law: The Common Sense of Global Politics.
Cheltenham: Edward Elgar. xxxi–xxxvii.
19
Carothers, Thomas (ed.) (2006) Promoting the Rule of Law Abroad: In Search of Knowledge.
Washington, DC: Carnegie.
20
Blichner, Lars and Molander, Anders (2008) ‘Mapping Juridification’ 14 European Law
Journal 36–54.
21
Flood, John (2012) ‘Will There Be Fallout from Clementi? The Repercussions for the Legal
Profession after the Legal Services Act 2007’ 2012 Michigan State Law Review 537–65.
22
The Competition and Markets Authority is conducting a study into the legal services
market and notes there is a large segment of the market that is unregulated and does not require
authorised lawyers. See ‘Market Study into the Supply of Legal Services in England and Wales’
Competition and Markets Authority (2016) at 10 <https://assets.digital.cabinetoffice.gov.uk/
media/56962803e5274a117500000f/Legal_services_market_study_statement_of_scope.pdf>. Last
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failure of, mostly, solicitors to police themselves and be professional. The professional
associations, especially the Law Society, were found lacking in their internal policing of
malfeasance, which was construed as a lack of professional oversight. According to Boon
and Whyte23 complaints against solicitors were running at 17,000 a year between 2000 and
2005. Most of the complaints stemmed from classic information asymmetries where con-
sumers were not able to determine what lawyers were actually doing for them or whether
they were following their fiduciary duties. Boon and Whyte24 use the miners’ fees scandal
as a case study emblematic of how lawyers appeared to have abandoned their public roles
for their private gain. External regulation was introduced with a new regulator whose task
it was to ensure no regulatory arbitrage occurred among the individual regulators. To say
the equal promotion of different interests has created confusion in the minds of lawyers
would be to understate the difficulty. Most lawyers, primarily solicitors and barristers, are
professionally socialised to think in terms of the ‘public interest’ and ‘rule of law’, but not
the consumer interest, which is an alien concept to most. To an extent this is reflected in
the restricted, or reserved, activities which only regulated lawyers can do, such as probate,
transfers of land, rights of audience and conducting litigation.25 Furthermore, none of
these terms are defined in the Act, their meanings are assumed.
These distinctions are further compounded when we examine the internal structures of
the legal profession more closely. Taking the Heinz and Laumann26 hemispheres model of
the legal profession as an entry point, the rule of law bifurcates depending on what type
of client the lawyer serves. Lawyers who work for individual clients often find themselves
dealing with clients who are not repeat players and are inexperienced in the ways of the
legal system. Such clients rely on the expertise of lawyers to guide them through the
rigours of the legal system. The rule of law here can take multiple guises—procedural
and substantive. For example, proceedings against an immigrant deemed illegal by the
authorities easily raises questions and issues of the limits of administrative discretion
as well as fundamental problems of rights to abode and protection from illegitimate
detention in home states. This is very much the idea of the lawyer as champion.
In the other hemisphere, the corporate, clients are experienced and are repeat players.
Corporations have their own counsel in house as well as rosters of external law firms
working for them. The rule of law, as a concept, rarely arises in this world. This is
law as business and with a greater reliance on private rather than state ordering; the
corporate world, to a large extent, is able to create its own rule of law. Emblematic of
this hemisphere is the large law firm, often global in reach, interpreting the rule of law
according to place and context. It could mean dealing with Chinese rules on the export
of steel which are in tension with EU rules on anti-competitive dumping, and whether
23
Boon, Andrew and Whyte, Avis (2015) ‘Icarus Falls: The Coal Health Scandal’ 15 Legal
Ethics 277–313.
24
Ibid.
25
Mayson, Stephen (2010) ‘The Regulation Of Legal Services: Reserved Legal Activities—
History And Rationale: Strategic Discussion Paper’ <https://stephenmayson.files.wordpress.com
/2013/08/mayson-marley-2010- reserved-legal-activities-history-and-rationale.pdf>. Last accessed
25 May 2016.
26
Heinz, John and Laumann, Edward (1982) Chicago Lawyers: The Social Structure of the Bar.
New York: Russell Sage Foundation.
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this would need resolution by the World Trade Organization. Or it might mean arranging
an international joint venture with financing from institutions in two or three different
countries making use of tax efficient regimes. This is the idea of the lawyer as technocrat
and broker.27
The rule of law is invoked by lawyers at moments of crisis such as when limitations
on legal aid and restrictions on access to judicial review or altering rules such as the
Bar’s cab rank rule are being considered. These crises are characterised as attacks on the
professionalism of the legal profession, undermining its central obligations. This occurs
because the legal profession presents itself as independent of the state, and as the key
institution that protects people from the autocratic state. However, the legal profession
is deeply intertwined with the state: barristers who become Queen’s Counsel receive their
letters patent from the government; statutes such as the Solicitors Act 1974 grant rights
to solicitors distinct from other occupations. Each needs the other to exist.
Yet challenges to the traditional idea of lawyers and lawyering are evolving. The use of
technology is enabling consumers to unpick the complexities of law and resolve matters
themselves. For example, one website offers solutions to traffic problems for free using
algorithms to interrogate and analyse the facts.28 IBM’s Watson supercomputer now
researches and analyses bankruptcy law using natural language principles. Technology
appears to have no concept of the rule of law except as algorithm. Yet with even newer
technologies emerging such as blockchain, the advantage of technology in law might be
to democratise its practice and applications in society.
The legal profession is therefore in a state of flux and uncertainty. On the one hand,
the state is becoming more aggressive in interfering with its governance and limiting its
monopolies, and on the other new modes of practice involving technology and alternative
structures are changing the ways lawyers practice law and organise themselves. Whether
this can be interpreted as a moment of crisis is debatable but the traditional certainties
lawyers have enjoyed, and the rents accruing to them, are becoming past memories.
This also has spill over effects on the value systems of lawyers. While ethical behaviour
is still inculcated into lawyers, writing on ethics often treats lawyers as if they are solo
practitioners, autonomous subjects. However, most lawyers are employed in organisations
where systems of compliance are the norm. It will be interesting to see how compliance
can incorporate the values of the rule of law, if it can. Conversely, some might argue that
the value of business is paramount and that the law should be perceived as a business or
industry rather than a profession.
The legal press (The Lawyer, Legal Week, American Lawyer) promotes lawyers and law
firms as elite money-making organisations through devices and measures like the PEP
(profits per equity partner) which become scorecards for success within and with-out
the profession. Talk of cross-border law firm mergers or which law firms handle the
most M&A work reinforce the big law firm and its lawyers as a type of ‘master of the
27
Chua, Lee Ming (2015) ‘Challenges Facing Business and Finance Institutions: The Rule
of Law Seen Through the Eyes of Business’ in Jowell, Jeffrey, Thomas, J. Christopher and Smit,
Jan van Zyl (eds) Rule of Law Symposium 2014: The Importance of the Rule of Law in Promoting
Development. Singapore: Academy Publishing.
28
See http://www.roadtrafficrepresentation.com, and http://www.legalzoom.com. Last accessed
25 May 2016.
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universe’.29 The heroic dimensions of lawyers’ practice occasionally bloom in the legal
press, but are largely relegated to literature or television, where Rumpole of the Bailey or
Kavanagh QC delivers salvation to the downtrodden in the teeth of a certain prosecution
case. Here is an image of the rule of law as a struggle, yet a righteous one.
What emerges from my discussion above is a profession that no longer can be perceived
as unitary but is fragmenting. Even Lord Bingham’s simple exhortations on the rule of
law really only apply to a minority of lawyers though all should be concerned about them.
But where would they learn these values? The Legal Services Act 2007 has hastened the
process such that even the hemisphere model is too narrow to reflect the different types
of lawyer and legal organisation in existence now. The result is that no single entity is able
to articulate the central standards of a fragmenting profession. However, legal education
is delivered as though the legal profession remained a unitary body.
HOW LEGAL EDUCATION OPERATES
How has legal education accommodated these challenges? In large part, I would argue
that it has failed to do so. Legal education hews to tradition rather than innovation, except
in very few circumstances. In the UK, US, and Australia, for example, legal education is
heavily regulated both in form and substance. Agreements with legal regulators determine,
among other things, how long a law degree must be, and what its core should be. And if the
academy deviates, its graduates would find themselves excluded from the profession. One
might think there are rational, well-researched reasons for the six fundamental subjects
in an English qualifying law degree30 or the Priestly Eleven in the Australian version, but
there are few.31
The legal profession has an uneasy relationship with the academy. As Maharg points
out in the Legal Education and Training Review, the profession, though educational
amateurs, had the power of veto over the curriculum.32 Although from the time of the
Ormerod Report in the 1970s on legal education, the academy has gained considerable
control over the curriculum, its form is still the remit of the professional regulators.33
The expansion of the curriculum has brought with it courses (or modules) on EU law,
international law, ethics, and the philosophy of law. While in the US and Australia ethics
is a mandatory component of the law degree, it is still being argued over in the UK.
The core courses are meant to cover the essential ground of what law is and also what
knowledge is necessary to be a lawyer. They are instrumental in nature referring both to
substance and procedure. For example, the Australian Priestly Eleven include civil and
criminal procedure along with evidence. On the substantive side are contracts, property,
29
Tom Wolfe (1987) Bonfire of the Vanities. New York: Farrar, Strauss and Giroux.
30
SRA-BSB (2014) Academic Stage Handbook. <file:///Users/johnflood/Documents/Academic
%20Stage%20Handbook%20v%201%204.pdf>. Last accessed 25 May 2016.
31
Maharg, Paul (2013) ‘Literature Review 2. Legal education, professional standards and regu-
lation’ <http://letr.org.uk/wp-content/uploads/LR-chapter-2.pdf>. Last accessed 25 May 2016.
32
Ibid
33
SRA-BSB (2014) Academic Stage Handbook. <file:///Users/johnflood/Documents/Academic
%20Stage%20Handbook%20v%201%204.pdf>. Last accessed 25 May 2016.
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crime, and torts. There is not much variation in the range of courses comprising a law
degree around the world. In a focused way, these courses capture the essence of the rule of
law: certainty in business; secure property relations; protection against harm, accidental
or intentional; and a dispute resolution system that will be fair and equitable. Even in
autocratic and former communist countries, their constitutions express these values
however poorly enforced.
Regarding the analysing of educational philosophies, I take the examples of legal
education in the US and the UK as they represent two distinct, but not exclusively,
pedagogical paths. They have temporal differences: undergraduate versus postgraduate;
substantive differences (eligibility to sit the bar examination on law school graduation or
not); potential range of courses within the degree (extensive in US schools but less so in
the UK). One reason I refer to this distinction is that legal education is radically changing
in many countries (e.g. India, Australia, Korea, and Japan) and the changes tend to follow
either the American or English course; thus, their global impact is important. Elsewhere
I have drawn a distinction between these two along the lines of science and the humani-
ties.34 For American legal education, there was a significant rupture in teaching when
Christopher Columbus Langdell became dean of Harvard Law School 1870. He intro-
duced the ideas of the science laboratory into the law classroom. Students ‘experimented’
by answering increasingly complex questions set by the professor based on case extracts
carefully selected for cases and materials books that provided the material. Moreover, US
higher education was influenced by the graduate education model of Germany which
introduced serious training as a precursor to writing a dissertation.35 Gordon36 notes
that in New York City in the late nineteenth and early twentieth centuries lawyers viewed
themselves as developing a scientific approach to law. The Socratic case method became
the standard educational model for legal education in the US and still persists today.37
The law school remains the only route into legal practice and in US higher education is
one of a set of professional schools including medicine, business, and journalism among
others.
English legal education has been more haphazard in its development. Before the
nineteenth century English common law was little taught in the academy. Canon law,
however, had been taught for hundreds of years, but it was based on civil law precepts
not common law. Common law was a craft-based system learned through means of
apprenticeships with lawyers, articles, or pupillage. The Inns of Court undertook some
education but it had none of the rigour expected in the classroom. The form of legal
34
See; Flood, John (2011) ‘Legal Education in the Global Context: Challenges from
Globalization, Technology and Changes in Government Regulation’ Report for the Legal Services
Board <http://www.legalservicesboard.org.uk/news_publications/latest_news/pdf/lsb_legal_educa
tion_report_flood.pdf>. Last accessed 25 May 2016; Flood, John (2015) ‘Global Challenges for
Legal Education: Competing for the World’s Law Students’ 24 Nottingham Law Journal 79–93.
35
DeMillo, Richard (2011) Abelard to Apple: The Fate of American Colleges and Universities.
Cambridge, MA: MIT Press.
36
Gordon, Robert (1984) ‘‘The Ideal and the Actual in the Law’: Fantasies and Practices of
New York City Lawyers, 1880–1910’ in Gawalt, Gerald (ed.) The New High Priests: Lawyers in
Post-Civil War America. Westport, CT: Greenwood Press.
37
Stevens, Robert (1983) Law School: Legal Education in America from the 1850s to the 1980s.
Chapel Hill: University of North Carolina Press.
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education that emerged in places like University College London and Oxford was
expository in form and could not claim academic respectability until into the twentieth
century. There was no attempt to impose a particular pedagogical style as Langdell had
at Harvard. Law was subsumed into the arts, classics, and humanities traditions of the
universities. It was only in the twentieth century that newer law schools like Warwick
introduced innovative approaches such as ‘law in context’, and the use of legal clinics
appeared.38
Law until the latter part of the twentieth century was not three things in particular: it
was not interdisciplinary; it was not global; and it took no account of technology apart
from the printed page. The predominant practice of law was to be doctrinal or ‘black
letter’. There was no legal realism in English law, as in the US.39 The only disciplines
law seemed to connect with were philosophy (mostly Oxford logical positivism40) and
history. It had no truck with sociology, economics, or psychology.41 Connections with
other disciplines started occurring as law became a more integrated part of the university
and the law and modernisation movements emerged. Law began to acquire empirical
skills and examine itself as well as the world in which it functioned.42 With the formation
of law and society associations around the world, scholars across the disciplines took
interest in each other’s work and even collaborated. Topics like human rights and access
to justice were studied and law’s relation to power structures was scrutinised in ways
that made lawyers uncomfortable.43 In the US, given its scientific bias in law, the law and
economics movement had the strongest presence, and probably represents the ideological
countermovement to law and sociology elsewhere.44 Law and economics is often perceived
as promoting the ideals of the right, the free market, and neo-liberal values. Contrasting
ideals of the rule of law have come out of these different approaches, one a broader
conception embracing human rights and the other much narrower focusing on the proper
performance of law to maintain rights and markets. This distinction persists across
globalised legal education.
Although England exported many lawyers to the colonies and anthropologists were
interested in dispute resolution among groups, law remained profoundly parochial. As late
as 1980 legal magazines, e.g. International Financial Law Review, were asking the question
what is an international lawyer? Public international law had a bigger profile through the
rise of international institutions, but private international law was lower key, even though
38
Twining, William (1994) Blackstone’s Tower: The English Law School. London: Sweet &
Maxwell.
39
Schlegel, John Henry (1995) American Legal Realism and Empirical Social Science. Chapel
Hill: U of North Carolina Press.
40
Hart, H.L.A., The Concept of Law (3rd ed.). Oxford: Oxford University Press.
41
Anthropology, however, was connected to law through the work done for administrations in
other parts of the world. See Peter Pels and Oscar Salemink (eds.) Essays on the Practical History
of Anthropology. Ann Arbor, MI: University of Michigan Press.
42
Parker, Christine and Goldsmith, Andrew (1998) ‘‘Failed Sociologists’ in the Market Place:
Law Schools in Australia’ 25 Journal of Law and Society 33–50.
43
Santos, Boaventura de Sousa (1995) Toward a New Common Sense: Law, Science and Politics
in the Paradigmatic Transition. London: Routledge.
44
Parisi, Francesco and Rowley, Charles (eds.) The Origins of Law and Economics: Essays by
the Founding Fathers. Cheltenham: Edward Elgar.
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concepts such as lex mercatoria had been in existence for many years.45 Business already
possessed its own dispute forums, which were private and user friendly. Through the
second half of the twentieth century new institutions developed to engage with the private
aspect of international law. This form of ‘global law’ had its locus in the large law firm,
which embodied neo-liberal values as well as, partially, the concept of professionalism.
The rise of the international governance and rule-making apparatus of the post-World
War II period in conjunction with the globalisation of business created the potential for
‘public-private partnerships’ between law firms and the institutions. Global law firms who
were in the vanguard of international business and the carriers of professional and legal
values, for example, would carry out deals accepted by the World Bank. Both would help
develop tax and investment laws for emerging markets, which redounded to the benefit of
international capital.46
The growing demands of private international law and globalisation had differential
effects on legal education. The global legal capitals of New York and London were attrac-
tive beacons for law graduates offering challenging work along with lucrative salaries.
England and the US also offered a range of graduate courses at masters’ level. These could
be specifically tailored to commercial practice and the presence of large global law firms
provided postgraduate opportunities (internships and clerkships) for overseas students.
Civil law countries took longer to capitalise on this graduate market, in part because they
did not offer courses in English and they lacked the infrastructure of global law firms.47
However, there have been training initiatives on the part of various legal bodies such as the
American Bar Association, the English Law Society, and the International Law Institute,
all of which work to instil the ideals of the rule of law in overseas lawyers who might not
receive any such training in their own countries.48
Legal education came to reflect these divisions in practice. Areas including housing
law, human rights, migration, welfare law and criminal law encapsulated the idea of
the rule of law as a crucial signifier. This is in line with May’s conception of the thick
rule of law.49 Transactional law seemed to refer to the thinnest conception of the rule
of law—less a philosophical ideal and more an instrumental business one—where the
question is, are the rules being construed and followed properly?50 Two forces were at
45
Maniruzzaman, Abdul (1999) ‘The Lex Mercatoria and International Contracts: A
Challenge for International Commercial Arbitration’ 14 American University International Law
Review 657–734.
46
Picciotto, Sol (1995) International Business Taxation. London: Weidenfeld and Nicolson.
47
Silver, Carole (2012) ‘States Side Story: ‘I like to be in America’: Career Paths of International
LLM Students’ 80 Fordham Law Review 2383–440.
48
See the International Law Institutes training programs that receive lawyers from such
countries as Nigeria, China, Mexico, Kazakhstan, Saudi Arabia, and Mongolia. The ILI’s motto
is ‘Fostering prosperity through the rule of law’. See http://www.ili.org/about.html. Last accessed
2 September 2016.
49
See: May, Christopher (2010) ‘The Rule of Law: What Is It and Why Is It ‘Constantly on
People’s Lips’ Political Studies Review <doi: 10.1111/j.1478-9302.2010.00222.x>. Last accessed
25 May 2016; May, Christopher (2014) The Rule of Law: The Common Sense of Global Politics.
Cheltenham: Edward Elgar.
50
French, Robert (2011) ‘Legal Education in Australia – A Never Ending Story’ <http://www.
hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj04july11.pdf>. Last acc
essed 25 May 2016.
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work here: one was governmental dismantling of the welfare state since the Thatcher
era which pushed against legal aid and associated practice; the other was the growing
attraction to law students of practice in large law firms, especially with high salaries
on offer. The distinction received reinforcement when the big City law firms set up
their own bespoke Legal Practice Certificate courses with the University of Law and
BPP, private educational providers. The ultimate effect is that these forces lead to the
financialisation of legal education and I address the consequences of this in the next
section.
LEGAL EDUCATION’S CHALLENGES

Legal education’s challenges are higher education’s problems as well, although some
are peculiar to law. French51 makes the point how poorly legal education is resourced
within universities compared to other subjects. This is beginning to change as technology
becomes more relevant to law but progress is slow. In the US law schools have been able
to charge above-inflation course tuition because there is a Federal system of guaranteed
loans flowing regularly into the schools. In the UK and Australia law is merely another
discipline so enjoys no advantage yet students have been drawn by the lure of City
salaries. Thus, while law cannot charge discriminatory tuition, it has been able to load its
entry requirements, augmented by government tinkering of admission allocations.52 The
results are that American law graduates have high debt levels to fund, English students
have lower but still significant debts, and Australian students are facing the prospect
of the hundred-thousand-dollar degree. The practical effects of these changes are that
‘employability’ becomes a key criterion in which the income premium attaching to a
degree is the measure degree success. Law students are subtly steered away from lower
paying ‘social justice’ jobs and towards corporate sector jobs. The financialisation of the
legal profession is matched by the marketisation and financialisation of the academy: the
supply chain is seamless.53 To ensure the move is irreversible universities are being offered
the opportunity to securitise their book of loans to fund their immediate needs, and thus
building a potential subprime student loan crisis in future years.54 Notice also that the rule
of law is little more than an abstract concern with a small role to play in the transactional
world of big law.
In the US in particular the effects of the 2008 Great Financial Crisis (GFC) rever-
berated through to the academy. Law schools’ application rates declined as students
perceived jobs as becoming increasingly remote while debt burdens were unambiguously
certain. In the UK too the GFC meant law firms laid off many lawyers increasing the risk
of insecurity in what had once been a stable profession. Pistone and Horn,55 adopting
51
Ibid.
52
Collini, Stefan (2013) ‘Sold Out’ 35 London Review of Books 3–12, 24 October.
53
Thornton, Margaret (2012) ‘The New Knowledge Economy and the Transformation of the
Law Discipline’ 19 International Journal of the Legal Profession 265–81.
54
Collini (n 52).
55
Pistone, Michele and Horn, Michael (2016) ‘Disrupting Law School: How Disruptive
Innovation Will Revolutionize the Legal World’ Clayton Christensen Institute for Disruptive
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Christensen’s ideas of disruptive innovation,56 argue that conventional law schools

are threatened by educational and training providers that will cater for sectors of the
legal market that do not need fully trained lawyers. Because legal services in general
are being disrupted by being unbundled and subject to technological subversion, the
full suite of legal skills that law school provides are redundant. That law schools are
failing their students has been asserted in a number of quarters. Paul Campos in his
blog, Inside the Law School Scam,57 detailed the ways he saw law professors swindling
their students and how law schools had become institutions selling credentials into a
declining market. While some elite law schools’ degrees held value, most did not. Brian
Tamanaha’s Failing Law Schools58 argued that law schools were deceiving students by
over-promising lucrative careers upon graduation and relying on the American Bar
Association’s accreditation standards to reinforce their monopolistic positions. Further
arguing that reforming ABA accreditation standards would permit different styles of
law school to emerge, Tamanaha in effect sees law continuing as it has—a sophisticated
craft honed in law school. Campbell,59 again adopting Christensen’s analysis,60 offers a
revolution brought about by online education such as Coursera or Udacity with micro-
qualifications exemplified by Mozilla Open Badges61 Campbell and Christensen see an
outdated model of education responding to outdated demands for the production of
expertise within the legal profession.
Many of these proposed changes remain hypothetical, depending on regulations in spe-
cific jurisdictions. The more restrictive is the regulation, the less change in practice among
lawyers but the more development in technological disruption. Thus, for example, in the
US with its tight regulation, LegalZoom and a host of other legal technology companies
are flourishing. Some universities, Stanford in particular, have created programmes like
CodeX62 and D.School63 working out how to change the user experience of law for con-
sumers. Susskind64 believes, probably mistakenly, that technology will diminish the value
of professions and their uniqueness: legal work will be decomposed into repetitive tasks
done by computer or paralegal and only more bespoke work requiring expert judgment.
The new legal avatars in Susskind’s world would be ROSS on IBM Watson and Google’s
Innovation <http://www.christenseninstitute.org/wp-content/uploads/2016/03/Disrupting-law-schoo
l.pdf>. Last accessed 25 May 2016.
56
Christensen, C., Horn, M. and Johnson, C. (2008) Disrupting Class: How Disruptive
Innovation Will Change the Way the World Learns. New York. McGraw Hill.
57
See http://insidethelawschoolscam.blogspot.com/. Last accessed 25 May 2016.
58
Tamanaha, Brian (2012) Failing Law Schools. Chicago: University of Chicago Press.
59
Campbell, Ray (2013) ‘Law School Disruption’ http://ssrn.com/abstract=2169859. Last
60
Christensen, Horn and Johnson (n 56).
61
See http://openbadges.org/. Last accessed 25 May 2016.
62
CodeX (https://law.stanford.edu/codex-the-stanford-center-for-legal-informatics/). CodeX
focuses on computational law and is a collaboration between Stanford Law School and the Dept of
Computer Science. Last accessed 25 May 2016.
63
D.School (http://dschool.stanford.edu/law-by-design/). Law by Design aims to create guides
to assist non-lawyers navigate their way around the legal system. For particular examples see
Margaret Hagan at http://www.margarethagan.com/. Last accessed 25 May 2016.
64
Susskind, Richard (2010) The End of Lawyers? Rethinking the Nature of Legal Services.
Oxford: Oxford University Press.
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DeepMind.65 This rather dystopian view is one that has gained currency as robots have
moved into the workplace and taken over the workforce.
The fear of artificial intelligence is supposedly pushing us towards a post-human future
where we become subservient to AI and robots. Stephen Hawking, Elon Musk and Bill
Gates say there is an existential risk that intelligent machines will take over the world.
Fearmongering aside, Remus and Levy66 argue the distinction between technology and
professions is drawn too starkly and should be seen in terms of complementarity:
Those things that computers cannot provide, notwithstanding massive computing power—
counselling, a robust understanding of law, an appreciation of client interests, the provision of
reasons, and interaction with the legal system—are core professional values. They are also central
to the rule of law, illustrating a fundamental and necessary connection between the two.
There is a sense that the rise of technology as AI or robots decreases our freedom and
diminishes our consciousness. Yet Jacques Ellul67 says:
We should by no means conclude that man is a mechanised and conditioned, that he is a robot. . .
Man is perfectly capable of choosing . . . but always within the technological framework and
toward the progression of technology.68
If law schools marry themselves to the dystopian view of the legal profession and
practice and their increasingly limited future, there is a danger they will choose the path
of least resistance and move towards a form of schooling that looks more like training
than education. The existential aspects of legal education will disappear—as they are in
many places—to be replaced by instrumental approaches to education that see it as a
preliminary stage to entering the labour market as a subordinate quasi-professional rather
than a critical member of a liberal profession. The gradual emergence of the JD degree
in place of the LLB degree in Australia is a manifestation of this transition:69 it has a
65
ROSS (http://www.rossintelligence.com/) is built on IBM Watson and uses natural language
to do research on bankruptcy law. It interrogates the entire corpus of law and builds expertise
through repetition. Google DeepMind (https://www.deepmind.com/), not yet used in law, won a
series of games of Go against a human contestant. Whereas chess is played on an 8x8 board, Go is
played on a 19x19 board and was thought resistant to computerisation. DeepMind is now working
with the NHS to improve doctors’ diagnostic skills (https://www.deepmind.com/health). See also
the development of smart contracts on blockchain as a way of automating commercial contracts:
James Eyers (2016) ‘Blockchain ‘Smart Contracts’ to Disrupt Lawyers’ Financial Review <http://
www.afr.com/technology/blockchain-smart-contracts-to-disrupt-lawyers-20160529-gp6f5e>. Last
66
Remus, Dana and Levy, Frank (2015) ‘Can Robots Be Lawyers? Computers, Lawyers, and
the Practice of Law <http://ssrn.com/abstract=2701092>. Last accessed 25 May 2016.
67
Ellul, Jacques (1980) The Technological System. New York: Continuum.p.325.
68
And if this all should appear fanciful take note that an AI professor at Georgia Tech had
his students obtain information about coursework and projects from an AI agent that the students
thought was human. See David Hill (2016) ‘AI Teaching Assistant Helped Students Online—
and No One Knew the Difference’, Singularity Hub <http://singularityhub.com/2016/05/11/
ai-teaching-assistant-helped-students-online-and-no-one-knew-the-difference/>. Last accessed 25
May 2016.
69
Thornton, Margaret (2012) ‘The New Knowledge Economy and the Transformation of the
Law Discipline’ 19 International Journal of the Legal Profession 265–81.
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practice as opposed to theoretical orientation and it is directed at those that wish to work
in big law firms.70
If my view appears too dystopian, I temper it this way. Technology can be interpreted
as a liberating force by freeing the individual from the mundane and repetitive tasks that
bedevil a new lawyer’s career. Christensen’s approach to innovation has two sides: sustain-
ing and disruptive. The disruption is the inevitable effect of a cheaper variant entering the
market and whittling away the future prospects of the incumbent. It is inescapable, but
some innovation is sustaining and so has positive effects and can foster creativity. We see
this in the burgeoning ‘legal hacking’ community that is springing up around the world.
Groups of legal hackers congregate to solve particular problems around access to law by
creating technological solutions.71 But as I have indicated above the profession has not
taken this direction regardless of the technological effect, rather it is determined to extract
surplus from its workers72 and technology has become another means of so doing. Thus,
except for those who operate in the legal hacking field in a benign way,73 technology will
be adopted in law firms fundamentally to make profits for partners rather than increase
the benefits of law.
CONCLUSION
The regulatory frameworks in most jurisdictions have protected legal professions and by
extension the means of producing lawyers. Changing legal markets are placing this model
under stress with arguments that too many law graduates are being produced or that they
are not being ‘market ready’. The processes of legal education are open to disruption and
the parts that will suffer are those that focus on the liberal humanities and access to justice.
70
In the UK the increased use of the Graduate Diploma in Law (Common Professional
Examination) is a functional equivalent where a graduate from another discipline takes an intensive
year of law classes to be ready for the Legal Practice Course. Big law firms find such graduates
attractive to hire because they have multiple skills.
71
For example, this quotation from a legal hackers’ website exemplifies their spirit:
Legal Hackers is a global movement of lawyers, policymakers, technologists, and academics who
explore and develop creative solutions to some of the most pressing issues at the intersection of
law and technology. Through local meetups, hackathons, and workshops, Legal Hackers spot
issues and opportunities where technology can improve and inform the practice of law and where
law, legal practice, and policy can adapt to rapidly changing technology.
https://legalhackers.org/. Last accessed 2 September 2016.
72
Kay, Fiona and Hagan, John (2005) ‘Social Mobility and Hierarchical Structure in Canadian
Law Practice’ in Felstiner, William (ed.) Reorganisation and Resistance: Legal Professions Confront
a Changing World. Oxford: Hart Publishing.
73
Another way of looking at this is that technology provides a degree of self-help to individuals
so that they can achieve some form of justice without the intervention of lawyers. For example,
Josh Browder’s donotpay.co.uk website offers free legal information and the writing of letters to
help with parking appeals. Browder has now extended his chatbot to help victims of the Equifax
credit agency hacking in 2017 (Liao, Shannon (2017) ‘Chatbot lets you sue Equifax for up to
$25,000 without a lawyer’ The Verge <https://www.theverge.com/2017/9/11/16290730/equifax-
chatbots-ai-joshua-browder-security-breach>. Last accessed 26 September 2017).
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Without state aid it is hard to maintain law practices in welfare law or criminal law. The
corporate law sector is becoming the key consumer of law graduates, but this will be in
two distinct sectors: one will be the corporate law firms and in-house legal departments of
corporations; the other will be the growing number of ancillary businesses supporting or
doing law such as legal process outsourcers and tech companies like Divorce-Online.74 The
market orientation of legal suppliers sees legal services in terms of ‘business-to-business’
and ‘business-to-consumer’. The idea of clients with problems needing counsel and legal
solutions is lost and instead they are regarded as business opportunities or emerging profit
centres. With these kinds of trends appearing, legal education’s role in promoting the rule
of law may shrink as it conforms to the requirements of the legal services market.
To make sense of these developments, it is useful to return to first principles regarding
professions. Professions are particular types of occupation with specific modes of control.
In the classic model, the professional controls the relationships and determines the out-
come.75 But that control is not abused because the professional has absorbed the ethical
codes of their profession, and is subject to the authority of peers. Clients have confidence
in purchasing a ‘distress good’ as they know they will not be exploited. Professions are
thus different from expert occupations76 and therefore the values of professions ought
to be transmitted through educational processes along with respect for the rule of law
and access to justice. However, there is a fundamental shift taking place from profession
to expert occupation77 in which the law schools are complicit. The world of the large
global law firm I have described above is one of business, expertise and the bottom line;
it articulates the values of the rule of law but essentially in the thin sense, nothing more.
This is the prevailing model and its beliefs are permeating the entire profession, while the
academic discipline itself is being transformed and is committed to this new regime.78 Is
there a way out of this? Frankly, it is difficult to see. Law schools need to remain attractive
to students while charging high tuition fees, but cannot guarantee employment. The forces
of disruption will affect them profoundly and the rule of law may well suffer.
74
See http://www.divorce-online.co.uk. Last accessed 29 May 2016.
75
Johnson, Terence (1972) Professions and Power. London: Macmillan.
76
Boon, Andrew (2016) ‘The Legal Professions’ New Handbooks: Narratives, Standards, and
Values’ Legal Ethics http://dx.doi.org/10.1080/1460728x.2016.1209811. Last accessed 2 September
2016.
77
Evetts, Julia (2014) ‘The Concept of Professionalism: Professional Work, Professional
Practice and Learning’ in Billett, Stephen et al (eds.) International Handbook of Research in
Professional and Practice-Based Learning. New York: Springer.
78
Thornton (n 53).
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PART IV
CONTEXTUALISING THE
RULE OF LAW
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18. The rule of law, new constitutionalism, and
transnational legality
A. Claire Cutler*
INTRODUCTION
The global spread of the rule of law is attracting scholarly attentions in a number of
disciplines, ranging from law to political science and anthropology, both domestically
and internationally.1 In fact, a recent and insightful volume of case-studies edited by an
anthropologist and professors of business law and international law investigates indica-
tors of ‘legal governance’ that quantify and measure the rule of law in the world.2 It would
appear that the rule of law is most definitely ‘en vogue’, as observed by a reviewer of the
late law lord, Judge Bingham’s volume on the subject.3 Indeed, many words have been
written debating the nature and content of the rule of law, which is recognised generally
as an ‘essentially contested concept’. Gallie4 famously framed these as certain concepts
‘the proper use of which inevitably involves endless disputes about their proper use on the
part of their users’. However, as Waldron5 observes such contestation should not mean
hopelessness or pessimism in the ability to define a concept, but rather ‘contestation at
the core’ of a concept reflects complexity and normativity that by their very nature give
rise to disagreements: ‘Each conception is put forward as an attempt to outdo the others
in capturing an elusive sense, that we all share, a sense that somewhere in the midst of this
contestation there is an important ideal that social and political systems should aspire to.’6
* All website references were live at 23 March 2018.

1
See Chesterman S. 2008. ‘An International Rule of Law?’ 56(2) American Journal of
Comparative Law 331–61; Waldron J. 2006. ‘The Rule of International Law’, 30 Harvard Journal
of Law & Public Policy; May C. 2014. The Rule of Law as the Common Sense of Global Politics
(Edward Elgar); Zangle B. 2005 ‘Is There an Emerging Rule of International Law’? 13(1) European
Review; Merry S., Davis K. and Kingsbury B. 2015 (eds) The Quiet Power of Indicators: Measuring
Governance, Corruption, and Rule of Law (Cambridge University Press).
2
Merry et al., 2015. The indicators studied include Freedom House’s Freedom in the World
indicator, the Global Reporting Initiative’s assessment of corporate social responsibility, the
World Justice Projects measurement of the rule of law, the Doing Business index of the World
Bank/s International Financial Corporation, the World Bank’s Country Performance Institutional
Assessment and Worldwide Governance indicators, the Transparency International Corruption
(Perceptions) index and indicators used by the US Millennium Challenge Corporation in determin-
ing countries that are eligible for US aid funds.
3
Kaiser A. 2011. ‘Rule of Law’, 7 European Constitutional Law Review, 511–16.
4
Gallie W.B. ‘Essentially Contested Concepts’, Proceedings of the Aristotelean Society
(1955–56), 167.
5
Waldron J. 2002 ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’ 21(2)
Law and Philosophy 137–64.
6
Ibid.
307
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Notwithstanding such contestation, thinkers from Aristotle7 to Dicey,8 and on to

Raz9 and Bingham,10 have been able to distil fundamental elements of the rule of
law framed within the context of national constitutional orders. While, as Bingham
observes, there are frequent differences over ‘thick’ and ‘thin’ conceptions, these vari-
ous conceptions of the rule of law coalesce around some fundamental principles and
practices that we more-or-less recognise as characteristic of representative democracies.
Indeed, while these are interesting debates, my concern is not with the parameters of the
rule of law domestically. Rather this chapter is concerned with the politics of the global
rule of law, how debates about the rule of law in domestic politics are transposed into
global politics, and developing an analysis of conceptions of the global rule of law and
global constitutionalism. For these purposes, it will suffice to isolate elements of the rule
of law that many would agree are central to most understandings of the concept in the
domestic realm; the analytical and theoretical challenges in my view are to determine
the possibility of distilling similar elements in the global arena. Moreover, the nature
and effect of a putative ‘global rule of law’ is hotly contested by those who regard it
as a progressive development in the functional differentiation of global society, and by
others who challenge the darker side of its distributional consequences for local and
global societies and political economies.
This chapter contributes to this debate by showing that the globalisation of the rule
of law is producing a new form of constitutionalism, and a new rule of law, that have
little in common with the constitutionalism and rule of law of domestic societies. New
constitutional governance is evident in a growing number of areas ranging from global
economic regimes governing trade, investment, finance, and banking to those involving
human rights, the environment, and military and security relations. The chapter argues
that new constitutionalism gives rise to a specific form of legality: transnational legality.
The transnational rule of law is producing a new and different rule of law that is specific
to the global political economy under conditions of late capitalism and postmodernity.
This new transnational rule of law is distinct from public international law, which remains
tightly connected to the state and to national legal systems. Transnational legality in effect
creates two rules of law: the international rule of law rooted in state-based national legal
systems and the transnational rule of law, still connected to the state but also substantially
autonomous from national legal systems in ways that significantly alter state-society
relations. Therefore, this chapter argues that the transnational rule of law challenges
conventional understandings of the rule of law by turning the concept of the rule of law
on its head. The challenge posed by transnational legality to conventional conceptions
of the rule of law should be of concern to all who believe that law can and should be a
progressive social force in the world.
The next section addresses the analysis of the rule of law in domestic and transnational
settings, revealing a lack of symmetry and parallelism between these constitutional orders.
7
Aristotle, The Politics III. 16 (Benjamin Jowett trans. Nuvision 2004) (350 BC).
8
Dicey A.V. 1885. Lectures Introductory to the Study of the Law of the Constitution
(MacMillan 1st ed).
9
Raz Joseph. 1979. The Authority of Law: Essays on Law and Morality (Oxford: Clarendon
Press).
10
Bingham T. 2010. The Rule of Law (London: Allen Lane, Penguin Press).
M4581 - MAY_9781786432438_t.indd 308 01/08/2018 14:47

New constitutionalism and transnational legality 309
It presents the basic framework for new constitutional governance, arguing that new
constitutional governance constitutes the foundations for the global political economy
under late capitalism and postmodernity. The following section then associates new
constitutionalism with the transnationalisation of the global political economy and iden-
tifies two central vectors of power that define the contestable core of transnational legality
and the transnational rule of law. Finally, I identify openings and sources of resistance to
the transnational rule of law, to suggest that there is still hope that E.P. Thompson11 was
correct in concluding that law is an ‘unqualified human good’.
THE RULE OF LAW UNDER OLD AND NEW

CONSTITUTIONALISM
Old Constitutionalism
Traditional understandings of the rule of law in domestic constitutional orders often

begin with Dicey’s12 (1885) three aspects of the rule of law: regulating and limiting
government power; equality before the law; and the primacy of judicial proceedings. This
is regarded by many as a minimal, formal, procedural or ‘thin’ version of the rule of law.13
Judge Bingham goes further to develop a ‘thick’ version that incorporates substantive
notions of justice, including inter alia the accessibility of law; limitations on discretionary
authority; equal application of the law (subject to justifiable differentiation), good faith
in the exercise of governmental powers; adequate protection of human rights; affordable
and timely dispute resolution and; compliance with international law.14 Clearly these
elements contemplate a hierarchical constitutional order comprised by a legislature,
judiciary, as well as executive and administrative authorities that do not obtain, except in
a most fragmentary nature for international law.
Accordingly, when applied to the global arena, Simon Chesterman15 shies away from a
substantive definition articulating the view that ‘a definition that is applicable and accept-
able across cultures and political systems will necessarily be formal’, thus ‘abandoning
the additional role that the rule of law sometimes plays as a Trojan horse to import other
political goals such as democracy, human rights, and specific economic policies’ (ibid.,
360). He echoes the limits to the domestic analogy that have long haunted international
law in the classical works of John Austin16 and Hans Kelsen17 and the more contemporary
11
Thompson E.P. 1977. Whigs and Hunters: On the Origins of the Black Act (New York:
Pantheon).
12
Dicey (n 8).
13
Craig P. 1997. ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical
Framework’, (Autumn 1997) Public Law 467–87.
14
Bingham (n 10).
15
Chesterman (n 1), 342.
16
Austin J. 1832. The Province of Jurisprudence Determined (Weiderfeld & Nicolson 1954, first
published 1832).
17
Kelsen H. 1945. General Theory of Law and State. Trans Wedberg 1945. (Clark, NJ: The
Lawbook Exchange 1999).
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work of Hidemi Suganami18 and Thomas Franck.19 Chesterman20 thus offers a thin defi-
nition of the rule of law as ‘government of laws, the supremacy of the law, and equality
before the law’. He finds that these elements are variably present in international organisa-
tions dealing with international human rights treaties, economic development, and UN
Security Council conflict resolution. The focus here is clearly on public international law
and the inter-state institutions, such as the United Nations, the International Criminal
Court, and the World Trade Organization. However, they ‘do not exist as autonomous
and complete jurisdictions in a manner comparable to the national legal systems that gave
rise to the concept of the rule of law’21 thus rendering the international rule of law more of
‘an aspiration’.22 While recognising the limitations of analogies between the national and
global rule of law, Chesterman identifies three ‘possible meanings’ of the international
rule of law:
the application of the rule of law principles to relations between states and other subjects of
international law. . . [the privileging of] international law over national law. . ., and the emergence
of a normative regime that touches individuals directly without formal mediation through
existing national institutions.23
He confines his analysis to the first in the belief that the second may apply to regional
organisations, such as the European Union, but these are exceptions, while the third is
in its infancy as ‘quasi-administrative regimes that fall outside traditional domestic and
international legal categories’.24 These three alternate ‘meanings’ of the rule of law in fact
obscure more than they clarify because they remain rooted in understandings of the inter-
national rule of law as a primarily state-based order operative between and amongst states
and a selection of state-based actors, such as international and regional organisations. In
fact, only the third understanding, concerning normative regimes involving individuals
unmediated by the state, comes close to capturing the growth of private power in the world
associated with the expansion and authority of transnational and multinational corpora-
tions, private industry and business associations, alongside developments in private and
public international law that are revolutionising the legal landscape and fundamentally
transforming statehood by reordering state-society relations.
Notably missing from Chesterman’s depiction of the rule of law are crucial develop-
ments that are transforming statehood: the field of private international economic law;
lex mercatoria; transnational law; and transnational regimes that make it possible for
individuals and business corporations to directly sue states in arbitration proceedings
that are delocalised, denationalised, privatised, and unmediated by the state. Indeed, the
developments associated with a new constitutionalism that substantially delink the rule
18
Suganami H. 2008. The Domestic Analogy and World Order Proposals. (Cambridge
University Press).
19
Franck T. 1995. Fairness in International Law and Institutions. (Oxford University Press);
Franck T. 1990. The Power of Legitimacy Among Nations. (Oxford University Press).
20
Chesterman (n 1) p.342.
21
Ibid., p.355.
22
Ibid., p.361.
23
Ibid., pp.355–6.
24
Ibid., p.355.
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of law and the state are nowhere recorded in this view of the international rule of law.25
The inter-state analytical focus of public international law does not accommodate the
growing significance and power of private actors, law, institutions, and processes in the
global political economy. The privatisation of global governance therefore challenges
elementary assumptions concerning the rule of law discussed above. Attention must shift
from old constitutionalist understandings to a conception of a new constitutionalism, if
we are to address the specificity of the rule of law today.
New Constitutionalism
New constitutionalism is a term coined by Stephen Gill26 to capture important changes

in the way in which law provides the foundations and infrastructure for a market
civilisation geared towards the expansion and deepening of capitalism. As he notes
‘New constitutionalism can be understood historically as . . . a political project to “lock
in” the power gains of capital on a world scale – it combines the old and the radically
new’.27 This is achieved through laws governing trade, investment, finance, and other
areas of productive and social activity that subordinate local societies and political
economies to the demands and interests of markets, foreign trade, investment, and other
productive activities. This subordination is achieved by locking states into binding legal
pre-commitments that limit their legislative and political autonomy in matters of trade,
investment, monetary and fiscal policies, as well as social policies. The concept of new
constitutional governance has been further developed in a number of areas concerning
economic, social, environmental regulation.28 Importantly, Christopher May29 argues
that the rule of law is the Grundnorm or first principle of new constitutional governance
in that it legitimises the neo-liberalisation of the global political economy and normalises
rule-governed behaviour supported by legal professionals and technical experts. The
global trade and investment regimes and their privatised international arbitral institu-
tions and proceedings are integral to this new constitutionalism.30 These are the legal
instruments that lock states into neo-liberal economic and social discipline; because of
the privilege that they accord to private, corporate actors, these regimes are best charac-
terised as mechanisms of private transnational governance. While this latter point will
25
See Indiana Journal of Global Legal Studies Special Issue on Human Rights Law and the
Boundaries of Statehood (2016) for developments that are transforming statehood.
26
Gill S. 2008. Power and Resistance in the New World Order. (MacMillan 2nd rev ed).
27
Ibid., p.163.
28
Gill, Stephen and A. Claire Cutler (eds). 2014. New Constitutionalism and World Order.
(Cambridge University Press).
29
See: May (n 1); May C. 2014. ‘The Rule of Law as the Grundnorm of the New
Constitutionalism,’ in Gill and Cutler, ibid., pp.63–75.
30
See: Schneiderman D. 2008. Constitutionalizing Economic Globalization: Investment Rules
and Democracy’s Promise. (Cambridge University Press); Schneiderman D. 2013. Resisting
Economic Globalisation: Critical Theory and International Investment Law. (Palgrave Macmillan);
Cutler A.C. 2008. ‘Toward a Radical Political Economy Critique of Transnational Economic Law’,
in Susan Marks (ed.) International Law on the Left: Revisiting Marxist Legacies. (Cambridge
University Press), pp.199–219; Cutler A.C. 2009. ‘Constituting Capitalism: Corporations, Law, and
Private Transnational Governance,’ 5(1) STAIR 99–115.
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be taken up in the next section, it is clear that the legal regimes governing international
trade (trade in services (GATS), trade-related investment (TRIMS)), the Energy Charter,
regional agreements such as the North American Free Trade Agreement (NAFTA), and
bilateral and international investment agreements (BITs and IIAs), are all instrumental
in providing the material and ideological foundations for capital accumulation today.
Possibly the pithiest illustration of new constitutionalism at work is the global investment
regime.
The global investment regime is comprised of international commercial arbitration
activities involving private parties, as well as the investor-state regime. While there are
many similarities between the two31 this discussion focuses on the latter as a classic
example of the new constitutional governance. The investor-state regime is comprised
of over 3,000 IIAs signed between over 210 states and has been directed at securing the
protection of foreign investment by offering a network of investment arbitral institu-
tions and rules foundational to the global political economy. As Vicuña32 observes, the
investment regime ensures that ‘the rule of law’ is embedded in international economic
relations and involves both private and public actors in contractual arrangements that
span the globe, linking local and global political economies through international law
on foreign investment. The typical IIA contains definitions, substantive obligations
for host states and dispute resolution through binding investor-state arbitration in
private tribunals that operate independently of national courts of law and legal systems.
Common standards include ‘fair and equitable treatment’, ‘full protection and security’,
‘national treatment’, ‘most-favoured-nation treatment’, and ‘treatment in accordance
with international law’. States that host foreign investments agree to observe these
standards and to avoid interfering in any negative ways with the investment activities
of foreign companies. States also agree to submit to binding dispute resolution in
independent arbitration tribunals should a foreign investor claim that the state has
in any way impaired their investment. Chapter 11 of NAFTA, as well as the dispute
settlement provisions of the Trans-Pacific Partnership (TTP) and the Transatlantic
Trade and Investment Partnership (TTIP) are prominent examples of IIAs that specify
standards and provide for dispute settlement procedures in independent arbitration pro-
ceedings. At the centre of the investor-state regime is the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). In
signing this convention host states agree to recognise and enforce the awards of foreign
arbitration tribunals in their national courts of law, but those courts are not allowed to
review or to interfere with the award.
The investor-state regime works to significantly alter state-society relations by
removing significant activities from national political and legal control and regulation.
For example, the interpretation of standards that host states must meet is governed
by an elite network or epistemic community of arbitration lawyers inculcated into an
arbitration culture that values market stability, the sanctity of contracts, freedom of
31
Cutler A.C. 2012 ‘Public and Private Authority in Transnational Dispute Resolution:
International Trade and Investment Arbitration’, 1 The Global Community Yearbook of International
Law and Jurisprudence (Oceana), pp.3–30.
32
Vicuña, Francisco Orrego (2004), ‘Of Contracts and Treaties in the Global Market’, 8(1)
Max Planck Yearbook of United Nations Law (Online), p.357.
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contract, and prioritises parties’ autonomy to operate independently in delocalised and

denationalised settings, largely beyond the reach of local courts of law. The private
nature of this justice system, operating as it does through ad hoc arbitration proceedings
led by arbitrators chosen by the contracting parties, enables private individuals and
corporations to directly sue states in binding arbitration proceedings. This right is a
revolutionary development under international law where traditionally only states may
sue states. A number of arbitration institutions exist and are used with great frequency.
Significantly, they do not provide for appeal mechanisms and under the New York
Convention signatory states are bound to enforce these arbitral awards through national
enforcement proceedings. When mapped against even the thinnest definition of the rule
of law these procedures fall short.
Consider the three requirements for the rule of law to obtain, as outlined earlier:
the limitation of government power; equality before the law; and the primacy of
judicial proceedings. Clearly the investor-state regime limits state power, but curiously,
not in the protection of citizens against abuses of government power, but rather in
the protection of the assets of foreign nationals! Moreover, investor-state agreements
are one-sided in that they impose obligations on host states, but not on the foreign
investors, which hardly suggests equality before the law. Finally, private arbitration
proceedings are not subject to judicial review. These characteristics fly directly in the
face of the primacy of judicial proceedings and thus even the thinnest definition of
the rule of law.
This looks even stranger when set against thicker definitions of the rule of law. The
requirement that law be accessible is clearly breached by the private, closed, and secretive
nature of international commercial arbitration and investor-state arbitrations. There is no
mechanism for third-party participation in investor-state arbitrations, as in most domestic
systems of law; participation by non-parties is severely limited. When coupled with the
highly technical nature of arbitration law and the closed-shop arbitration community,
the investor-state regime and its laws can hardly be regarded as accessible. There are few
mechanisms for limiting arbitral discretion, ensuring good faith, or adherence to inter-
national law. Indeed, there is no mechanism for holding arbitrators accountable, while
the ability of the investor-state regime to protect human rights is most questionable.33 In
fact, many believe that the delocalisation and privatisation of dispute resolution in the
investor-state regime produces a ‘democratic deficit’ as state ‘parties to investment agree-
ments can no longer legislate at will in the public interest without concern that an arbitral
tribunal will determine that the legislation constitutes interference with an investment’.34
The severe limitations on state autonomy in the face of challenges from foreign investors
are evident in a host of cases involving investor-state arbitration concerning health and
33
See: Cutler A.C. 2013. ‘Human Rights Promotion through Transnational Investment
Regimes: An International Political Economy Approach’, 1(1) Politics and Governance 16–31;
Cutler A.C. 2016. ‘Transformations in Statehood, the Investor-State Regime and the New
Constitutionalism’, 23(1) Indiana Journal of Global Legal Studies, 95–126.
34
Choudhury B. 2008. ‘Recapturing Public Power: Is Investment Arbitration’s Engagement of
the Public Interest Contributing to a Democratic Deficit?’ 41 Vanderbilt Journal of Transnational
Law 779.
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environmental regulation,35 services privatisation and emergency measures,36 and human

rights and land reform.37
Defects in the rule of law provided by the investor-state regime have led to much criti-
cism and calls from many for reform to the system.38 These calls come from a variety of
state, non-state, and civil society sources, both domestic and global, revealing the complex
nature of the investor-state regime as a central element of the transnational legal order,
to which we will now turn.
THE CONTESTABLE CORE OF THE TRANSNATIONAL RULE

OF LAW
I have argued elsewhere that the investor-state regime ‘creates peculiar forms of the rule of
law and of constitutionalism’.39 Possibly the most curious dimension of this constitutional
order is a form of ‘citizenship where foreign corporations have rights and no duties, and
host states have duties and no rights’.40 Not only do the interests of foreign corporations
trump those of national corporations and governments, but foreign corporations enjoy
hard, enforceable rights, while observing only soft, voluntary corporate social responsi-
bilities (CSR). In order to explain the one-sided nature of the investor-state regime, it is
necessary to examine the contestable core of the transnational rule of law.
New constitutional governance is creating a legal order that may be defined as late
capitalist and postmodern in form.41 The recourse to law to reconstitute welfare states as
market competitors through liberalisation, privatisation, and reregulation is characteristic
of late capitalism.42 This recourse involves the intensification and expansion of legal
disciplines that facilitate transnational capitalism, the displacement of welfare states, and
35
See United Mexican States v. Metalclad 2001; Ethyl. Philip Morris v. Uruguay involved
arbitration over policies enacted to reduce tobacco consumption. See Ministerio de Relaciones
Exteriores, 2011. Philip Morris v. Australia involved a similar case presented, but has since been set
aside for jurisdictional considerations.
36
Cases such as Abaclat and others v. Argentina, CMS Gas v. Argentina, and Azurix v. Argentina
highlight limitations on the government’s ability to regulate key policy areas during its 1999–2002
economic crises.
37
Piero Foresti et al. v. The Republic of South Africa involved a US$300 million claim related
to South Africa’s enactment of the Black Empowerment Act that sought to redress the injustices
of the apartheid regime.
38
See UNCTAD (2015), ‘World Investment Report 2015’, http://unctad.org/en/PublicationsLi-
brary/wir2015_en.pdf; Van Harten G. 2005 ‘Private Authority and Transnational Governance: The
Contours of the International System of Investor Protection’, 12 Review of International Political
Economy 600–623; Van Harten G. 2010 ‘Investment Treaty Arbitration, Procedural Fairness, and
the Rule of Law’, in Stephan Schill (ed.) International Investment Law and Comparative Public Law
(Oxford University Press); Schneiderman (2013) (n 30); Choudhury (n 34).
39
Cutler A.C. 2014 ‘New Constitutionalism and the Commodity Form of Global Capitalism,’
in Gill and Cutler, (n 29), p.103.
40
Ibid., p.104.
41
See: Cutler A.C. 2003. Private Power and Global Authority: Transnational Merchant Law in
the Global Political Economy. (Cambridge University Press); Cutler C. 2008. (n 30), pp.199–219.
42
See: Harvey D. 1990. The Conditions of Postmodernity: An Enquiry into the Origins of
Cultural Change. (Cambridge, MA: Blackwell); Harvey D. 2003. The New Imperialism (Oxford
M4581 - MAY_9781786432438_t.indd 314 01/08/2018 14:47

the support of flexible accumulation through the ‘soft’ reregulation of labour relations,
consumer protection, human rights, environmental practices, and corporate ethics through
recourse to voluntary CSR initiatives. Late capitalism is giving rise to a specifically post-
modern form of law that deepens the logic of the market and market civilisation43 while
also prompting forms of inter-legality, as multiple regional, national, and transnational
legal orders intersect. Boaventura de Sousa Santos refers to inter-legality as ‘globalised
localisms’ and ‘local globalisms’ that erase territorial borders and link local and global
political economies in complex ways; both characteristics are evident in the investor-state
regime.44 The globalisation of local forms can be seen in the worldwide spread of interna-
tional commercial arbitration laws, practices, and institutions from their origins in Western
Anglo-American and European traditions to now encompass most legal systems in the
world.45 The localisation of global legal forms is similarly evident in the practices of local
and national courts which enforce international arbitral awards. The investor-state regime
operates in a delocalised and denationalised setting, but reaches into states to subordinate
local and national interests to those of foreign capital. Interlegality gives rise to defining
dialectical tensions between two central vectors of power in the global political economy.46
The first vector concerns the dialectical tension over the predominance of international
or transnational legality, while the second concerns competition between regulation
through hard or soft law. There is an increased pluralism concerning both the subjects
and sources of legal regulation, involving state and non-state actors (both corporate and
civil society), as well as a variety of regulatory instruments ranging from binding treaties
and contracts to voluntary codes of conduct, model laws and rules. This mix creates
a pluralistic and heterogeneous legal order that defies easy classification, but is best
captured analytically as ‘transnational’ in nature, scope, and effect.
In a series of lectures delivered at Yale Law School 60 years ago, Judge Philip Jessup47
defined transnational law as ‘all law which regulates actions or events that transcend
national frontiers. Both public and private international law are included, as are other
rules which do not wholly fit into such standard categories’. He further noted that
‘[t] ransnational situations, then, may involve individuals, corporations, states, organisations
of states, or other groups’ and he pointed to private citizens, oil companies, international
governmental organisations (IGOs), such as the United Nations, and international non-
governmental organisations (INGOs), such as the International Chamber of Commerce,
as entities capable of engaging in transnational activities. Pluralism in actors is matched
by pluralism in the sources of law and today is associated with paradigmatic developments
that are breaking the historic unity of law and state.48 Moreover, pluralism in sources of law
University Press); Jameson, F. 1991. Postmodernism or the Cultural Logic of Late Capitalism.
(Durham: Duke University Press).
43
Gill S. 2014. ‘Market Civilization, New Constitutionalism and World Order’, in Gill and
Cutler (n 29), pp.29–44.
44
Santos, B. de Sousa. 1987. ‘Law: A Map of Misreading. Toward a Postmodern Conception
of Law’, 14 (3) Journal of Law and Society 279–302.
45
See Cutler A.C. 2003. (n 41); Cutler A.C. 2008. (n 30), pp.199–219 for a discussion of foundations
of transnational economic law as a dimension of expanding Western political and legal hegemony.
46
See Cutler 2013. (n 33) for a fuller articulation of this analysis.
47
Jessup. P. 1956. Transnational Law. (New Haven: Yale University Press), p.2.
48
See also Cutler, ‘Locating Private Transnational Authority in the Global Political Economy,’
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reflects another characteristic of postmodern regulation: the preference for soft, voluntary
laws that facilitate flexible accumulation.49
However, there is little agreement over whether this increasing legal pluralism is a posi-
tive development accompanying the functional differentiation of global political economy
that is opening up new avenues for reflexive governance,50 or threatens to empower already
powerful corporations and advance a predatory form of transnational capitalism.51 It
is probable that both views have purchase, and the tensions between international and
transnational legality, and between hard and soft regulatory modes go to the very heart
of the contested core of capitalism today. Contradictory impulses between binding, hard
disciplines on national governments and soft, voluntary corporate social responsibilities
suggest that the deck is stacked in favour of the corporation. While recent reviews of
the investor-state regime suggest that this might well be the case,52 there have also been
important moments of resistance suggesting that the core of transnational legality is
contestable. Resistance has taken place both from outside and from inside the regime.
Resistance from Outside
From outside the regime states are denouncing the International Centre for the Settlement
of Investment Disputes Convention (ICSID Convention) that gave birth to investment
regime.53 The ICSID Convention, entered into force in 1966 and provided the framework
for the proliferation of bilateral and international investment agreements by establishing
the infrastructure and rules to govern the protection of foreign investment. Bolivia,
Ecuador, and Venezuela have withdrawn their membership from the ICSID Convention
in response to civil society contestation of a number of cases involving matters of public
policy. Argentina is considering withdrawing, while Brazil, Mexico, India, and South
Africa have either refused or have been reluctant to sign the ICSID Convention.54 In each
case, the question of the democratic deficit in the operation of the regime is the key issue.55
presented at the Transnational Law Institute Signature Conference on Jessup’s Bold Proposal:
Engagements with ‘Transnational Law’ after Sixty Years, The Dickson Poon Law School, King’s
College London, July 1–2, 2016.
49
Harvey (n 42).
50
Zumbansen, P. 2010. ‘Transnational Legal Pluralism,’ 1 (2) Transnational Legal Theory
141–89.
51
See: Choudhury (n 34); Santos B. de Sousa, 2002. Toward and New Legal Common Sense:
Law, Globalization, and Emancipation. 2nd ed (Butterworths LexisNexis).
52
See: Van Harten G. 2016. ‘Who Benefitted Financially from Investment Treaty Arbitration:
An Evaluation of the Size and Wealth of Claimants’, Osgoode Legal Studies Research Paper No.
14/2016; Van Harten G. 2012. ‘Arbitrator Behaviour in Asymmetrical Adjudication: An Empirical
Study of Investment Treaty Arbitration’, 50 (1) Osgoode Hall Law Journal 211–68.
53
Cutler A.C. and Lark D. 2017. ‘Theorizing Private Transnational Governance by Contract
in the Investor-State Regime,’ in A. Claire Cutler and Thomas Dietz (eds) The Politics of Private
Transnational Governance by Contract. (Routledge).
54
Marques R.D. (2014), ‘Notes on the Persistent Latin American Countries’ Attitude
Towards Investment Arbitration and ICSID’, Kluwer Arbitration Blog. Retrieved from http://
kluwerarbitrationblog.com/2014/07/24/some-notes-on-the-latin-american-countries-attitude-towa
rds-investment-arbitration-and-icsid/#fn-10150-5.
55
See: Wick D.M. 2012. ‘The Counter Productivity of ICSID Denunciation and Proposals for
M4581 - MAY_9781786432438_t.indd 316 01/08/2018 14:47

States such as Argentina, Bolivia, Congo, Ecuador, and Venezuela have refused to
pay compensation to investors in cases that generated much public criticism.56 Since
2008 actions seeking the annulment of ICSID awards has exceeded ‘the number for the
entire history of ICSID’.57 This form of contestation is largely symbolic however, for, as
Simmons observes, annulment applications are rarely successful.58
The termination of IIAs is another approach by states. Ecuador, Venezuela and Bolivia
terminated several investment agreements,59 while South Africa terminated a number
of agreements with countries in the European Union (EU).60 Expressing concerns over
threats to sovereignty, Indonesia terminated multiple agreements, and a number of other
states are revising their agreements.61 In what is regarded by some states as a return to
the Calvo Doctrine, which mandated local court jurisdiction over foreign investment
disputes, many states are reviewing the terms of their existing investment agreements,
rejecting dispute settlement provisions that provide for denationalised arbitrations, and
are re-establishing the jurisdiction of national courts of law.62 In Latin America, states
are amending their constitutions to reject the jurisdiction of transnational arbitrational
tribunals.63
Contestation over the investor-state regime extends beyond the developing world.
The European Commission has also encouraged the termination of over 200 BITs
between member states. A leaked ‘non-paper’ presented to the EU Council’s Trade Policy
Change,’ 2 Journal of International Business and Law 241–83; Sornarajah M. 2015. Resistance and
Change in the International Law on Foreign Investment (Cambridge University Press 2015).
56
Wick ibid., p.245.
57
Simmons B. 2014. ‘Bargaining over BITs, arbitrating awards: The regime for protection and
promotion of international investment,’ 66 (1) World Politics 12–46.
58
Ibid, 38–9. As of 2010, 15 countries had publically registered for the annulment of arbitral
awards.
59
Ripinsky, S. 2012. ‘Venezuela’s Withdrawal from ICSID: What it Does and Does Not
Achieve’, International Institute for Sustainable Development. www.iisd.org/itn/2012/04/13/
venezuelas-withdrawal-from-icsid-what-it-does-and-does-not-achieve/.
60
Agreements with Germany, the Netherlands, Spain, Luxembourg, Belgium and Switzerland
See: Hindelang S. and Krajewski M. 2013. (eds) Shifting Paradigms in International Investment Law:
More Balanced, Less Isolated, Increasingly Diversified. (Oxford University Press), p.277; Hunter R.
2013. ‘South Africa Terminates Bilateral Investment Treaties with Germany, Netherlands, and
Switzerland’, Robert Hunter Arbitration & Investment Law. www.rh-arbitration.com/south-africa-
terminates-bilateral-investment-treaties-with-germany-netherlands-and-switzerland/; Freehills, Pea
cock, Nicholas and Hannah Ambrose, 2013 ‘South Africa terminates its bilateral investment treaty
with Spain: second BIT terminated, as part of South Africa’s planned review of its investment
treaties’, www.lexology.com/library/detail.aspx?g=daf93855-71f9-425e-92d3-5368d104f8ff.
61
See: Price D. 2016. ‘Indonesia’s Bold Strategy on Bilateral Investment Treaties: Seeking an
Equitable Climate for Investment?’ Asian Journal of International Law 1–28; Prasetyo P. 2016.
‘Protecting the government in investor-state dispute’, The Jakarta Post, June 27, 2016. www.
thejakartapost.com/news/2016/06/27/protecting-government-investor-state-dispute.html.
62
Shan W. 2007. ‘From North-South Divide to Private-Public Debate: Revival of the Calvo
Doctrine and the Changing Landscape in International Investment Law’, 27(3) Northwestern
Journal of International Law and Business 632–64.
63
Marques R. 2014. ‘Notes on the Persistent Latin American Countries’ Attitude Towards
Investment Arbitration and ICSID’, Kluwer Arbitration Blog. http://kluwerarbitrationblog.
com/2014/07/24/some-notes-on-the-latin-american-countries-attitude-towards-investment-arbitra
tion-and-icsid/#fn-10150-5.
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Committee, confirmed this proposal and suggested an alternative EU-wide investor-state

arbitration mechanism.64 This development appears to be a response to the European
Commission receiving nearly 150,000 replies to an online consultation that were ‘highly
sceptical’ of including investor-state arbitration within the proposed TTIP.65 Indeed, as of
June 2016 the TTIP has garnered significant criticism over its investor-state mechanism,
with one petition receiving over 3 million European signatures rejecting the proposal, the
most ever in European history.66 Thus, while efforts toward an EU-wide investor-state
arbitration mechanism may be seen as a potential homogenisation of treaty law, resistance
towards its use and inclusion within existing and larger pending IIAs by both developed
and developing states, and their populations has led to significant uncertainty as to the
future of the regime.
Accompanying resistance towards IIAs and investor-state arbitration are moves
towards renegotiating the contractual terms of IIAs and the institutional rules govern-
ing investor-state arbitration. One method of reform has been through the updating of
model investment agreements. Some model agreements are narrowing the definitions of
‘investor’ and ‘investment’ and providing less interpretive room for arbitral tribunals.67
These ‘new generation’ IIAs also include measures such as ‘escape clauses’, ‘public policy
exceptions’, and ‘negative lists’, which aim to grant greater policy autonomy to host
states. States as diverse as Brazil, Canada, China, India, South Africa, and the United
States have introduced new model investment agreements or have re-negotiated their
pre-existing agreements.68 Moreover, UNCTAD’s World Investment Report of 2015 sug-
gested that ‘at least 50 countries or regions are currently revising or have recently revised
their model IIAs’, while their recently released Report of 2016 indicated that ‘about 100
countries’ had reviewed their IIA networks.69
The China-Australia Free Trade Agreement (ChAFTA), for example, limits investor
protections to ‘national-treatment’ and provides an innovative mechanism allowing for
‘joint treaty party control’.70 This mechanism allows each state to submit ‘public welfare
notices’ in cases of key public interest, which, if accepted by contracting parties, is b
inding
64
Jongerius N. 2016. ‘Leaked documents show five EU Member States attempting to
institutionalise ISDS throughout Europe’. Transnational Institute. https://www.tni.org/files/article-
downloads/intra-eu-bits2-18-05_0.pdf pp.1–5.
65
European Commission. 2015. ‘Report presented today: Consultation on investment protec-
tion in EU-US trade talks.’ European Commission Trade News Archive. http://trade.ec.europa.eu/
doclib/press/index.cfm?id=1234.
66
Hale Virginia. 2016. ‘Revealed: EU to bypass national parliaments on controversial TTIP
deal’, Breitbart News Network. http://www.breitbart.com/london/2016/06/21/eu-bypass-democracy
-trade-deals/.
67
See: UNCTAD. 2015. ‘United Nations Convention on Transparency in Treaty-based
Investor-State Arbitration’, United Nations Commission on International Trade Law, http://www.
uncitral.org/pdf/english/texts/arbitration/transparency-convention/Transparency-Convention-e.pdf
pp.140–57; UNCTAD. 2016. ‘Investment Policy Hub Database’, United Nations. http://investment-
policyhub.unctad.org.
68
Ibid., pp.108–10; UNCTAD 2016.
69
Ibid., p.108; UNCTAD 2016.
70
Roberts A and Braddock R. 2016 ‘Protecting Public Welfare Regulation Through Joint
Treaty Party Control: A ChAFTA innovation’, Columbia FDI Perspectives, no. 176 by Columbia
Center on Sustainable Development.
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on investor-state tribunals and their rulings. One report suggests that the ‘ChAFTA
mechanism represents a new step in a broader trend of states seeking to recalibrate the
balance between investor protection and state sovereignty, and between the interpretive
power of arbitral tribunals and treaty parties’.71
Resistance from Inside
From within the regime, institutional reforms have also been made regarding the rules
and operation of investment arbitration proceedings. Responding to widespread public
criticism by NGOs, experts, civil society groups, and states, ICSID and the United
Nations Commission on International Trade Law (UNCITRAL) have taken steps to
address transparency, accountability, and consistency within the arbitration process.
ICSID introduced new Rules directed towards ‘making proceedings more streamlined and
transparent, while instilling greater confidence in arbitration’. These include an expedited
process for seeking provisional measures, a new mechanism for raising preliminary objec-
tions to claims, more open provisions for amicus curiae and third-party submissions,
allowances on public attendance at oral hearings, the open publication of awards, and
clearer rules governing arbitrator disclosures and fees.72 Although still not allowing for an
appeals process, the reform of ICSID rules nevertheless suggests a significant attempt to
bridge the gap between public and private international law practices within investor-state
arbitration.
UNCITRAL also released its Rules on Transparency in Treaty-based Investor-State
Arbitration, which became effective in April 2014. Adopting similar provisions to
those set out in ICSID’s 2006 reforms, the updated UNCITRAL Rules seek to enhance
legitimacy by opening up disputes to the public, most particularly in areas in which there
is deemed a substantial public interest. UNCITRAL also opened the Convention on
Transparency in Treaty-based Investor-State Arbitration for signature in March 2015.
The Convention is expected to enforce the 2014 Rules and directs tribunals and those
appealing to customary law to be more inclusive of public interests and participation
within investor-state arbitration.
Another important method of reform within the regime has been through the
engagement and sponsoring of dialogue between institutions, policy networks, states,
and civil society. Following UNCTAD’s annual World Investment Forum in October
2014 it convened an Expert Meeting on the Transformation of the International
Investment Agreement Regime: The Path Ahead in February 2015. These meetings
brought together over 3,000 stakeholders, including chief negotiators, senior business
representatives, academics, NGOs, and members of civil society ‘to voice their opinions
and ideas on the current state and the future of the IIA regime and ISDS mechanisms’.
Throughout, stakeholders presented a comprehensive list of concerns and issues facing
the regime and provided a report detailing various prospective avenues for reform.
71
Ibid., p.2.
72
Born, Gary et al. ‘Investment Treaty Arbitration: ICSID Amends Investor-State Arbitration
Rules’, WilmerHale. www.wilmerhale.com/pages/publicationsandnewsdetail.aspx?NewsPubId=90
393.
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This report supplements UNCTAD’s Investment Policy Framework for Sustainable

Development of 2012 and 2015, which elaborated 11 core principles of good invest-
ment governance, offered ‘guidance to IIA negotiators for the drafting of sustainable-
development-friendly agreements’, and provided a framework for ‘a new generation
of investment policies’ to fulfil a broader developmental agenda. Likewise the World
Investment Forum of 2016 examined reforming the investor-state regime and proposals,
like that from the European Commission, for the creation of an investor-state court.73
These developments suggest that the investor-state regime is undergoing transformation
in the face of challenges but the prospect of reforming the new constitutionalism of this
transnational regime in light of the values of old constitutionalism remains very much
a live issue.
CONCLUSION
This chapter has argued that the investor-state regime provides evidence of the emer-
gence of a new transnational rule of law that differs considerably from the rule of law
associated with national or international legal systems. A defining difference is the cen-
trality and, indeed, the dominance of private, foreign, and non-state actors, institutions,
and laws in the construction of this transnational legal regime. The transnational rule of
law of the investor-state regime turns conventional understandings of the rule of law on
their head in multiple ways. While the regime does limit governmental powers, it does
not do so to protect the interests of its citizens or public, but to protect those of private
foreign corporations. The regime does not provide equality before the law because one-
sided investment agreements provide hard enforceable rights for foreign corporations
alone, who are subject to only soft, unenforceable corporate social responsibilities.
Finally, the regime does not recognise the primacy of judicial proceedings but creates
a highly privatised and elite arbitration system that is very difficult if not impossible
to access for any who are not party to the investment agreements. This system forms a
most curious rule of law!
The movements of resistance and reform discussed above suggest growing uncertainty
regarding the future of the investor-state regime and this form of transnational legality.
On the one hand, an increasing group of state and non-state actors have been active in
contesting or eliminating investment agreements from their policy agendas. Responding
to domestic pressures in key public policy areas, states in both the developing and devel-
oped world have sought to rebalance their contractual relationship with private actors
by exiting or reevaluating their membership within the regime. On the other hand, there
have been attempts to rewrite the rules governing investor-state relations by modifying
the existing regime to be more receptive to prevailing criticisms. In this endeavour, states,
civil society groups, and international institutions have increasingly worked together to
renegotiate and reevaluate transnational law so as to redistribute the balances between
73
Sorieul, R. 2016 ‘Statement’, World Investment Forum 2016 High Level IIA Conference,
Nairobi, Kenya. http://unctad-worldinvestmentforum.org/wp-content/uploads/2016/07/WIF-2016-
Statement-UNCITRAL.pdf.
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international and transnational legalities and hard and soft laws. This challenge suggests
that the contestable core of transnational legality creates some space for the progressive
uses of law and provides some hope that E.P. Thompson was correct in the view that the
rule of law is a ‘unquestionable human good’, at least some of the time.
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19. Global administrative law
Valentina Vadi
‘New needs need new techniques’.1
INTRODUCTION
The growing expansion and specialization of international law has been matched by the
increase of international organizations2 and international courts.3 International organiza-
tions are no longer the mere ‘agents of states’;4 rather, they have become new legislators
in their own right, and the emerging international law influences deeply and broadly
everyday life.5 In parallel, international courts and tribunals are contributing to global
governance.6 While some regulatory regimes have ‘soft’ dispute settlement methods,
such as negotiation, mediation, and good offices,7 others resort to sophisticated dispute
settlement mechanisms that have compulsory jurisdiction,8 review state compliance with
international rules,9 and contribute to the making of international law.
The growing juridification of international relations suggests that international law
is now governing international relations that were previously dominated by power and
fear.10 Such process also constitutes a paradigm shift, as international law is no longer
1
Jackson Pollock, Interview with William Wright, Long Island, New York, Late 1950,
reprinted in Pepe Karmel (ed.) Jackson Pollock — Interviews, Articles and Reviews (New York:
Museum of Modern Art 1998) at 20.
2
See generally José E. Alvarez, International Organizations as Lawmakers (Oxford: Oxford
3
See generally Karen Alter, The New Terrain of International Law: Court, Politics, Rights
(Princeton: Princeton University Press 2014).
4
José E. Alvarez, ‘Governing the World: International Organizations as Lawmakers’, Suffolk
Transnational Law Review 31 (2007–2008) 596, 597.
5
Luis Eslava, Local Space, Global Life — The Everyday Operation of International Law and
Development (Cambridge: Cambridge University Press 2015) at 4, noting that ‘the international
legal and institutional order is becoming increasingly present in the daily running of local admin-
istrations and residents’ affairs.’
6
See generally Geert De Baere and Jan Wouters (eds) The Contribution of International and
Supranational Courts to the Rule of Law (Cheltenham, UK: Edward Elgar 2015); Anne-Marie
Slaughter, ‘Judicial Globalization’, Virginia Journal of International Law 40 (2000) 1103–24.
7
See e.g., S. von Schorlemer, ‘UNESCO Dispute Settlement’, in Abdulqawi A. Yusuf (ed.),
Standard-setting in UNESCO, Vol. I: Normative Action in Education, Science, and Culture. Essays
in Commemoration of the Sixtieth Anniversary of UNESCO; (Leiden/Boston: Martinus Nijhoff
Publishers 2007).
8
See e.g., Claus-Dieter Ehlermann, ‘Six Years on the Bench of the “World Trade Court”’,
Journal of World Trade 36 (2002) 605–39.
9
Alter (n 3) at 5.
10
Ming-Sung Kuo, ‘Inter-public Legality or Post-public Legitimacy? Global Governance and
the Curious Case of Global Administrative Law as a New Paradigm of Law’, International Journal
322
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Global administrative law 323
conceived as a purely voluntary system based on reciprocity and quasi-contractual

agreements;11 rather, it is now conceptualized as embodying the rule of law – according
to which, state actions are subject to the rule of law.12
However, because global governance has a great ‘effect on individuals’ and can
‘directly . . . come into conflict with national social values’,13 cultural and political
resistance to global governance as conducted by international law regimes has surfaced
with regard to the operation of international organizations and their dispute settlement
mechanisms.14 Critics contend that international organizations prioritize the interests
of affluent private actors and powerful states, at the expense of the poor.15 Therefore,
questions have arisen as to whether international governance is a legitimate, democratic
and accountable system.
Global governance has been compared to a Jackson Pollock painting, a vibrant net of
colours without any prearranged pattern and yet melting together on a single canvas.16
How do scholars and practitioners make any sense of this apparent chaos? Several maps
and methodologies have been proposed to chart this uneven terrain:17 among these,
Global Administrative Law (GAL) is a theoretical project that sets out to breakdown the
complexity of international relations by using the methods and insights of administrative
law.18 According to some, GAL also constitutes a distinct field of study with the potential
to advance the rule of law in global governance, ensure greater accountability on the part
of global regulatory and adjudicatory bodies, and promote greater consideration of the
of Constitutional Law 10 (2012) 1050–75, 1050–51, highlighting that ‘law is now expected to reign
in international relations that used to be conducted according to the realist logic of power and
interest.’
11
Alter (n 3) at 6.
12
See generally Christopher May, The Rule of Law: The Common Sense of Global Politics
(Cheltenham: Edward Elgar 2014).
13
Joseph H.H. Weiler, ‘The Geology of International Law—Governance, Democracy and
Legitimacy’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht — Heidelberg Journal
of International Law 64 (2004) 547, 550.
14
See generally Joel R. Paul, ‘Cultural Resistance to Global Governance’, Michigan Journal
of International Law 22 (2000–2001), 1–84. See also Machiko Kanetake and André Nollkaemper,
‘The International Rule of Law in the Cycle of Contestations and Deference’, Amsterdam Center
for International Law Research Paper No. 14 (2015) at 7.
15
Andrew D Mitchell and John Farnik, ‘Global Administrative Law: Can It Bring Global
Governance to Account?’, Federal Law Review 37 (2009) 237–261, at 243.
16
Lorenzo Casini, ‘Beyond Drip-painting? Ten Years of GAL and the Emergence of a Global
Administration’, International Journal of Constitutional Law 13 (2015) 473–77, at 473, analogizing
the complex legal framework governing international relations to a Pollock’s painting, ‘a network
of lines without any clear logical connection and yet harmoniously linked together on a single
canvas.’
17
See e.g., Steven R. Ratner and Anne-Marie Slaughter, ‘Appraising the Methods of
International Law: A Prospectus for Readers’, American Journal of International Law 93 (1999)
291, examining legal positivism, the New Haven School, international legal process, critical
legal studies, international law and international relations, feminist jurisprudence, and law and
economics among others; Iain Scobbie, ‘Wicked Heresies or Legitimate Perspectives?: Theory and
International Law’, in Malcolm D. Evans (ed.) International Law (Oxford: Oxford University Press
2010) 58–92.
18
Casini (n 16) at 474.
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public interest. After examining the notion, aims, and objectives of GAL, this chapter
examines the promises and pitfalls of this emerging field of study. It then offers some
preliminary conclusions.
WHAT IS GLOBAL ADMINISTRATIVE LAW?
There is no single definition of GAL;19 rather, the concept is fluid and allows multiple
meanings.20 Examining the flourishing literature on GAL, this chapter identifies three
principal conceptions of GAL. First, GAL constitutes a method of inquiry: in broad
strokes, GAL is a new epistemology or way of approaching global governance. It invites
scholars to think conceptually about significant themes of international relations, offer-
ing a point of view and an entry into international law. In particular, by treating global
governance as analogous to administrative action,21 GAL investigates international law
through the lens of administrative law concepts such as the rule of law, proportionality,
and reasonableness, standard of review, participation, and transparency among others.22
In domestic law, these public law concepts seek to promote the rule of law in decision-
making by local administrators and judges; they restrain public power in order to protect
individual entitlements. Analogously, GAL proponents argue, at the international level,
public law concepts can promote the rule of law by creating an argumentative framework
that global regulators and adjudicators can use in regulation and decision-making respec-
tively. In other words, while domestic, administrative law subjects the exercise of public
power to the rule of law, GAL aims to do the same at the global level.23
Second, and more ambitiously, according to some scholars, GAL constitutes an emerg-
ing field of study. As a distinct field of study, GAL includes the principles, practices,
and legal tools that promote transparency, participation, and review of bodies exercising
power in global governance. Scholars focusing on GAL consider that far from being mere
instruments of their member states, international organizations have become similar
19
Sabino Cassese, ‘Global Administrative Law: The State of the Art’, International Journal of
Constitutional Law 13 (2015) 465–8, noting that ‘the definition of global administrative law is still
highly contested.’
20
See e.g., Edoardo Chiti, ‘Where Does GAL Find its Legal Grounding?’ International Journal
of Constitutional Law 13 (2015) 486–91, at 487, identifying and critically assessing four main
conceptions of GAL.
21
Benedict Kingsbury, Nico Krisch and Richard B. Stewart, ‘The Emergence of Global
Administrative Law’, Law and Contemporary Problems 68 (2005) 15, 17, suggesting that ‘much of
global governance can be understood and analysed as administrative action.’ Benedict Kingsbury
and Nico Krisch, ‘Introduction: Global Governance and Global Administrative Law in the
International Legal Order’, European Journal of International Law 17 (2006) 1–14, at 2, noting
that: ‘The concept of global administrative law begins from the twin ideas that much of global
governance can be understood as administration, and that such regulatory administration is often
organized and shaped by principles of an administrative law character.’
22
See e.g. Valentina Vadi, Proportionality, Reasonableness and Standards of Review in
International Investment Law and Arbitration (Edward Elgar 2018).
23
Mitchell and Farnik (n 15) at 242, adding that ‘Much of this criticism relates to a sentiment
of mistrust, inspired by a perception of inadequate transparency and insufficient global public or
citizen participation in the decision-making of these organisations.’
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to autonomous regulators with their own respective cultures, aims and objectives and
thereby have determined the emergence of the global administrative space. This leads
GAL proponents to frame international organizations in terms of global administration,
and argue that a global administrative law governs their operation. If global governance
can be understood as regulatory and adjudicative administration, such administration
can (or should) be organized and shaped by administrative law principles. According to
GAL proponents, global administrative law aims to prevent the abuse of governmental
power and addresses the accountability gaps created by the rise of global governance.
Therefore, they study GAL as a new regulatory space that has emerged in addition to, and
beyond, international law and domestic administrative law.24 They consider GAL, or the
lex administrativa communis, as ‘[the] process of a global homologation of principles of
administrative, comparative and international law under different legal systems’.25
Third, if not a fully-fledged branch of law, GAL certainly constitutes a growing research
project,26 studying the internationalization of administrative law and the administrativi-
zation of international law. A number of administrative and international law scholars
have launched and developed the GAL project in the United States and elsewhere.
Whatever the notion of GAL one adopts, it examines the operation of international
regimes and their contribution to global governance using the categories of administrative
law. Legal scholars have used administrative law tools to scrutinize global governance
in several sectors, such as investment,27 trade,28 war,29 water,30 sports31 and cultural
heritage,32 among others.
For instance, Van Harten and Loughlin conceptualize investment treaty arbitration as a
24
25
See generally Javier Robalino-Orellana and Jaime Rodríguez-Arana Muñoz (eds), Global
Administrative Law: Towards a Lex Administrativa (Cameron May 2010) at xvii.
26
See Institute for International Law and Justice, New York University, ‘Welcome to the
Website of the Global Administrative Law Project’, http://www.iilj.org/gal/, last visited on 8 May
2018.
27
Gus Van Harten and Martin Loughlin, ‘Investment Treaty Arbitration as a Species of
Global Administrative Law’, European Journal of International Law 17 (2006) 121, 122; Santiago
Montt, State Liability in Investment Treaty Arbitration: Global Constitutional and Administrative
Law in the BIT Generation (Oxford/Portland, Or.: Hart 2012).
28
See e.g., Richard B. Stewart and Michelle Ratton Sanchez Badin, ‘The World Trade
Organization: Multiple Dimensions of Global Administrative Law’, International Journal of
Constitutional Law 9 (2011) 556–86; Andrew D. Mitchell and Elizabeth Sheargold, ‘Global
Governance: The World Trade Organization’s Contribution’, Alberta Law Review 46 (2009)
1061–80.
29
See e.g., Daphné Richemond-Barak, ‘Regulating War: A Taxonomy in Global Administrative
Law’, European Journal of International Law 22 (2011) 1027–69, applying GAL’s methodology to
the private security and military industry and using the industry as a case study in GAL.
30
See Bronwen Morgan, ‘Turning Off the Tap: Urban Water Service Delivery and the Social
Construction of Global Administrative Law’, European Journal of International Law 17 (2006)
215–46.
31
Lorenzo Casini, ‘The Making of a “Lex Sportiva” by the Court of Arbitration for Sport’, in
Robert C.R. Siekmann and Janwillem Soek (eds) Lex Sportiva: What is Sports Law? (The Hague:
T.M.C. Asser Press 2012), 149–71.
32
Valentina Vadi, ‘Global Cultural Governance by Arbitral Tribunals: The Making of a Lex
Administrativa Culturalis’, Boston University International Law Journal 33 (2015) 101–38.
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species of global administrative review.33 The legal nature of investment treaty arbitration
has been subject to extensive debate in international law scholarship and sociological liter-
ature.34 Given its hybrid character, this particular dispute settlement mechanism has been
compared to a variety of different mechanisms: while some scholars contend that invest-
ment treaty arbitration is analogous to commercial arbitration, others have suggested it is
similar to administrative review or other forms of public international law adjudication.
Van Harten and Loughlin have provided a seminal contribution to this debate, arguing
that investment treaty arbitration is analogous to administrative review. In utilizing the
analytical lenses of the GAL theory, their argument proceeds as follows. First, arbitral
tribunals have a global character because their authority derives from international agree-
ments. Second, arbitral tribunals, like administrative courts, settle disputes arising from
the exercise of public authority.35 Third, in settling legal disputes,36 arbitrators borrow key
administrative law principles that guide the conduct of public administrations, such as
reasonableness, proportionality, procedural fairness, and efficiency as useful parameters
for evaluating the conduct of states and assessing their compliance with relevant invest-
ment treaties.37 This analysis has been highly influential, and has spurred a healthy debate
on the nature of international investment law and arbitration.
What are the aims and objectives of GAL? According to its proponents, GAL aims
to ‘provide legitimacy to global administrative processes’, ‘emphasis[ing] the need for . . .
transparency, participation, reasoned decisions . . . and effective review’,38 and support-
ing social understandings that promote or otherwise affect the accountability of global
administrative bodies’.39
STRENGTHS
The lack of a fixed meaning allows the GAL concept appeal to a wide audience. Being
capable of different—at times converging and at times diverging—interpretations, it can
easily fit the expectations of different audiences. Depending on the conceptualization of
GAL that one adopts, it has different strengths and pitfalls: this section examines the
strengths of GAL as a method and as a project.
As a method for studying international relations, GAL has three major merits: not only
33
Van Harten and Loughlin (n 27) at 123.
34
See Anthea Roberts, ‘Clash of Paradigms: Actors and Analogies Shaping the Investment
Treaty System’, American Journal of International Law 107 (2013) 45; Valentina Vadi, Analogies
in International Investment Law and Arbitration (Cambridge: Cambridge University Press 2016).
35
Stephan Schill, ‘Crafting the International Economic Order: The Public Function of
Investment Treaty Arbitration and Its Significance for the Role of the Arbitrator’, Leiden Journal
of International Law 23 (2010) 401, 413.
36
Convention on the Settlement of Investment Disputes between States and Nationals of
Other States, 18 March 1965, 17 U.S.T. 1270 (1966), Article 25.
37
Van Harten and Loughlin (n 27) at 146.
38
Mikael Rask Madsen, ‘Judicial Globalization and Global Administrative Law: The
Particularity of the Proliferation of International Courts’, iCourts Working Paper Series, No. 28,
2015, at 6.
39
Kingsbury, Krisch and Stewart (n 21) 17.
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does it make administrative law less provincial, but it also contributes to the evolution of
international law and comparative law. Let us examine the three theoretical contributions
of GAL. First, it can contribute to ‘the progress of administrative law scholarship.40
While ‘administrative law has been largely parochial’, because it used to be ‘based solely
on national rules’, GAL conceptualizes ‘administrative law beyond the state’.41 The
internationalization of administrative law is a fact. As a result of globalization processes,
‘the state has lost its exclusive power to regulate matters that lie within the traditional
realm of administrative law’.42 Local administrators can no longer limit themselves to the
knowledge of domestic law, but must be familiar with a broader set of legal frameworks.
Moreover, international law poses vertical constraints on the state right to regulate,
‘introducing global interests into the decision-making processes of domestic authori-
ties. . .’43 International rules also ‘bring about change in domestic governance institutions
and practices’;44 adherence to these international regimes ‘adds[s] a circuit of ‘external
accountability,’ forcing domestic authorities to consider the interests of the wider global
constituency who is affected by their decisions’.45 The internationalization of administra-
tive law makes administrative law less provincial, attuning it to norms and values shared
by the international community, such as the respect for human rights and the fight
against corruption among other globally salient issues. Additionally, the internationaliza-
tion of administrative law can protect individuals against abuses of power by domestic
authorities, and promote administrative responsiveness to the public interest. Therefore,
the internationalization of administrative law has the potential to humanize national
administrative law, improving its efficiency, effectiveness, and, ideally its responsiveness
to human needs; it can challenge national administrative law to find new ways to protect
individuals against abuses of power. In parallel, GAL has provided administrative law
scholars with a new field of inquiry.46
Secondly, GAL can contribute to the progress of international law. Global admin-
istrative law constitutes ‘a discrete set of lenses through which to understand reality
and a distinct toolkit with which to dissect such reality’.47 Such flexible theoretical
framework allows scholars and practitioners to look at international law with fresh
eyes, critically assess it in the light of administrative law concepts, and ‘identify
40
Cassese (n 19), 468.
41
Christoph Möllers, ‘Ten Years of Global Administrative Law’, International Journal of
Constitutional Law 13 (2015) 469–72, 470.
42
Daphne Barak-Erez and Oren Perez, ‘Whose Administrative Law is it Anyway? How Global
Norms Reshape the Administrative State’, Cornell International Law Journal 46 (2013–2014) 455 at
460, focusing on the way in which international norms reshape domestic decision-making processes.
43
Stefano Battini, ‘The Procedural Side of Legal Globalization: The Case of the World
Heritage Convention’, International Journal of Constitutional Law 9 (2011) 340, 343.
44
Mavluda Sattorova, International Investment Treaties and the Promise of Good Governance:
Norm and Institutional Design, Internalisation, and Domestic Rule-Making (European Society of
International Law, 10th Anniversary Conference, Vienna, Conference Paper No. 11/2014, 2014), at
3 available at http://ssrn.com/abstract=2546404.
45
Battini (n 43) at 364.
46
Paul Craig, UK, EU, and Global Administrative Law – Foundations and Challenges
(Cambridge: Cambridge University Press 2015) 568.
47
Joseph H.H. Weiler, ‘GAL at a Crossroads: Preface to the Symposium’, International Journal
of Constitutional Law 13 (2015) 463–64, 463.
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structures’ in the chaotic development of international relations.48 As Weiler points out,

GAL has ‘introduced a methodology with which to discuss, critique and . . . reform’
the operation of international organizations.49 While this is not to say that GAL
constitutes the perfect or ultimate methodology or theoretical framework by which
to investigate international law,50 it contributes to the mosaic of existing methods in
approaching such an investigation. Therefore, GAL has provided international lawyers
with new methods of inquiry for examining their field. More substantively, as the
function of administrative law is generally to protect individuals against the excessive,
arbitrary, or unfair exercise of public power, GAL can perform a similar function at the
supranational level,51 introducing checks and balances and humanizing international
law. It can help scholars ‘to better understand the functions’ and limits of international
organizations and adjudicators, as well as to identify more easily ‘legal instruments
to enhance their legitimacy, accountability, and effectiveness’.52 By enhancing the
legitimacy, accountability, and effectiveness of global regulation, GAL can promote
the (global) commonweal.53
Thirdly, and perhaps more unexpectedly, GAL is contributing to the renaissance of
comparative law. In order to identify general principles of international law, international
law scholars have traditionally relied on comparative surveys.54 Administrative law schol-
ars are also familiar with comparative law, traditionally comparing two or more public
systems to assess their own. GAL merges these parallel traditions. It relies on different
domestic systems in order to find various general principles of administrative law through
which to evaluate the operation of international organizations and international courts
and tribunals.55
In summary, as a method, GAL offers scholars and practitioners a singular way of
‘mapping the global disorder of normative orders’:56 it takes into account the shifting
boundaries between different legal fields and the gradual fading of the private/public,
national/international dichotomies that have traditionally characterised such legal fields. It
is also a useful tool for taking into account the phenomenon of the ‘glocalisation’ of law57
48
Möllers (n 41), 472.
49
Weiler (n 47) 463.
50
But see Casini, (n 16) at 475, arguing that ‘Thus, among the numerous attempts to classify
IOs and international regimes, the one based on GAL appears to be most helpful in understanding
the global legal space.’
51
Benedict Kingsbury, et al. ‘Global Governance as Administration: National and
Transnational Approaches to Global Administrative Law’, Law and Contemporary Problems 68
(2005) 1–13, at 5.
52
53
Richard B. Stewart, ‘The Normative Dimensions and Performance of Global Administrative
Law’, International Journal of Constitutional Law 13 (2015) 499–506.
54
General principles of law are a source of international law. See Art. 38(1) of the Statute of
the International Court of Justice.
55
Giulio Napolitano, ‘Going Global, Turning Back National: Towards a Cosmopolitan
Administrative Law?’, International Journal of Constitutional Law 13 (2015) 482–85, 482, suggest-
ing that GAL is ‘open[ing] up a new frontier of cosmopolitan administrative law’.
56
Neil Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of
Normative Orders’, International Journal of Constitutional Law 6 (2008) 373–96.
57
See Gunther Teubner, ‘“Global Bukowina”: Legal Pluralism in the World Society’, in
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that is, the oscillation of regulation between the global and the local levels.58 Finally, as an
academic endeavour, GAL is a well-organised cosmopolitan project that now unites schol-
ars from different parts of the world and with different expertise. It has stimulated a range
of international workshops, conferences, and publications that have contributed thought-
provoking inputs to international, administrative, and comparative law scholarships.
AGAINST GAL
The fuzziness and conceptual indeterminacy of GAL make it a difficult phenomenon to

scrutinise and critically assess. Nonetheless, critical views abound.59 The various criticisms
can be clustered along three different poles. First, critics contest the conceptualization
of GAL as a new branch of law. Second, they allege that, as a method, GAL remains
structurally conservative. Third, they contend that, as a project, GAL has a hegemonic
bias. This section will briefly scrutinize these criticisms.
The first set of criticisms centres on the defective legal character of GAL. Proponents
of GAL suggest that a growing body of global administrative law, based on largely
procedural principles of transparency, participation and review, is emerging to promote
greater accountability. However, critics contest the legal nature of GAL. While Kingsbury
has proposed to rely on a broad notion of ‘law’,60 others contend that GAL cannot be
considered as ‘law’; because there is no legislator or public administration in the proper
sense of these terms under international law.61 Moreover, ‘a universal set of administrative
law principles is difficult to identify.’62
Second, critics argue that ‘[t]here may be an inherent structural conservatism’ in GAL
as a method of inquiry, as it ‘takes a certain set of governmental institutions for granted,
and works to reform them through the introduction of such features as transparency,
accountability, or judicial review’. Such a reformist approach, however, takes it for granted
that it is possible to reform certain institutions from the inside rather than replacing them
with something else. Therefore, critics contend that GAL risks ‘provid[ing] more legiti-
macy to a practice than it deserves’ by ‘suggest[ing] certain modest institutional reform
Gunther Teubner (ed.), Global Law without a State (Aldershot: Dartmouth 1994) 3, defining
‘glocalisation’ as the parallel coexistence of the local and the global level of governance.
58
Rostam Neuwirth, ‘Governing Glocalisation: “Mind the Change” or “Change the Mind”?’,
Hokkaido Journal of New Global Law and Policy 12 (2011) 215–55.
59
See e.g., Carol Harlow, ‘Global Administrative Law: The Quest for Principles and Values’
(2006) European Journal of International Law 17 (2006) 187–214, at 194; Bhupinder S. Chimni,
‘Co-option and Resistance: Two Faces of Global Administrative Law’, N.Y.U. Journal of
International Law & Politics 37 (2005) 799; Kate Miles, The Origins of International Investment
Law: Empire, Environment and Safeguarding Capital 335 (Cambridge: Cambridge University Press
2013).
60
Benedict Kingsbury, ‘The Concept of “Law” in Global Administrative Law’, European
Journal of International Law 20 (2009) 23–57.
61
Ana Gouveia Martins, ‘Global Administrative Law: A New Branch of Law or a Quest for an
Academic Grail?’, E-Pública — Revista Electrónica de dereito público 6 (2015) 1–28, at 3, arguing
that Global Administrative Law represents nothing more than a doctrinal project and ‘a legal holy
grail’, and that, therefore, it is not possible to understand it as a new branch of law.
62
Harlow (n 59) 187.
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to be sufficient’ and ‘turn[ing] an institutional vice into a virtue’.63 In addition, some

critics question whether bureaucratizing international law necessarily benefits citizens; to
the contrary, they argue that such processes ‘benefit those who can afford to use them,
normally states and multinational enterprises’.64
Third, far from being a ‘neutral’ approach, critics argue that GAL has a distinct
agenda,65 with clear expectations about how governance should proceed. The concepts
used by GAL, such as transparency, participation, and proportionality among others are
drawn mainly from Anglo-American and continental administrative law. This means that
GAL impels states to conform to principles derived from a limited set of states and to
adopt particular principles of good governance. Therefore, critics question whether GAL
constitutes a form of ‘legal imperialism’, understood as the grafting onto the global level
of hegemonic Western values. Any legal framework, including administrative law, is ‘the
product of a political context;66 administrative laws are domestic constructs and reflect
the economic, social, and cultural choices of domestic constituencies. If GAL attempts to
export the administrative law peculiarities of ‘a certain type of western, liberal model of
the state (and its capitalist model of development)’, it ‘could be perceived, in developing
countries as an instrument to reproduce the dominant position of advanced industrialised
countries and their economic actors’.67 Local laws that are not market friendly or that
pursue important non-economic values, such as environmental protection, and public
safety among others, may not be regarded as ‘good’ laws. Therefore, some scholars suggest
that GAL should not rely on methodological nationalism;68 rather, it ‘should draw, as far
as possible, on cross-cultural principles’.69 However, the question remains as to whether
legal transplants can be imposed, and whether their ‘redistributive and constraining
impact on developing economies, state policies, and individual freedoms’ are acceptable.70
CRITICAL ASSESSMENT
Global administrative law presents both opportunities and dangers. As a method,

GAL offers an opportunity to approach international law using administrative law
tools and identify common patterns and structures. Critically assessing the evolution
of international law under administrative law criteria such as those of proportionality,
reasonableness, standards of review and others can be a fertile endeavour. Scholars
belonging to both international and administrative law have produced inter-disciplinary
63
Möllers (n 41) 471.
64
Harlow (n 59) 211.
65
Mario Savino, ‘What if Global Administrative Law is a Normative Project?’, International
Journal of Constitutional Law 13 (2015) 492–8, at 492.
66
Möllers (n 41) 471.
67
Francesca Spagnuolo, ‘Diversity and Pluralism in Earth System Governance: Contemplating
the Role for Global Administrative Law’, Ecological Economics 70 (2011), 1875–81, 1875. See
also Harlow (n 59), noting that ‘administrative law is primarily a Western construct, protective of
Western interests. It may impact unfavourably on developing economies’.
68
Cassese (n 19) 467, stating that ‘it is not possible to rely on methodological nationalism’.
69
Spagnuolo (n 67).
70
Savino (n 65) 492.
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studies,71 and therefore it is clear that GAL can constitute one of the available methods
to investigate international law.
As a scholarly endeavour, GAL has been successful, in terms of opening new fields of
academic enquiry and ‘alter[ing] our intellectual landscape in some quite decisive ways’.72
As Marks points out, ‘the first and perhaps most striking achievement’ of the proponents
of GAL is that ‘they have . . . invited us to think about how seemingly disparate issues,
structures and processes may be connected.’73 By publishing scholarly outputs and organ-
ising international workshops, the proponents of GAL have nurtured healthy academic
debates.
However, this is not to say that GAL should be idealized as the sole, let alone ultimate,
method for studying international phenomena. Like any other method, unavoidably,
GAL also presents pitfalls. As a mode of investigation GAL risks presenting a Western
bias in assuming how good governance should be; indeed, good governance can be
a patronizing concept.74 For instance, Kate Miles argues that ‘the current framing of
investor–state arbitration as the embodiment of good governance and the rule of law
is representative solely of the perspective of political and private elites’.75 Despite the
popularity of domestic administrative law analogies among international law scholars,
these cannot be derived from a limited number of countries. If analogies are derived from
very few Western states only, and GAL aspires to globalize them, then there is a risk of
hegemonic bias. There is also an associated risk that GAL therefore tends to maintain
the established order.76
Generally, then, GAL can constitute a useful method for approaching international
law, provided that it is not conceived as the sole or ultimate method for scrutinizing
global governance. International law requires ‘epistemological pluralism,’ that is, different
methods of enquiry. Only the juxtaposition of different methods and approaches can help
scholars and practitioners to decipher the complexity of international law.
CONCLUSION
The recent expansion of international law, the proliferation of international organiza-

tions and the growing number of international courts and tribunals pose new challenges
to international law scholars and require new perspectives. Global administrative law
constitutes a new approach for dealing with, and making sense of, this complexity. This
chapter identified three basic meanings for GAL: as a method, as a project, and as an
alleged new legal order. It then highlighted the pros and cons of GAL. As a method, GAL
can constitute a useful toolkit to approach the increasing complexity of international
71
Napolitano (n. 55), 483, noting that ‘In the global administrative law project, administrative
lawyers established an unusual alliance with international lawyers.’
72
Susan Marks, ‘Naming Global Administrative Law’, New York University Journal of
International Law and Politics 37 (2005), 995–1001, at 1001.
73
Ibid. at 995.
74
Miles (n 59) 335.
75
Ibid.
76
Marks (n 72) 998, cautioning that ‘progressive concepts can become pacifying ideologies.’
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law. It helps in mapping the contours of international law while also contributing to the
evolution of administrative law. It can also contribute to the development of comparative
law by opening new horizons to the discipline. Therefore, GAL has stimulated fruitful
academic debate.
However, like any other method, unavoidably, GAL also presents pitfalls. This mode
of investigation risks presenting and reproducing a Western bias about the characteristics
of good governance should be. Moreover, questions remain as to whether GAL even
constitutes a new branch of law. Critics also point out that it may have some structural
conservatism. Importantly, to detect general principles of law any comparative legal
analysis must be extensive and representative, albeit not necessarily uniform or universal.
If GAL attempts to export the administrative law peculiarities of a limited number of
liberal states, then it could be perceived as an imperialist project.
In conclusion, this chapter has sought to demonstrate that while GAL certainly
constitutes a useful approach to studying international law, it does not represent the
sole or the ultimate method for approaching the same. Rather, international law requires
‘epistemological pluralism,’ that is, different methods of enquiry. Only the juxtaposition
of different methods and approaches including, but not limited to, GAL can help scholars
and practitioners to decipher the complexity of international law.
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20. The rule of law and feminism: The dilemma of
differences
Anna Loretoni
As underlined by many legal theorists, the concept of the ‘rule of law’ represents an elusive
notion, characterized by formalistic and substantive interpretations of the phrase. If the
‘rule of law’ is intended in a strictly formal sense, there is no reference to the content of
the law and its procedures should possess the characteristics of generality, equality, and
certainty. On the other side, a substantive conception of the ‘rule of law’ includes a judg-
ment about the justness of law itself by referring to the rights that are said to be based
on, or derived from, the ‘rule of law’.1 The feminist perspective on the ‘rule of law’ seems
to belong to the second, substantive interpretation of the phrase, although according to a
gendered approach, law in general represents an ambivalent and controversial object, with
feminists adopting different and contrasting opinions on its function and utility. Going
beyond the mere formal sense of the ‘rule of law’, for some feminist scholars, law can be
an instrument for empowering women and recognizing their rights in fulfilling a complete
citizenship. For others, it has been seen as one of the most dangerous instruments of patri-
archal culture, representing a particular male-clothed view of the society. More generally,
and without reference to the concept of gender, Jürgen Habermas stressed that ambiguity
is constitutive of law: legal obligations both constrain and set free at the same time.2 After
the so-called ‘emancipationist feminism’, devoted to an embrace of the potentialities on
the basis of a concept of equality as assimilation and homogeneity, the ‘feminism of dif-
ference’ seems to confirm this ambiguity. Indeed, the ambivalence of the legal discourse
can be often observed among scholars endorsing the ‘feminism of difference’ approach,
and gives rise to two strands of thought: some authors, despite their cautious approach to
law, are willing to critically exploit its potential, whereas others believe that law is unable
to properly include the specificity of women’s liberty.
The introduction of the concept of gender in the various disciplines has been very
productive in transforming the essential features of research paths and the concepts as
well. This is due primarily to the intrinsic deconstructive strategy of the gender lens, able
to disclose the hidden elements of the blind and universalistic way of thinking of the
diverse disciplines.3 The common trait of feminist thought, from its philosophical to
its psychological and political-legal versions, is the critique of the idea of universality and
1
See P. Costa and D. Zolo, (eds), Rule of Law, History, Theory and Criticism, Springer 2007.
2
See J. Habermas, Faktizitat und Geltung, Suhrkamp, Frankfurt a.M. 1992.
3
On the concept of ‘deconstruction’, proposed by the French philosopher J. Derrida and
restated by gender studies, see J. Scott, ‘Gender. A Useful Category for Historical Analysis’, The
American Historical Review, XCI, 1986, 5. On the relevance of the ‘deconstructive strategy’ within
gender studies see also, A. Loretoni. Ampliare lo sguardo. Genere e Teoria politica, Donzelli,
Roma 2014.
333
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neutrality, typical of liberal thinking and deeply embedded in its theoretical paradigms.
Through a process of deconstruction, feminism has been able to identify within law, espe-
cially within the neutral and impartial conception of legality, typical of liberal thinking, a
form that confers an appearance of neutrality to theoretical categories that in fact entail
an implicit adherence to a given social and political model of individual.
The feminist approach to law did not necessarily adopt a critical stance in women’s
earlier reflections on law and politics. The emancipationist feminism viewed legal
discourse, in particular the attainment of political and social rights, as conducive to a
more egalitarian condition for women within society leading to their full citizenship. In
that context, the theoretical issue was mere formal inequality and the aim was to extend
to women the range of rights once reserved exclusively to men. In political discourse, too,
women’s condition was conceived not in terms of its specific difference – as has been the
case since the 1980s – but in terms of exclusion from a world that was not challenged
or questioned in itself, but rather only criticized for its partiality. The demand was for
inclusion and no radical changes were envisaged. Nevertheless, ever since ‘difference’ has
become a value, and as modern feminism distanced itself from so-called emancipationist
feminism, women’s thought has sought to unveil – behind paradigms, categories, and
values – the apparent neutrality of the legal discourse, to show how, at its core, reigns
a specific normative vision of the agent. Anything but sexless, neutral, colourless, and
destitute of a specific membership to a social class, the modern individual in Western
societies is heavily conditioned by all these factors: the legal subject has taken up the
characteristics established by society’s dominant groups.
QUESTIONING THE FOUNDATIONS
In this perspective, the reflections of the American legal scholar Catharine MacKinnon
are extremely insightful.4 Although she expresses a moderate trust in law as an adequate
instrument to improve women’s status, she also questions its premises and principles.
As is well known, besides striving for the acknowledgement of pornography as an
offence against women, MacKinnon has mainly dealt with the difficult issue of sexual
harassment. With respect to the latter, her position may be ascribed to the feminist line
of thinking that does not deny the utility of law. A law against sexual harassment gives
victims the possibility of publicly voicing the injustice they have suffered, and provides
them with a legal ground on which they may obtain compensation. The innovation is
indeed significant: a kind of behaviour once deemed to be normal is now construed as an
offence. The link between the legal and the social is clear in this case: the legal prohibition
of sexual harassment has made it not only legally but also socially unacceptable. Before
the intervention of law, the facts constituting the offence had no social existence and had
no cognitive form or coherence: such an injury against women was simply something that
normally happened. Once the law recognized sexual harassment as a practice of sexual
discrimination, it removed it from the ‘elementary language’ used by women to express
4
C. MacKinnon, ‘Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence’,
Signs, 8 (1993); Eadem, Are Women Human? Belknap Press, Cambridge-London 2006.
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The rule of law and feminism 335
sexual abuse, and gave it a shape, a background in a number of experiences accumulating

and connecting with each other.
In this approach, we find some common traits shared by the feminist critique of the rule
of law and the critique offered by critical legal studies. Both theories question the concept
of neutrality, not only as regards law-making but of judicial functions as well. Not even
the judge is a neutral being: in construing the law, the judge makes a discretionary choice
of a given point of view (among the many left open by written law) which best fits her
individual preferences. Moreover, the particular performance of a judge is far from the
normativist scheme of the objective and mechanical application of law. Therefore, if the
judge cannot be seen as the guarantor of the rule of law, one might wonder what role does
or should she perform. The answer provided by feminists such as Martha Minow is similar
to that suggested by Duncan Kennedy; the detection of the political aims lying behind
the mystifying facade of law offers the premise from which judges may be corrected and
required to do ‘the right thing’; to have legal programmes which are better than the legisla-
tion’s current ones and even better than the ones endorsed by current judges.5 Hence, like
critical legal studies, some feminists turn the judge into an actor of social change: a good
judge is well aware of the discretionary power at his disposal and acts pragmatically so as
to favor reform. A commitment to programs of ‘affirmative action’ for women, to a fairer
social redistribution and a greater decentralization of political and economic power with
a view to a wider democratic participation; these are all aims that fall within the radical
agenda of critical legal studies and feminism close to them.
Questioning the current legal regulation of the relationship between the sexes, feminist
thinking redefines the private ambit by criticizing the distinction between public and
private domains.6 In analyzing the family, feminist thinking has particularly focused on
the notion of a ‘patriarchal system’ that places women within the domestic ambit of
childbearing and care, the reign of biological necessity governed by physicality. Instead,
the public sphere, the polis, where male subjectivity is constructed, represents the kingdom
of rationality and its political and economic relationships, which goes beyond the natural
givens of the domestic sphere of affections. These two separate spheres are complemen-
tary with respect to a system that hierarchically orders the genders’ respective functions
and identities. As regards such a structuring/separation, law historically chose either not
to intervene, leaving outside its scope the family domain, considering it an autonomous
sphere, or to strengthen and legitimate the patriarchal model. In both cases, patriarchy
has been maintained as a sort of ‘state of nature’. The 1970s feminist slogan ‘the personal
is political’ must be interpreted in light of this settlement: the aim was to bring to the
foreground a number of family relationships that had traditionally been excluded from
public observation and thus kept unaltered because confined to an impermeable private
domain. While the political arena has been subject to radical changes for centuries, the
power structure between genders within the family has remained essentially intact. The
uncovering of a world previously hidden from the political scene and legal discourse has
5
M. Minow, Making All the Difference. Inclusion, Exclusion and American Law, Ithaca (NY)/
London, Cornell University Press, 1990; D. Kennedy, A Critique of Adjudication, Cambridge
(MA): Harvard University Press, 1998.
6
J. B. Elshtain, Public Man Private Woman, Princeton University Press, Princeton 1991.
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shed light on the collective nature of women’s experiences within the family, and has led
to the sharing – this being literally meant as ‘placing in common’ – of the character of this
condition. Thus, by making the private public, free and responsible choice, which seemed
a prerogative of the public sphere, has now become possible in the family sphere, too. I
believe that McKinnon’s criticism of the idea of privacy must be interpreted in this light:
if privacy is employed as an instrument for isolating women, then it will be perfectly suited
for perpetuating male dominance over women – and not only over their bodies – and will
risk supporting the non-intervention of law within the family sphere. The private ambit,
which isolates and separates us, is thus a political ambit, a common ground for inequality
and marginalization.
The idea that what is presented as natural and beyond history and culture is, in truth,
socially constructed, including gender identity and relations, and has thus been gradu-
ally embraced by feminist thinking. In Susan Moller Okin’s view, gender construction
mainly occurs socially and is explicable in terms of roles, especially women’s function of
primary parent.7 The 1980s emphasis on a specific female capacity to be responsive to
particular contexts through the dimension of care, by virtue precisely of women’s genera-
tive qualities, is thus radically rejected. According to the above authors, this position has
involuntarily strengthened the stereotypical idea of women and has further contributed to
the separation of the masculine and feminine spheres. At least up and until the first half
of the twentieth century, the idea of a separate sphere, belonging by nature to the female
gender, was quite widespread across Western political and legal thought. In the case of
the United States, which is likely the most thoroughly scrutinized area in this context,
the decision in the case Bradwell v. Illinois (1872) stands out. Invoking the Fourteenth
Amendment, passed a few years earlier (1868), Myra Bradwell asked to be admitted to
the Bar of Illinois, seeking access to the legal profession that had been previously denied
to women. The US Supreme Court upheld the decision of the Supreme Court of Illinois,
which had denied Myra Bradwell, as a woman, the right to join the Bar. The Supreme
Court’s reasoning is interesting precisely because, rather than narrowly construing the
constitutional guarantees embedded in the Fourteenth Amendment, it resorted to special
reasons justifying different treatment of women, on the basis of their belonging to a
different and separate sphere, i.e. the family. By appealing to allegedly notable differences
between men’s and women’s fields of action, the opinion of Judge Bradley perfectly
mirrored the ideology of the separate sphere. Women belong to the domestic ambit and
their role is to take care of the family: given that ‘nature’ imposes this, by ‘the law of God’
or by ‘divine will’, the law cannot be expected to intervene in this respect. In the name
of a family model grounded on the patriarchal principle of inequality, this judgement
established the dependent status of women, together with their exclusion from civil and
political life.8
The separation of spheres has therefore allowed the family to be seen as a non-integral
part of the social world. Thus, the incoherence between an egalitarian outer world and a
blatantly unequal family did not trouble most theorists who did not consider the private
7
S. Moller Okin, Justice, Gender and the Family, New York, Basic Books, 1989; F. Olsen, ‘A
Finger to the Devil: Abortion, Privacy, and Equality’, Dissent, 38 (1991), 3, pp. 377–82.
8
Moller Okin, ibid.
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ambit to be a specific concern of their thinking. According to the patriarchal system,

women and minors find their social place within the home, seen as their natural and
biological environment, whereas men are set within the domain of political and economic
relationships. The latter is the realm of freedom, a freedom construed as emancipation
from necessity, as a higher setting reserved for the development of the species. Underlying
the exaltation of women’s maternal role there was the wish to privatize the family, to make
it separate from the market that, starting from the Industrial Revolution, was establishing
itself as an area where private interests, typical of individualistic ethics, were to prevail. In
the meantime, the family has been gradually perceived as an area of self-sacrifice, and of
cooperation, able to turn individuals’ selfishness into an ethics of altruism. For this reason,
as it has already been pointed out, this separation does, in fact, unite two complementary
worlds. According to this approach, law has been sometimes the perfect partner for a
culture that views women only as mothers and wives, subject to their patriarchal power.
INDIVIDUALISM AND SOCIAL RELATIONS
The inclusion of a different gender identity within their discourse allowed gender studies
in law to criticize the notion of equality as assimilation within a given context. In particu-
lar, given that law defines what is legitimate and what is not, it applies a binary logic with
very strong effects in terms of exclusion and discrimination. What feminism demands
from the traditional logic of law is an increased sensitivity to the specific character of
subjective identities, the abandonment of false universalism and the adoption of an
approach able to see individuals in the context of their specific social relations. Martha
Minow’s ‘social-relations approach’ is in line with this trend.9 By acknowledging the
dilemmas that result from the plethora of differences characterizing each social context,
Minow proposes a legal model that no longer functions in terms of opposing alternatives
rooted in generalizing categories. She transposes the peculiarities of the various situations
and contexts to the normative level, and centres her approach on the specific social loca-
tion of each individual. Here, feminism definitively breaks away the classical paradigm of
liberal law and questions the very model of individual rights, seeing them as a reflection
of the specific liberal vision of the individual. Many feminist philosophical approaches,
from Carol Gilligan to Martha Nussbaum, from Virginia Held to Eva Kittay, tried to
construct a new individualism, based on the idea that the individual is born in a condi-
tion of vulnerability and dependency. The image of free and independent individuals is a
fiction that is denied by the real context: we do not live in isolation, but on the contrary
in a condition of inter-relations and reciprocal dependency, where not only interests but
also needs shape the individual’s life.10
9
M. Minow, Making All the Difference, (n 5) pp. 173–224.
10
On this point see Carol Gilligan, In a Different Voice, Cambridge (MA): Harvard University
Press, 1982; S. Benhabib, ‘The Generalized and the Concrete Other: The Kohiberg-Gilligan
Controversy and Feminist Theory’, in S. Benhabib and D. Cornell (eds), Feminism as Critique,
Minneapolis (MN): University of Minnesota Press, 1987; V. Held, Feminist Morality. Transforming
Culture, Society and Politics, University of Chicago Press, Chicago 1993; J. Tronto, Moral
Boundaries. A Political Argument for an Ethic of Care, Routledge, New York 1993.
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Therefore, according to this new perspective but within this same rights discourse, the
ideas of ‘care’ or ‘responsibility towards’ have been advanced by arguing that they are
better suited to represent individuals’ relational nature and the characteristics of specific
situations in which they find themselves. According to Mary Wolgast, since individuals are
atoms indistinguishable one from the other, their rights must be equally so: in other words,
the concept of individual rights is a natural consequence of atomism.11 Here, emphasis is
placed on the discourse of rights, which increasingly becomes a conceptual grid used to
interpret reality as a whole: a grid not lacking in value or utility but with limits that should
be recognized. Claiming a specific right puts its holder in a position entitling him or her
to demand something from another being. However, the problems with ‘equal’ law stem
from the assumption that relationships among individuals take place between autonomous
subjects who are, above all, in a position of absolute parity. According to this model, each
individual is responsible for himself or herself, even when he or she is in a blatantly inferior
position. A telling example of such logic is the case of patients’ rights, where the doctor’s
responsibilities towards the patient are seen as unrelated to the latter’s necessary condition
of dependency on the former. The patient is thought of as if he or she is a healthy person
and the specifics of his or her conditions are not reflected on the normative level. By refer-
ring to the common humanity connecting individuals, liberal theories of justice equally fail
to consider individuals in their distinctive particularities. It seems that what is relevant is
not what differentiates a given individual and makes her a unique being, but rather what
she shares with all other individuals and what makes her similar to them.
The individualistic structure of the modern theory of rights derives from the very nature
of modern constitutions, which are grounded, as Habermas suggests, on the rationalistic
jurisprudence that sees citizens as deciding among themselves to set up a community
ruled by positive law. Similarly, it is the individual person that is the holder of individual
rights, independently of her social relations and her belonging to diverse groups. While
at the legal level only individual rights can be brought before a court, in the political
arena it is always collective players (not individuals) that interact and debates on choices
affecting the community or some of its parts. It is precisely this increasingly apparent
reality in modem democracies that has caused deep questioning of the idea of the rule of
law and especially of the liberal conception of rights as exclusively individual. As is well
known, in his debate with Charles Taylor on the need to acknowledge collective forms
of identity, Habermas claimed that the rule of law cannot require that the state actively
promote given conceptions of a ‘good life’ – as advocated by communitarians – not even
on the basis of the alleged falseness of liberal neutrality.12 Nonetheless, he believes that
the protection of individuals often entails the protection of the social contexts where
individual identities may be guaranteed. In such cases, the formalism of the rule of law is
not upheld sic et simpliciter; its action for the defence of individuals is made more complex
by the awareness of the existing links between the individual and collective domain. In
the case of the ‘welfare state’, for instance, the traditional conception of the rule of law
as merely the protection of the individual from the always-likely spillover effect of power
11
M. Wolgast, The Grammar of Justice, Ithaca (NY), Cornell University Press, 1987.
12
Ch. Taylor, Multiculturalismus und die Politik der Anerkennung. Mit einem Beitrag von J.
Habermas, Frankfurt a.M., Fischer 1993.
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is superseded. As Habermas argues, by focusing on the intimate link between the rule of
law and democracy, it becomes obvious that the ‘system of rights’ cannot ignore either
social inequalities or cultural differences; individual holders of rights are endowed with
identities that ought to be conceived of in an intersubjective manner. Individuals (and
thus also legal subjects) acquire an identity only through phenomena of social interaction.
The above perspective underlines the importance of different life contexts in which
individuals effectively realize their recognized rights. Therefore, it is not necessary to
employ – as proposed by Taylor – a counter-model to correct the traditional individualis-
tic understanding of the system of rights. In other words, formalistic liberalism, whereby
individuals are conceived of as monads, despite its short-sightedness, has self-corrective
features that save it from having to abandon the individualistic paradigm of the rule of law
in the name of acknowledging collective identities; an abandonment that in the end, could
produce even more serious damage to individual freedoms. Starting with a non-atomistic
conception of individuals that questions the traditional separation between the public and
private domains, Howe elaborates the interesting formula of ‘social injury’.13 This stands
for a violation having a collective effect, for instance as regards women as a group. A new
way of interpreting the single offensive act is introduced into the classical liberal language
of law: the offensive deed is not only the act of an individual person against another,
but rather is something in a specific social and political context that goes beyond the act
itself. Although only individual rights are brought before legal courts, by questioning the
boundaries between the public and private domain, the concept of social injury allows an
individual violation to be traced back to the wider context of women’s social status, thus
shedding light on what earlier had been confined to the domestic realm and construed
only as an individual experience. In this respect, the private domain is put in a different
relation with the collective and public dimension of women’s experiences. This approach
highlights the fact that the power of law, and its effective impact on the expectations
of social actors, can also be assessed on a symbolic level. If norms are symbols, actors
seeking to change norms have not only practical but also symbolic purposes. It is precisely
this dimension that becomes decisive in the social transformation and full recognition of
women’s subjectivity that the ‘feminism of difference’ is struggling for.
Finally, in reflecting on the limits of the rights-oriented approach, and its inability to
always protect and support women, Martha Nussbaum set out the so-called capability
approach, not to reject the first model, but to reinforce it using the concept of capability.14
According to her, the crucial question becomes no longer ‘Which rights is this woman
holding?’ but ‘What can this woman do?’, shifting the analysis from the context of mere
entitlement to that one of endowment. The meaning of human rights, suggests Nussbaum,
is vague, and the question of their foundation is deeply questionable, producing philo-
sophical dissent. In addition, beyond the western context, the term ‘right’, or the idea itself,
to get a right, are not fully understood (or understandable). From China to many African
countries the attention towards individual rights is a secondary issue, and collective
13
A. Howe, The Problem of Privatized Injuries: Feminist Strategies for Litigation, London,
Routledge, 1991.
14
M. Nussbaum, Women and Human Development. The Capabilities Approach, Cambridge,
Cambridge University Press, 2000.
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dimensions as family, community, and State, represent the primary element of the human
relations. Conversely, the idea of capability is immediately understandable in the different
linguistic and cultural contexts, and is able to offer an intrinsic advantage in accommodat-
ing conflicts in multicultural societies. Furthermore, the weakness of the rights discourse
also derives from the centrality of negative freedom, as the main dimension of liberty
shaping this language. The fact that an endowment of rights can be granted without the
State’s intervention, and notwithstanding the obstacles deriving from market and private
actors, prompts a very thin approach to these rights. To evaluate political justice in a given
society, liberty, and equality, also in the specific form of gender equality, should be not
only recognized in the legal formal dimension, but also translated into acquired functions.
The absence of obstacles, i.e. negative freedom, is not the only way of evaluating the real
condition of individuals; conditions, that in general, and a fortiori in the specific case of
the women, need the active intervention by the political community. The commitment
on the part of political institutions is particularly necessary when individuals have to
transform the discriminating contexts in which they are living. By underlining capabilities
and functionings, Nussbaum is proposing a model of citizenship able to put all the rights,
be they the first-generation rights (civil and political rights), or second-generation rights
(economic-social rights), at the same horizontal level; not hierarchical ordered, but in a
condition of reciprocal implications. The indivisibility of the rights, restated by many femi-
nist scholars, is the basis for a deeper analysis of the condition of women, characterized by
asymmetries and discrimination. At the same time, adequate policies and better practices
to tackle the combination of economic inequalities and violence, need to be provided so
as to deal with the lack of opportunities and violation of female bodily integrity in both
developing countries and in liberal democratic societies as well.
DISTRIBUTIVE PARADIGM AND IMMATERIAL FACTORS
Among the many contradictions of the liberal political and legal paradigm, many feminist
thinkers have included the conception of justice as equal distribution of goods, including
rights, as if rights were goods to be equally distributed among individuals. To reduce
rights to goods or to conceive of them as property is not only wrong but detrimental to
understanding their role. Rather than being objects, rights are relationships and institu-
tionally defined rules: they establish what a person can do vis-à-vis another one and do
not refer to what the person materially possesses.15 Therefore, injustice is not the mere
withdrawal of a range of goods; rather – and much more problematically – it implies a
restriction of freedom and, above all, an injury to dignity. Therefore, to conceive of the
legal paradigm uniquely as a distributive paradigm for material goods is misleading: first,
because the distributive paradigm overlooks the institutional context of such distribution,
and takes it for granted; secondly, when the paradigm is extended to non-material ‘goods’,
15
The concept of ‘immaterial factors’ is related to the so-called ‘social constructivism’. See
P. L. Berger and T. Luckmann, The Social Construction of Reality. A Treatise in the Sociology of
Knowledge, New York, Doubleday, 1966. Immaterial factors are also at the basis of the definition
of poverty proposed by A. Sen, Inequality Reexamined, New York-Oxford, Clarendon Press, 1992.
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these end up being misrepresented. It should be specified that an ‘institutional context’

is construed as including, for example, the family, which is one of the main social units
affected by distributive issues. However, this arena is indeed taken at face value, without
questioning the roles that have crystallized within it over time. This, Iris Marion Young
argues, to refer to what are in fact processes, bonds, and relationships between individuals
as social goods misrepresents social justice, presenting them as static schemes rather than
social processes generating actual situations.16 This is, once again, due to the influence of
the classical paradigm of liberal individualism, whereby individuals receive goods or own
property rather than entering into relation with each other, or against one another.
Arguing from the notion of ‘oppression’, which is largely used by contemporary libera-
tion movements, including feminism itself as well as from black or lesbian perspectives,
the political discourse, cannot be reduced to the language of liberal individualism that
dominates legal theory and politics. Think, for example, of the oppressive conditions in
which women live: the mere awareness of the potential of becoming the victim of violence
just for being a woman is not only troubling but significantly restricts her freedom. Is it
reasonable to conceive of such experiences as cases of social injustice, or should we believe
that this does not significantly affect individual rights, opportunities, and self-esteem?
If we pay attention not only to individual acts of violence, but also to the social context
in which these acts take place and are somehow legitimated, we cannot but answer in
the affirmative to the above question. As a matter of fact, injustice stems from systemic
violence in that it targets women as members of a specific group. The oppressive nature
of violence does not lie in the direct victimization of the individual, but in the awareness
shared by all group members of being exposed to this risk precisely by virtue of their
collective identity. Hence, one wonders, what kind of solution is the distributive paradigm
able to provide? It may confidently be asserted that the distributive conception of justice is
the least apt to grasp the problem of discrimination against women because, among other
reasons, it begs the question of the political, legal, and cultural institutions that somehow
encourage, tolerate, or in any event allow such violence. By generally taking the context
of injustice for granted, distributive mechanisms do not bring any relevant correction
to the causes of injustice and indeed, objectively perpetuate the oppressive conditions
of disadvantaged groups or individuals who are only partially integrated within society
because of, among other things, their systematically devalued identities.
Two further theoretical points should be mentioned when the distributive paradigm
is being questioned: the first one has been proposed by Nancy Fraser in the context of
the critical approach to the theory of justice.17 Fraser connected the relationship between
distribution and recognition, underlining in this way the relevance not only of the material
factors (material goods) but also of the immaterial ones, connected to the concept of
recognition. Separated in the theoretical framework, both are closely intertwined in the real
context: injustice from an economic point of view goes hand in hand with the symbolic and
cultural discrimination, embedded in the social models of representation, interpretation,
16
I. M. Young, Justice and the Politics of Difference, Princeton (NJ), Princeton University
Press, 1990.
17
N. Fraser, Adding Insult to Injury. Nancy Fraser debates her Critics, London-New York,
Verso, 2008.
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and communication. Gender is one of the ‘ambivalent collectivities’, subject at the same
time at the two forms of injustice. In these cases, bridging the gap is quite not simple: on the
one hand, for economic injustices, we have to dissolve ‘difference’ in comparison to other
not discriminated groups; on the other hand, for symbolic and cultural injustices, ‘differ-
ence’ should be underlined and valorized. To manage this dilemma, politics and law are
faced with the necessity of minimizing the conflict between redistribution and recognition,
seriously taking into consideration the intersection of the discriminating axes.
The second point concerns the above-mentioned category of oppression proposed by Iris
Marion Young within the political and legal discourse. Five different faces of oppression
– exploitation, marginalization, lack of power, cultural imperialism, and violence – serve
to enlarge the analysis beyond the liberal individualistic approach, and in favour of a con-
sideration of the groups’ relevance, which Young emphasizes are overlapping. The common
belonging, being women as a group, does not represent the only dimension of injustice in
this analysis; questioning the idea of a unique perspective from which taking into account
oppression, this perspective therefore brings the theory face to face with other categories,
beyond gender. In other words, sexism should be considered in a closer relationship with
other forms of domination; women’s social standing, although showing some common ele-
ments, is also characterized by different discriminations, related to class, race, and religion.
The two last analyses offer a critical basis for recent proposals on Intersectionality.
Through a critical evaluation regarding the results of the politics of identity, and the
theoretical perspective of multiculturalism, some feminist scholars accordingly compli-
cate a single-axis analysis based on a only one dimension – be it cultural, gendered, or
religious – and concentrate on the very point of intersection, where the discriminating
dimensions cross, overlap and interact. Kimberlé Crenshaw was the first to adopt such a
perspective, showing how jurisprudence doesn’t see the intersection between gender and
race, which are interpreted on the contrary as two exclusive/excluding categories.18 As
demonstrated by the case of black women, the condition of discrimination belongs to two
different dimensions: to be women and to be black. The reformulation of the ‘single-axis
framework’ is necessary if we want to make laws on discrimination effective in facing
these challenges. Taking into consideration the complex reality of discriminated groups,
political theory and law must intersect the different elements, categories, and forms of
discrimination if they are to be rescued from the margins. This shift will produce advan-
tages not only for those groups, but for the whole society: ‘When they enter, we all enter.’
CONCLUSIONS
The traditional problem of the relationship between social and legal change is further
complicated by many feminist reflections on law. This problem essentially becomes more
radical and one wonders whether law qua talis can accommodate women’s discourse,
18
On Intersectionalism see: K. Crenshaw, ‘Demarginalizing the Intersection of Race and
Gender. A Black Feminist Critique to Antidiscrimination Doctrine’, Feminist Theory and
Antiracist Politics, 1989; L. McCall, ‘The Complexity of Intersectionality’, in Journal on Women in
Culture and Society, III, 2005, 3, pp. 1771–800.
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as well as the demands and aspirations for a new identity, such as the one reflectively
elaborated by the ‘feminism of difference’. Pace communitarians, this strengthens the
belief that female identity, quite likely more momentously than other modern forms and
experiences of identity, is above all an oppositional identity. Women are going to construct
their paths to identity mainly in contrast with the models offered by tradition, culture,
and religion, which first excluded them from the political arena, then confined them in an
encapsulation shaped by the private sphere. Nevertheless, the flight from liberal abstract
universalism cannot induce us to accept the idea of a subjectivity rigidly confined within
the traditional boundaries of the community, and whose individuals’ identity is founded
by ascription. This model is undermined by all forms of modern identity, even more by
the female one, which has developed precisely through radical criticism and dissent.
By relying on law’s traditional machinery, then, can we represent women’s freedom or
are we doomed to thwart their expectations? The question of the very role of law has
been particularly examined by Carol Smart but underlies the entire literature on women’s
issues, which shows mostly an ambivalent attitude towards law. Think, for example, of
the law against sexual abuse, or legislation on sexual harassment, or laws concerning
reproduction. In such instances, the real question at stake has often been whether the
legal discourse can be effective, rather than useless or even detrimental, as a means for
recognizing gender/female identity. In this respect, some radical feminist approaches have
focused on the notion of ‘legal void’, i.e. an area where law is indifferent or absent, unable
to achieve or preserve an area of freedom. Here, a position of radical distance from the
legal discourse is crucial. As an expression of patriarchal power over women, the rule of
law is said to be a useless or harmful instrument. By imprisoning women and their specific
situations within rigid categories and generalized standards, in the end the law turns out
to be formalistic, detached from reality and thus of no use. Moreover, there is skepticism
about criminal law as a remedy for certain injuries, since in many instances – e.g. sexual
abuse – the damage cannot be socially redressed through punishment alone. In such
cases, institutions should be able to offer a much more articulated solution. Apart from
punishing the offender, attention should be paid to the support needed by the victim
of the abuse. One of the reasons behind the many ‘shelters’ aimed at protecting women
against violence and maltreatment, planned and run by women’s associations with the aid
of local institutions, is the acknowledgement of the limitations of law or, more specifically,
of an exclusively criminal law approach. The scope of criminal law ought to be drastically
reassessed and many offences pertaining to interpersonal relations – sexual abuse, sexual
harassment, insult, etc. – should be dealt with by civil law. Based on interpersonal conflicts
which are often only contingent, law should be asked to provide for ‘extrajudicial’ solu-
tions and thus to be less invasive in certain spheres of life. That the burden of deciding
if legal proceedings are to happen in domestic violence cases often rests with the victim,
epitomizes a specific conception of the individual, grounded on responsibility and free
choice rather than on protection. Regarding such offences, the State has no higher inter-
est in punishing than that of the victim, and justifying punishment on the grounds of a
threat to the community cannot be considered adequate, in the absence of the victim’s
concurring will.
Beyond the legal discourse’s intrinsic tendency to standardization and formalism,
however, law’s capacity to modify the relations among genders by causing significant
power shifts in favour of women should not be underestimated. Think, for example, of
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the recognition of women’s self-determination in the reproductive field, which was made
explicit – albeit not without limitations – by abortion laws, not to speak of the symbolic
power inspiring this kind of legislation. At stake here there is a dynamic and transforma-
tive model of the law, according to which norms arising out of groups’ expectations (in
our case women’s) became able to bring about change and innovation. Nonetheless, we
must not forget that, when dealing with matters pertaining to the reproductive sphere, we
enter an area of strong differences, especially in terms of ultimate values, principles, and
Weltanschauung. This has led some authors to favour the cultural model of judge-made
law over a model that makes statute law the core of the legal system, since the former seems
to better fit the value-pluralism that is likely to become a key characteristic of democratic
societies. This model takes judge-made law to be more open and accommodating of
contexts and specific situations, more capable of considering different points of view and
of taking people for what they really are in their relationships of mutual dependencies.
Against the risk of granting judges an excessive freedom to make totally discretionary
decisions, stand the principles of democratic constitutions and the idea of a constitutional
rule of law. Such principles are thought to be the general coordinates within which judges
perform their role and social function. Nevertheless, it is not a matter of mechanically
applying the rules to the specific case by following a logical deductive process going from
the general rule to the individual case. This approach, originating in legal positivism,
would allow only for a ‘correct’ application of law, complying with the legislators’ true
intention. Instead we should accept a form of legal uncertainty, which ought not to be
understood as a degeneration resulting from judges’ excessive powers. It is the rule of law
itself that cannot but embody this new uncertainty, in a social and political context much
more diverse than that of the (conventional) liberal rule of law, it needs to become mild
and be patterned by reasonableness. The pressures put on law by ‘hard cases’ (the many
issues such as life, death, surrogacy, and bioethics, about which values and meanings often
sharply diverge), make the principle of law’s omnipotence both obsolete and undesirable.
We should try to transfer decision-making from legislative assemblies to judicial practice,
as an area of greater prudence, where it becomes practicable to mobilize a combination of
knowledge and context sensitivity, universality, and specificity. This approach stems from
the general gender perspective on the rule of law: by reducing the relevance of the concept
of the ‘sameness’ between people emphasized by rights analysis, a gendered approach is
still concerned with special accommodation in favor of women, disabled people and other
groups which cannot be treated as similar because different. Providing the same treatment
to all, the traditional approach to law denies special accommodation. For those who do
not match the picture of the abstract autonomous individual presupposed by the theory
of rights the application of the rights-based analysis can be not only unresponsive but
also punitive. As suggested by Martha Minow, rights-based analysis preserves rather than
alters the dilemma of difference. The contemporary debate on the rule of law appears to
make the issues of legal hermeneutics and the judicial function crucial, without forgetting
the role played by the public sphere where the performance of judges can remain subject
to critical discussion. The recognition of the positive element in judicial uncertainty opens
a space for the feminist politics of difference to thrive and make a real difference to the
lived experience of women.
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21. The rule of law and Islam
Jerg Gutmann and Stefan Voigt1
No other religion’s role in politics is as controversial as that of Islam – at least in Western

societies. It has been claimed that Muslims are more likely than others to voice opinions
that conflict with core elements of a free society, such as capitalism, constitutional democ-
racy, and the rule of law.2 Indeed, Muslim countries seem to struggle with establishing
democracy3 and the rule of law,4 while the acknowledgement and protection of minority
rights in particular are a constant concern in Muslim societies.5
A recent survey by the Pew Research Centre indicates that values expressed by large
numbers of Muslims around the world remain incompatible with the liberalism favored
in modern-day Western societies.6 Although Muslims in most parts of the world think
that women should decide whether they veil themselves, overwhelming majorities of
Muslims also say that a wife should always obey her husband. Furthermore, it is still
controversial whether women should have a right to divorce and whether sons and
daughters have the same inheritance rights. Even though a majority of Muslims sup-
port democracy and it is almost universally agreed that religious freedom is something
positive, the view that religion should play a role in politics is widely embraced among
Muslims. A majority of Muslims favor enshrining Shari’a in official state law and
specifically among those Muslims, honor killings and the death penalty for apostates
are widely supported.
This chapter is concerned with the question whether political Islam is compatible with
the rule of law. This question can be discussed on two levels: Is Islamic thought and
jurisprudence fundamentally compatible with the concept of the rule of law or is pursuing
1
The authors thank Moamen Gouda, Dina Rabie, and the editors of this handbook for valu-
able comments and suggestions.
2
Voigt, Stefan (2005). Islam and the Institutions of a Free Society. The Independent Review
10(1):59–82.
3
See: Rowley, Charles K. and Nathanael Smith (2009). Islam’s Democracy Paradox: Muslims
Claim to Like Democracy, So Why Do They Have So Little? Public Choice 139(3):273–99; Potrafke,
Niklas (2012). Islam and Democracy. Public Choice 151(1):185–92.
4
See: Gouda, Moamen (2013). Islamic Constitutionalism and Rule of Law: A Constitutional
Economics Perspective. Constitutional Political Economy 24(1):5785; Gutmann, Jerg and Stefan
Voigt (2015). The Rule of Law and Constitutionalism in Muslim Countries. Public Choice
162(3):351–80.
5
See: Berggren, Niclas, Christian Bjørnskov and Therese Nilsson (2017). What Aspects
of Society Matter for the Quality of Life of a Minority? Global Evidence from the New Gay
Happiness Index. Social Indicators Research 132(3):1163–92; Cooray, Arusha and Niklas Potrafke
(2011). Gender Inequality in Education: Political Institutions or Culture and Religion? European
Journal of Political Economy 27(2):268–80; Gouda, Moamen and Niklas Potrafke (2016). Gender
Equality in Muslim-Majority Countries. Economic Systems 40(4):683–98.
6
Pew Research Center (2013). The World’s Muslims: Religion, Politics, and Society. Available
at: http://www.pewforum.org/Muslim/the-worlds-muslims-religion-politics-society.aspx.
345
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both a contradictory enterprise? Moreover, how does Islam as practiced by Muslims (and
in Muslim societies) compare with the rule of law?
The rule of law can be considered a Western concept in a double sense. First, thinkers,
primarily originating from what is today referred to as ‘the West’, developed its conceptual
foundations. Secondly, when it comes to implementing the rule of law, it has been shown
that a country’s rule of law score is linked to the proportion of European descendants
among its current population.7 This association seems to suggest that the presence of
European descendants is conducive to the implementation of the rule of law. Over the
past decades, the rule of law has become something that almost everybody seems to
endorse. For our analysis, we use the concept of the rule of law as our normative bench-
mark, despite the possibility that it might still not be endorsed by some leaders, especially
outside the Western world.
Given that the rule of law has been a prominent concept in governance circles for quite
some time, analyses of the compatibility of Islam and the rule of law are surprisingly
scarce. After presenting our delineation of the rule of law in the following section, we
set out to analyze the compatibility between the rule of law and Islamic thinking and the
compatibility between the rule of law and policies pursued in Muslim countries. Our con-
cluding section provides a summary of our arguments and points out the challenges for
non-Muslim-majority societies that have experienced a large influx of Muslims recently.
Although the exact delineation of the rule of law is the subject of intense debate, different
conceptions share at least one fundamental trait: the law must be applied equally to all
members of society, those holding political power included. This is to make sure that all
power is limited and governments are not able to rule arbitrarily. Although democracy and
the rule of law are typically mentioned in the same breath, these are very different concepts.
Democracy refers to the citizens choosing their own policies or electing representatives to
take these decisions for a limited period of time; the simplest definition of what makes a
country democratic is, hence, majority decision-making. The rule of law, in contrast, sets
constraints on political decision-making; decisions have to be taken within the legal frame-
work of a country. This serves, among other things, to protect minorities from a tyranny of
the majority. Despite this inherent conflict between democracy and rule of law, the two can
be understood as complementary. The majority of the population is granted the right to take
political decisions, as long as these abide by the standards of the rule of law. Nevertheless,
the rule of law can in principle function without democracy – as long as it is self-enforcing.8
According to Kant (1797) laws should be universalizable, i.e., they should be general
(not only applicable to a specific case), open (not prescribing specific behavior), and
certain (their enforcement should be predictable). Lon Fuller’s Storrs Lectures provide
7
Gutmann, Jerg and Stefan Voigt (2018). The Rule of Law: Measurement and Deep Roots.
Forthcoming with the European Journal of Political Economy.
8
Ibid.
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The rule of law and Islam 347
another famous list of traits that laws should exhibit.9 All of these can be interpreted as
describing necessary components of the rule of law. According to Fuller’s list, the law shall
be (1) general, (2) publicly promulgated, (3) prospective (i.e., not retroactive), (4) clear, (5)
consistent (i.e., without contradictions), (6) practicable (i.e., not demand the impossible),
(7) sufficiently constant over time, and (8) congruent with the actions of public officials.
This list describes desirable attributes of legislation. It focuses on formal traits but
remains silent regarding the substance of rules. Limiting the rule of law to such formal
traits is sometimes referred to as employing a ‘thin’ conception.10 However, many atroci-
ties that have been committed by governments the world over would not be in violation
of such a thin conception. To give the rule of law more substance, the concept needs to
be enriched with some minimum content. Adding substance comes, however, at a cost.
The more is added and the ‘thicker’ the concept gets, the lower the number of people
who would approve of the concept as a normative standard. Here, we propose to include
only a narrowly defined set of basic human rights, such as the absence of extrajudicial
killings, torture, and the like. To facilitate the enforcement of the rule of law, a number
of instruments have proven helpful. These include, first and foremost, the separation of
powers and judicial independence.
This delineation of the rule of law is, however, not shared by all scholars. In a similar
context, Fukuyama, for instance, proposes to define the rule of law as ‘the govern-
ment’s acceptance of the sovereignty of a pre-existing body of law representing a social
consensus on rules of justice’11. No requirements regarding the formal traits of law are
mentioned, neither is a minimum core regarding the substance of the law. This implies
that the criterion for judging whether the rule of law prevails is context-dependent, i.e.,
it depends on whatever social consensus exists. In Fukuyama’s argument, checks on
arbitrary government power are key and the substance of the rules governing society
is of lesser importance. He even concedes that this could imply that women are treated
differently than men. Such a delineation of the rule of law is ‘too thin’ for our purposes, as
the substance of the rules is completely context-dependent. Moreover, this definition does
not impose more than procedural constraints on majority decision-making, potentially
exposing minorities to a tyranny of the majority.12
We do explicitly separate the rule of law from other concepts, such as democracy.
However, there are a few concepts which could be treated as ‘logically connected’ to the
rule of law in that their realization seems to be a precondition for the implementation of
the rule of law. These closely related concepts are (i) individualism, (ii) sovereignty, and
(iii) the nation state. In the next section, we discuss in detail whether Islam is conceptually
compatible with the rule of law, as it has been defined above; we also come back to and
elaborate further on the three concepts that were just introduced as being closely related
to the rule of law.
9
Fuller, Lon (1969). The Morality of Law. New Haven: Yale. pp 44–91.
10
HiiL (Hague Institute for the Internationalization of Law, 2007). Rule of Law – Inventory
Report. The Hague.
11
Fukuyama, Francis (2010). Transitions to the Rule of Law. Journal of Democracy 21(1):33–44.
12
This possibility cannot be excluded as long as collective decisions are taken based on
anything less than unanimity. See also Mukand, Sharun and Dani Rodrik (2017) The Political
Economy of Liberal Democracy. CESifo Working Paper 6433.
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THE RULE OF LAW AND SOCIAL ORDER IN ISLAMIC

THINKING
Islam is not organized hierarchically as is, for example, the Catholic Church. There is,
hence, no equivalent to papal encyclicals which could be used as an authorized source
regarding Islamic conceptions of a preferred social order. To describe such conceptions,
we, therefore, rely on a variety of sources beginning with the Qur’an and including some
of the most influential Islamic thinkers for current Islamist movements, such as Sayyid
Qutb. Including them in our analysis will facilitate inquiring into the compatibility
between the rule of law and what has been framed as the puritan or traditionalist – as
opposed to a moderate – interpretation of Islam.13
Why do we emphasize these elements of Islam here, despite a large variety of religious
doctrine that could be analyzed? It is certainly not to portray Islam ‘in the face of all
historical present-day experiences to the contrary – as an unchanging quantity that will
always oppose secular systems and the rule of law’,14 as some might think. The reason
is that in this section we are interested in identifying potential (or theoretical) points of
conflict between Islam and the rule of law. Only in the next section do we ask the empirical
question whether Islam constitutes an obstacle to realizing the rule of law in practice. The
observation that there are also more moderate positions in Islam is consequently beside
the point of this section when we highlight that some influential ideas in Islam might
not be compatible with the rule of law. Another way of taking the heterogeneity within
Islam into account would be to distinguish between the different Sunni and Shia schools
of Islam and their respective compatibility with the rule of law. While appealing at first
sight, this approach is not feasible due to the significant internal variety in these schools.
It is virtually impossible to characterize the different schools according to, for example,
their liberalism or traditionalism.15
A characteristic feature of Islam is the prescription of rules not only for religious
practice and social interaction, but also for how the political system of an Islamic society
should be organized. Islam is also unique in that Shari’a is prescribed in a number of
constitutions of Muslim countries to be a main source of legislation; legislation that
violates the principles of Shari’a is often prohibited. Islam claims to be relevant in all
walks of life, not just in the spiritual realm. Mohammed and his successors are considered
to be both religious leaders and worldly rulers. This all-encompassing self-image of Islam
makes a separation between church and state, as has become predominant in the West,
much more difficult to realize in the Muslim world.16
Prima facie, Shari’a, i.e., Muslim religious law, is in accordance with many of the traits
in Fuller’s list. The Shari’a has been publicly promulgated; it is prospective and practicable.
The trait of Shari’a most clearly in line with one of Fuller’s criteria is its stability over time.
13
Abou El Fadl, Khaled M. (2005). The Great Theft: Wrestling Islam from the Extremists. New
York: Harper.
14
Rohe, Matthias (2015). Islamic Law in Past and Present. Leiden: Brill. p.X.
15
Ibid., p.37.
16
Fox, Jonathan and Shmuel Sandler (2005). Separation of Religion and State in the Twenty-
First Century: Comparing the Middle East and Western Democracies. Comparative Politics
37(3):317–35.
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For some, the perception of Shari’a as God-given law is important because this makes it
more difficult for the government to disregard the law – or even to change the law accord-
ing to the government’s preferences;17 Islamic law binds all Muslims, their rulers included.
One could, therefore, argue that it also displays generality, another trait contained in
Fuller’s list.
However, evaluating Islamic law based on concrete properties prescribed by the rule of
law-concept, Kuran concludes that Islamic law fails to meet many requirements of the rule
of law for modern-day nation states.18 One key trait of the rule of law is that all persons are
treated equally (isonomia). Since Islam’s inception, three social inequalities have not only
been sanctioned but ‘sanctified by holy writ’.19 These inequalities concern the relationships
between master and slave, between man and woman, and between believer and non-believer.
The differential treatment of men and women is still the law in many Muslim countries
in that women’s legal entitlements, often including voting rights, are different from men’s.
The inequality between Muslims and non-Muslims also has far-reaching consequences.
Historically, non-Muslims residing in Muslim countries have been subject to specific
legislation called dhimmi comprising a poll tax (the jizya), the obligation to identify as
non-Muslims due to clothing requirements, and exclusion from testifying in court.20
A distinction between superior and inferior inhabitants of a country implies a similar
distinction between ‘good’ and ‘bad’ countries, namely between those belonging (dar
al-Islam) and those not belonging to the Islamic world (dar al-harb). From the point of
view of Muslim fundamentalists, a jihad must be fought against dar al-harb until the whole
world is governed in line with the principles of Islam.
Earlier we outlined arguments for Shari’a being compatible with the rule of law to
the extent that it is exempt from deliberate modification by worldly rulers. We have
responded to this argumentation noting that Shari’a is incompatible with the rule of
law to the extent that it sanctifies a number of inequalities, implying discrimination
against specific social groups. Now it could be argued that the development towards the
rule of law has not only been a very long intellectual journey (in which the concept was
invented and developed), but it also took centuries to put the concept into practice.21
Emon reminds us that even the Magna Carta, a document usually hailed as one of the
most important steps towards the rule of law in Western Europe, contains provisions
codifying discrimination against Jews.22 This raises the question whether mechanisms
17
See, e.g., Fukuyama 2010 who makes this argument for religious law in general and not
exclusively with regard to Islamic law; Brown, Nathan (1999). Islamic Constitutionalism in Theory
and Practice. In: Eugene Cotran and Adel O. Sherif (eds), Democracy, the Rule of Law and Islam.
The Hague et al.: Kluwer refers explicitly to the Shari’a.
18
Kuran, Timur (2010). The Rule of Law in Islamic Thought and Practice: A Historical
Perspective. In: James J. Heckman, Robert L. Nelson, and Lee Cabatingan (eds), Global
Perspectives on the Rule of Law. Abingdon and New York: Routledge.
19
Lewis, Bernhard. 2002. What Went Wrong? The Clash Between Islam and Modernity in the
Middle East. New York: Oxford University Press. p.83.
20
Berkey, Jonathan P. (2003). The Formation of Islam, Religion and Society in the Near East
600–1800. Cambridge: Cambridge University Press. Ch 10.
21
The former British Prime Minister Gordon Brown once remarked: ‘In establishing the rule
of law, the first five centuries are always the hardest.’
22
Emon, Anver M. (2015). Shari’a and the Rule of Law: Preserving the Realm. In: Robin
M4581 - MAY_9781786432438_t.indd 349 01/08/2018 14:47

exist in a legal order that allow for the modification of such rules to align them over time
with changing rule of law standards.
It is exactly here where the divine origin of Islamic law – that is hailed by some for
reasons outlined above – becomes an obstacle for the implementation of the rule of
law. Precisely because it is divine, it cannot simply be changed. This is a problem for all
religions, but is particularly severe for (major parts of) Islam because of the belief that
after the revelations of the prophet (which include the Qur’an and his sayings) and their
interpretation by the first generations directly following the prophet, the door for new
interpretations of the Qur’an has been closed. This notion is referred to as the closing of
the gates of Ijtihad.
The implications of this closing of the gates can hardly be overstated. Its strict applica-
tion would imply that no inspiration from real-world rule of law developments can be
integrated into the Shari’a. To grasp what this means, one only has to imagine what
‘the West’ would look like without the Protestant Reformation, without the enlighten-
ment, and so forth. Hillman argues that it is the pursuit of supreme values (values
that subordinate all other goals) by radical Islam that prevents Islamic societies from
institutionalizing concepts such as the rule of law which would enhance the well-being
of their population.23
In sum, the interpretation of Shari’a as divine in combination with the refusal to
adopt a modern interpretation of the Qur’an is the main reason for concern about the
incompatibility of Islam with the rule of law. Expressed differently, giving up the dogma
of the closing of the gates of Ijtihad would be a necessary precondition for making
Islamic law more compatible with the rule of law. We now move on to spell out some
incompatibilities between Islam and concepts that are closely related to the rule of law,
both theoretically and empirically. They are, properly speaking, not part of the concept
of rule of law themselves, but their realization would greatly enhance the chances of the
rule of law being implemented. These three concepts are (i) individualism, (ii) sovereignty,
and (iii) the nation state.
One central function of the rule of law is to establish order among a multitude of indi-
viduals, enabling them to pursue their own goals. Rules are needed to prevent potentially
conflicting individual goals from leading to conflict and eventually even chaos. Making
everybody – those holding political power included – subject to universalizable rules
increases certainty as to what behavior is permitted, what is prohibited, and what types
of behavior can, thus, be expected. Delineated such, the rule of law is an individualistic
concept as it takes the multitude of individuals and their aspirations as its starting point. In
Islamic thought, however, the notion of umma occupies a central place. It is often described
as all Muslims becoming a homogenous union in which the interests of the community take
precedence over those of the individual. Concepts that claim precedence of the community
over the individual lend themselves to crude applications of utilitarian notions in which a
small number of individuals might need to be sacrificed for the benefit of the larger group.
Griffith-Jones and Mark Hill (eds), Magna Carta, Religion, and the Rule of Law. Cambridge:
23
Hillman, Arye L. (2007). Economic Security Consequences of Supreme Values. Public
Choice 131(3):259–80.
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Such thinking, however, can find itself in conflict with the notion of basic human
rights that any individual enjoys vis-à-vis everybody else in society.24 It rather constitutes
the exact opposite of individualism.25 To make things worse, a separation from the umma
is condemned harshly in the Qur’an and is often branded as apostasy, which can be
sanctioned by death. If an important starting point of Islamic thinking is collectivist and
the rule of law is fundamentally based on individualism, then the two will prove difficult
to reconcile.
Important Islamic thinkers use the notion of the ‘rule of God’ – as opposed to the rule
of law. This concept is often described by hakimiyyatu according to which God alone can
be sovereign.26 Qutb draws on it within the context of ‘There is no god except Allah’ (‘La
ilaha illa’llah’), reminding his readers that Islam literally means submission to God alone.27
According to Qutb, this implies that nobody but God has the authority of legislation.
Referring to Jews and Christians he writes: ‘They neither accept the rule of God nor do
they consider God’s commandments as the only valid basis of all laws; on the contrary, they
have established assemblies of men which have absolute power to legislate laws, thus usurp-
ing the right which belongs to God alone’.28 This position is encountered frequently among
proponents of a traditionalist Islam: the idea that an assembly of men could sit together
and deliberate on the rules according to which the community ought to live together strikes
them as claiming a competence that is God’s alone. Confronted with the prevalence of such
mindsets, democracy is unlikely to prosper. Nevertheless, it is understandable that such
arguments find support in societies where citizens have learned to consider despotism the
normal state of politics and are skeptical of the intentions of all law-makers.29
Here we are concerned with the rule of law – and not with democracy. It was shown
above that the divine origin of Islamic law constitutes a problem as it makes the Shari’a
incapable of adapting to the potentially time-variant traits required by the rule of law.
Some mechanism to modify Islamic Law is, hence, necessary. This implies that citizens
need to have the sovereignty to choose the basic rules according to which interactions are
to be structured in their society. This does not necessarily mean that sovereignty needs to
be ‘with the people;’ it could also be ‘with parliament’ or ‘with the king.’ It does, however,
need to be with someone who is able to adapt the law to changing circumstances.
The notion of the rule of God on earth is also difficult to reconcile with the concept of
24
Tibi, Bassam (2002). The Challenge of Fundamentalism: Political Islam and the New World
Disorder. Berkeley et al.: University of California Press. p.44.
25
Sagy, Shifra, Emda Orr, Dan Bar-On and Elia Awwad (2001). Individualism and Collectivism
in Two Conflicted Societies Comparing Israeli-Jewish and Palestinian-Arab High School Students.
Youth & Society 33(1):3–30.
26
The idea of a rule of God on earth has amazing similarities with the communist belief in the
ability to create paradise on earth in that we do not need to wait for an afterlife to live in a wealthy
and just society. In both cases, there are those who are already enlightened and know the right
path. Their enlightened status gives them the right to fight those with the ‘false conscience’ to cite
a term used by Marxists. In Marxism – as in Islam – individual freedom is, hence, subordinated to
the common good
27
Qutb, Sayyid (2005). Milestones: Studies in Islam and the Middle East. Majalla.
28
Ibid., p.53.
29
Brown, Nathan J. (1999). Islamic Constitutionalism in Theory and Practice. In: Eugene
Cotran and Adel O. Sherif (eds), Democracy, the Rule of Law and Islam. The Hague et al.: Kluwer.
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the nation state. Ever since the Westphalian peace, we have come to think of societies as
state societies and social order as state order.30 Accordingly, a group of individuals – usu-
ally inhabiting a defined territory – agrees on a set of rules. This practice is conceptually
incompatible with the ideals of Islam. In the words of Qutb:31
A Muslim has no country except that part of the earth where the Shari’a of God is established
and human relationships are based on the foundation of relationship with God; a Muslim has no
nationality except his belief [. . .] a Muslim has no relatives except those who share the belief in
God, and thus a bond is established between him and other Believers through their relationship
with God.
The notion of the nation state has a number of important implications that are at a
right angle to Muslim thinking. One example concerns fatwas, legal opinions pronounced
by (often self-declared) experts in Islamic law. At times, they contain far-reaching judg-
ments and even calls for killing people (e.g., the infamous fatwa against Salman Rushdie).
Fatwas undermine the concept of the nation state to the degree that some Muslims
feel it is their duty to privately enforce such judicial opinions.32 Kuran argues that the
consequence of Islam’s rejection of the nation state concept is its continued reliance
on tribalism;33 if society is not delimited by geographical borders, but defined based on
religious brotherhood, religious equality becomes inconceivable. While non-Muslims may
be given basic rights, they will not be allowed into important political offices and any role
in the administration, the military command, or the judiciary must be duly limited.
The notion that the nation state facilitates the implementation of the rule of law is,
however, not shared by all scholars. With a view to its development in Europe, Fukuyama
claims that the rule of law was ‘embedded in European society even before the advent not
just of democracy and accountable government, but of the modern state-building process
itself.’34 He goes on to say: ‘We should admit to ourselves that we have very little histori-
cal experience in successfully constructing a rule of law in societies where this pattern is
reversed and where a strong state precedes law.’ Interestingly, Fukuyama does not claim
that the rule of law had been implemented anywhere before the advent of the nation state
but simply that it had been ‘embedded’. Moreover, a full-fledged implementation of the
concept as we currently define it would have been impossible without the presence of the
nation state. After all, a constitutionally entrenched separation of powers between an
executive, a legislature, and an independent judiciary is the most established institutional
mechanism to safeguard the rule of law.
To sum this section up, we have presented some aspects of Islamic law that comply
30
Beck, Ulrich (2000). What is Globalization? Cambridge: Polity Press. p.23.
31
Qutb (n 27) p.81.
32
Many Muslim legal scholars date the beginning of the demise of the Islamic legal tradition
and the leading role of the jurists with the imposition of the nation state concept by colonial
powers, and in particular the United Kingdom (Abou El Fadl, Khaled M. (2005). The Great Theft:
Wrestling Islam from the Extremists. New York: Harper. p.35 and Hallaq, Wael B. (2009). An
Introduction to Islamic Law. Cambridge: Cambridge University Press. p.2 are just two examples).
See also Mukand and Rodrik (n 12).
33
Kuran (n 18).
34
Fukuyama (n 11). pp.33–44.
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with the formal traits of the rule of law according to Fuller. We have further shown that
Islamic law sanctifies certain inequalities which are incompatible with the rule of law. It
should be pointed out that we have elsewhere analyzed the contents of an Islamic model
constitution and arrived at very similar points of conflict.35 The absence of a generally
accepted mechanism to modify parts of Islamic law was argued to be the most relevant
factor inhibiting a greater congruence between the rule of law and Islam. Finally, some
factors that might be conducive to the rule of law are conspicuously absent in Islamic
doctrine. Nowhere in this section have we made reference to the last one of Fuller’s
criteria, namely that laws must be congruent with the behavior of public officials. This
will be dealt with in the next section.
THE RULE OF LAW AND THE REALITY OF ISLAMIC NATION

STATES
So far, we have focused on the conceptual compatibility between the rule of law and the
Islamic ideal of a social order. This is important to understand why Islam has the potential
to undermine the rule of law, but it does not answer the question whether Muslim societies
actually have a deficit when it comes to implementing the rule of law in practice. We have
addressed this question in previous research.36
The challenge in evaluating whether countries under the influence of political Islam
are less likely characterized by the rule of law is twofold. First, one has to be able to
measure the influence of political Islam. Previous studies on the compatibility of Islam
and democracy simply rely on the share of Muslims in a country’s population as a very
crude proxy for the importance of Islam.37 Gouda and Potrafke instead rely on a de jure
measure of the role of Islam in a country’s constitution.38 In our earlier work, we went one
step further and proposed an index that could give a more nuanced picture of the role of
Islam in politics.39 Our Islamic State Index (ISI) takes into account the share of Muslims
in the population, whether Muslims constitute the majority of the population, whether
Islam is the official state religion, as well as a country’s membership in the Organisation of
Islamic Cooperation (OIC). While this index is far from a precise measure of the influence
of Islam on politics in a country, it is arguably more informative than a simple popula-
tion share or an indicator for whether Islam is the source of legislation. Countries like
Afghanistan, Algeria, Pakistan, and Saudi Arabia are measured close to the maximum of
the ISI-scale, whereas Uzbekistan and Turkey, for example, have more moderate scores,
despite sizable Muslim population shares.
When the measurement problem has been addressed satisfactorily, one can easily meas-
ure the statistical association between the indicator for Islam and another indicator for
the rule of law. As the rule of law is multifaceted and its implementation might be found
lacking in different respects, we have previously proposed to look at these aspects one by
35
Gutmann and Voigt (n 4). pp.351–80.
36
Ibid
37
Potrafke (n 3) pp.185–92.
38
Gouda and Potrafke (n 5) pp.683–98.
39
Gutmann and Voigt (n 4) pp.351–80.
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one instead of merely at an overall indicator.40 Independent of this question, the second
major challenge is to identify a causal effect of Islam on (aspects of) the rule of law and
not just a statistical correlation. This is tricky because, in reality, Islamic countries might
be very different from other countries with respect to their wealth, their climate, their
natural resources or their historical experiences. All or any of these could be responsible
for differences in the implementation of the rule of law and thus it is difficult to identify
the singular effect of Islam itself. Unlike in a laboratory experiment, Islam cannot be
randomly assigned to countries in order to study its consequences.
Therefore, we have tried to separate the effect of Islam on the rule of law from that of
a country’s income, education, ethnic fractionalization, colonial history, precipitation, oil
wealth, and some more differences in their state and pre-state history.41 Taking all these
differences into account in a cross-country regression analysis, countries with a strong
influence of Islam on politics lag behind in only two dimensions. They guarantee fewer
rights for women and their judges are less independent. Other differences, for example in
the quality of property rights protection or regarding the extent of parliamentary powers,
are not statistically significant.
Aside from general tendencies that separate Muslim from non-Muslim societies,
there are also a number of country cases that merit closer inspection. Saudi Arabia, for
example, seems to contradict the expected predictability of a legal system based on divine
law, indeed the kingdom’s religious scholars have successfully prevented steps toward
the codification of the law. The resulting uncertainty has pushed many litigants to use
alternative mechanisms of dispute resolution and even for the state it is difficult to predict
which laws will be regarded as legitimate and enforced by which judges.42
Iran exemplifies a constitutional order where political power is in no way legitimized by
the people, but solely derived from God. The Iranian constitution pays only lip service to
popular sovereignty and instead transfers political power directly to Islamic jurists.43 The
Iranian Council of Guardians may veto any legislation that would violate the Shari’a or
the constitution.
In contrast, Egypt provides an example where the inequalities prescribed by Islamic
law are mitigated via the creative interpretation of Shari’a by the country’s Supreme
Constitutional Court.44 Political practice in Egypt was for a long time based on rather
secular principles, despite Shari’a being constitutionally declared the principal source
of legislation. This shows that potential conflict between Islam and the rule of law, as
diagnosed in the previous section, might be absent where the interpretation of Islamic
doctrine is not traditionalist and hence not literal. An attempt to change this for the
40
Ibid.
41
Ibid.
42
Brown, Nathan J. (2012). Why Won’t Saudi Arabia Write Down its Laws? Foreign Policy,
January 23, 2012.
43
Brown, Nathan J. and Mara Revkin (2015). Islamic Law and Constitutions. In: Anver M.
Emon and Rumee Ahmed (eds), The Oxford Handbook of Islamic Law. Published Online, Oxford
University Press.
44
Lombardi, Clark B. and Nathan J. Brown (2006). Do Constitutions Requiring Adherence to
Shari’a Threaten Human Rights? How Egypt’s Constitutional Court Reconciles Islamic Law with
the Liberal Rule of Law. American University International Law Review 21:379–435.
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case of Egypt was certainly among the prime reasons why the Morsi presidency ended
prematurely.
All in all, we can conclude from this section that there are indeed systematic problems
in Muslim societies when it comes to implementing the rule of law. These deficits in the
rule of law are not surprising, given the number of potential points of conflict between
Islamic doctrine and rule of law that we identified above. We find that Muslim societies
are systematically lagging behind in the equal legal treatment of individuals from different
social groups and that the influence of Islam on the organization of the state (specifically
the judiciary) also does not favor the rule of law. Of course, behind these general state-
ments hides considerable heterogeneity in Muslim societies’ devotion to the rule of law.
CONCLUSION AND OPEN QUESTIONS
Above, we have stated that it is by no means self-evident that all societies and political
leaders favor an implementation of the rule of law, despite its many advantages. Muslims
with a traditionalist interpretation of Islam might actually prefer the rule of God over
the rule of law any day. Where these traditionalists are influential in politics, it is unlikely
that the rule of law is a priority. This is, however, not necessarily a good description of
what Muslim societies strive after.
Thus, our discussion of the social order in Islamic thinking can also be understood as
a list of potential problems Muslim societies may face and have to come to terms with
should they attempt to acquire the rule of law. The most important hurdle might be to
accept that a timely interpretation of religious law is necessary to make it substantively
compatible with a concept that did not exist during the early years of Islam. While it is
true that women’s rights in Islam were progressive relative to the status quo when Islamic
law was first formulated, the equal treatment of men and women or Muslims and non-
Muslims today cannot be reconciled with a literal interpretation of Islamic law that was
created more than 1,000 years ago. More fundamentally, collectivist thinking, a rejection
of the nation state concept, and the belief that societies lack the sovereignty to create
their own basic laws are likely to doom to failure any effort to implement the rule of law.
However, where these potential points of conflict are appropriately dealt with, Muslim
societies should be as capable as any other of adopting the rule of law.
The empirical results we have summarized above show that societies where Islam
plays a significant role in politics still lack behind in some dimensions of the rule of
law. Specifically, the equal treatment of all members of society and the creation of an
independent judiciary are less likely than in otherwise comparable societies not under the
influence of Islam. This does not imply that Muslim countries will continually lag behind
in the implementation of the rule of law. It should be noted that many Western societies
have been, and indeed are still often, struggling with how to guarantee the rule of law.
Nevertheless, it might be necessary for societies in which large parts of the population
follow a religion that claims the privilege of dictating immutable rules for the political
and legal organization of the state to carefully develop solutions for how to compromise
between religious ideals and a social order preferred by the citizens of this society. One
reason to be skeptical about the success of such efforts is that, as is the case for many other
reforms, there are powerful political actors who stand to lose from them.
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We have shown that neither Islamic thinking nor some of the policies of Muslim
governments are easily reconcilable with the rule of law. It might be important to stress
that the observed incompatibilities, of course, do not imply that other religions and their
conceptions of a legal order are necessarily more compatible with the rule of law. A
clearer separation between religion and state might, thus, benefit the rule of law not only
in Muslim countries.
We want to use this last section to mention two issues that deserve closer scrutiny in the
future. It has been pointed out that Islamic law was created, administered, interpreted,
and enforced largely outside state structures, which were created much later and imposed
by European colonizers.45 Now, Islamic law is not unique in that respect; a large number
of nation states explicitly allow for some interactions to be structured by traditional law.46
There has even been a trend to explicitly refer to traditional law on the constitutional level.
The potential problems regarding the rule of law that might arise as a consequence of such
legal pluralism definitely deserve more scholarly attention.
Finally, after the experience of the Weimar Republic, the rule of the Nazis, and WWII,
Germany established a democratic system that has been coined ‘militant democracy’,
meaning that the government branches and, at least as a last resort, even the citizenry are
given special powers to defend the liberal democratic order. It is interesting to reflect about
the desirability or possibly even the necessity of installing something like a ‘militant rule
of law’ in analogy. Should those aiming at destroying the rule of law enjoy the possibility
of doing so by using some of those rights they wish to destroy? Müller, for example, argues
that militant democracy has already been invoked in some European countries to protect
secularism as an element of a broad conception of democracy; could this not be the same
for Islamic societies wishing to adopt the rule of law?47
45
Hallaq (n 32).
46
Gutmann, Jerg and Stefan Voigt (2016). Informal Law: Where and How Does It Work?
Mimeo.
47
Müller, Jan-Werner (2016). Protecting Popular Self-Government from the People? New
Normative Perspectives on Militant Democracy. Annual Review of Political Science 19:249–65.
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22. The rule of law and human rights
Mona Rishmawi1
INTRODUCTION: SOME APPROACHES TO THE

RELATIONSHIP BETWEEN LAW AND SOCIETY
In April 1963, Dr. Martin Luther King Jr. was imprisoned for participating in a non-
violent protest against racial segregation. Eight religious leaders issued a public state-
ment chastising him and characterising his action as ‘unwise and untimely’.2 Their
concern was that the law was broken as the protesters proceeded with the march without
authorisation.
From his jail in Birmingham (USA), Dr. King responded in a six-page letter describing
the reason for the protest: a thoroughly segregated city with humiliating racial signs,
police brutality and unjust treatment of Afro-decedents in courts, and unresolved crimes
including the bombings of homes. Commenting on the correlation between law and
justice, he wrote:3
How does one determine when a law is just or unjust? A just law is a man-made code that squares
with the moral law, or the law of God. An unjust law is a code that is out of harmony with the
moral law. To put it in the terms of Saint Thomas Aquinas, an unjust law is a human law that is
not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that
degrades human personality is unjust. All segregation statutes are unjust because segregation
distorts the soul and damages personality.
. . . An unjust law is a code that a majority inflicts on a minority that is not binding on itself.
This is difference made legal. On the other hand, a just law is a code that a majority compels a
minority to follow that it is willing to follow itself. This is sameness made legal.
. . . There are some instances when a law is just on its face and unjust in its application. For
instance, I was arrested Friday on a charge of parading without a permit. Now there is nothing
wrong with an ordinance which requires a permit for a parade, but when the ordinance is used
to preserve segregation and to deny citizens the First Amendment privilege of peaceful assembly
and peaceful protest, then it becomes unjust.
. . .
We can never forget that everything Hitler did in Germany was ‘legal’ and everything the
Hungarian freedom fighters did in Hungary was ‘illegal.’ It was ‘illegal’ to aid and comfort a Jew
in Hitler’s Germany. But I am sure that if I had lived in Germany during that time, I would have
aided and comforted my Jewish brothers even though it was illegal. If I lived in a Communist
1
The author writes in her personal capacity. The views expressed in this chapter do not neces-
sarily reflect the views of the United Nations, or of any other institution. All websites were live at
23 November 2017.
2
https://web.cn.edu/kwheeler/documents/Letter_Birmingham_Jail.pdf.
3
Letter from the Birmingham Jail, pp. 7–9. Various versions exist of this letter as it was
hand written. This author used the version posted on the Martin Luther King, Jr., Research
and Education Institute http://okra.stanford.edu/transcription/document_images/undecided/630
416-019.pdf.
357
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country today where certain principles dear to the Christian faith are suppressed, I believe I
would openly advocate disobeying these anti-religious laws. 4
Questions have been asked for centuries about whether law is simply a system of control
by the State, or is it a way to protect the individual from the overreach of the State. Can the
law be an engine for social change or is it simply the tool that reacts to it? The examples Dr.
King uses in his letter, from Hitler to communism, demonstrate the point that law cannot
be seen in a transactional fashion; it must have ideals and values for it to be legitimate; the
system it creates must be fair; and it must respect fundamental rights.
Long before Martin Luther King, there were debates about the proper role of law in
society. Martin Luther King himself cites a saying from fourth century St. Augustine, ‘An
unjust law is no law at all.’5 The relationship between law and society has been addressed
by multiple legal scholars including with regard to international law.
J.L. Brierly, a jurist whose teachings influenced generations of jurists, saw law and
society as correlative terms and suggested that one could not exist without the other.
For him, law provides the moral and practical basis under which the society functions.
Writing in the 1930s he remarked that ‘A society needs a spiritual as well as material basis
. . . a sentiment among its members of community and of loyalty, of shared responsibil-
ity for the conduct of a common life.’6 Addressing the challenge of the codification of
law for an international society of all States, he wrote ‘law is not a commodity which
can be produced by methods of mass production; it is the conscience of a community
expressing itself in rules of conduct appropriate to the conditions in which members of
the community have to live their common life.’7 Placing morality at the centre of law-
making by an international society, for international law and international relations, this
was perhaps as visionary as A.V. Dicey’s moral reading of constitutional law decades
earlier.8 Both paved the way for an eventual location of human being and his or her
rights at the centre of the rule of law, both as a legal principle and as an operational
tool.9
From a political science perspective James C. Scott has given us an insight into another
dimension of the rule of law. In his book ‘Seeing Like a State’, he illustrated how an
autocratic State thinks about its core functions and how it rules its population; it attempts
4
Ibid., p. 3.
5
Ibid.
6
‘The Rule of Law in International Society’, Acta Scandinavica Juris Gentium. vol. vii, no. 1
(1936), 3–17, p. 4.
7
Ibid., p. 12.
8
A. V. Dicey Introduction to the Study of the Law of the Constitution 8th edn (1885), p. 434.
9
Brierly also stressed the idea that when an international dispute arises before an international
court then international law can adopt only one of two positions: either ‘the action in question falls
under some rule of law by which its legitimacy ought to be tested: or it may say no rule of law is
applicable’ and the issue is one which is left solely to the domestic jurisdiction of the relevant state.
‘Matters of Domestic Jurisdiction’ 6 British Year Book of International Law (1925) 8-19 at 10–11.
His work demonstrates that the rule of law is not only recognized as an important component of
international governance, injecting values and morality into dry principles, but also that interna-
tional law operates according to rules that either cover or do not cover any dispute and all states are
subjected to this rule of law. Andrew Clapham Brierly’s Law of Nations, 7th edn Oxford University
Press, (2012) pp. 51, 56, 423.
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The rule of law and human rights 359
to make the ‘society legible’,10 by anticipating the thoughts and action of the governed.
This legibility, which he saw as ‘the central problem in statecraft’ underpins the capacity
for large-scale social engineering so that the State can conduct and simplify its classical
functions, such as taxation, conscription, and the prevention of rebellion.11 To avoid
social and political tension, rules and laws become part of the tool box that also includes
other systems of standardisation such as weights and measures, population registers, and
land tenure.12 This over-simplification by the State leads to it ignoring the actual activities
of society. It provides the State with a false map, and therefore a misleading sense of
comfort. In other words, the State rules through law but the legal and legible ‘abridged
maps’ create conflicting ‘realities’ and potentially disastrous consequences.
Scott builds on the experience of the First and Second World Wars and particularly the
construction of national economic mobilisation to describe how such rule through law
works. He says it combines four elements that enable this type of social engineering: first,
is the administrative ordering of nature and society; second, the high modernist ideology
based on the legitimacy of science and technology; third, is an authoritarian State willing
and able to use the full weight of its coercive power to bring these high-modernist designs
into being; fourth is a pro-State civil society that lacks the capacity to resist these plans.13
In describing how such a system works, he warns against cold strategists, planners and
technological advances that are celebrated as the designers of the new order, but are
unable to understand the human conditions behind this order.14 Significantly though,
Scott concludes that these approaches have brought so much suffering and failed their
intended beneficiaries in the past as well as those who designed them. Scott’s anthropo-
logical reading of history and political economy serves as an important reminder of the
collective good that needs to be protected, and the complex relationship between law,
institutions and the individual.
More recently, Christopher May in his work on The Rule of Law: The Common Sense of
Global Politics also seeks to broaden the discussion of the rule of law beyond lawyers and
the legal discipline, arguing that it is a common sense proposition and an element of social
change.15 He embraces a minimalist understanding of the concept so that its parameters
are accepted globally and practical support for the concept is possible at the international
and national level. May explains his approach as follows:
While the neoliberal new right agenda saw the rule of law (to simplify a little) as merely a thin
procedural mechanism to deliver the order required for the expansion of capitalist markets, for
those seeking to advance liberal democratic values thicker readings of the norm are preferred as
conceptions of legal development that support human rights, social justice and fairness, which
are values that lie at the heart of the self-conception of most developed countries.16
10
James C. Scott Seeing Like a State: How Certain Schemes to Improve the Human Condition
Have Failed, Yale University Press, (1999) p. 2.
11
Ibid.
12
Ibid.
13
Ibid., pp. 3–5.
14
Ibid., p. 5.
15
Christopher May The Rule of Law: The Common Sense of Global Politics Edward Elgar
(2014).
16
Ibid., p. 186.
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May notes that it is important to understand ‘the rule of law not as an artifact of juris-
prudence but rather as a social imaginary or common sense [which] offers a way of setting
the rule by law in the context of the rule of law’.17 This he says allows those countries
with a thinner conception of the rule of law to see the connections to thicker conceptions
of the rule of law. Stepping outside the legal approach allows us along with May to see
that ‘it is not necessarily the case that the call for the rule of law always originates with
lawyers’.18
I. DEVELOPING THE NOTIONS AT THE INTERNATIONAL

LEVEL
Human rights and the rule of law are two contemporary concepts concerned with indi-
viduals and institutions. Human rights generally focus on the duty of the State to protect
the rights of each person living under its authority and within its control, while the rule
of law relates to the governance system that is put in place to achieve this protection.
This section will briefly present some of the international documents that discuss these
two concepts.
1. The Universal Declaration of Human Rights
The first internationally agreed upon document to articulate human rights is the 1948
Universal Declaration of Human Rights (UDHR). The UN General Assembly pro-
nounced UDHR as ‘a common standard of achievement for all peoples and all nations,
to the end that every individual and every organ of society. . . shall strive . . . to promote
respect for these rights and freedoms. . .’.19
In proclaiming the UDHR, the General Assembly anticipated an institutional framework
to promote and protect these rights. It required States to develop ‘progressive measures’ at
the national and international level to secure their universal and effective recognition and
observance. The institutional framework for attaining these rights was also referred to in
the various provisions. These include laws, tribunals, representative government, periodic
and genuine elections, social services and security, and democratic society. The rule of law
is mentioned in the preamble as an essential prerequisite if human beings are not to be
compelled, ‘to have recourse, as a last resort, to rebellion against tyranny and oppression’.20
Article 8 focuses on the right of everyone to ‘an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the constitution or by law’.
While the preamble of the European Convention of Human Rights (1950) described the
rule of law as a common heritage shared amongst European nations, neither the American
Convention on Human Rights, nor the African Charter on Human and Peoples’ Rights
17
Ibid.
18
Ibid., p. 187.
19
Preamble UDHR.
20
The full formulation is: ‘Whereas it is essential, if man is not to be compelled to have
recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be
protected by the rule of law.’
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mentions the phrase ‘rule of law’. Neither does this phrase appear in the two international
Covenants that gave legal effect to the norms contained in the UDHR, namely, the
International Covenant on Civil and Political Rights (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights (ICESCR). The covenants, however,
deal with classic elements of the rule of law, such as the protection from arbitrary deten-
tion, the right to fair trial, and the conditions for the exercise of State power and obliga-
tions in key areas, such as land rights, health care, employment and freedom of association.
Nevertheless, the reference to the rule of law in the UDHR in this quick but powerful
way demonstrates that it was a more familiar concept at the time than human rights.21
Indeed the notion has a strong history in the common law with a sort of equivalent
phrasing in civil law.22
The UDHR already set a world record in 1999 for being the most translated document
in the world and now has over 500 translations.23 It has proved to have had a tremendous
influence on modern constitutions as most of them embody many if not most of the
rights contained in it as well as anchoring concepts such as separation of powers, the
independence of the judiciary, and the role of various State institutions.
2. Early Definitions of the Rule of Law: The Work of the International Commission of
Jurists
Established in 1951 in West Berlin, the Statute of the International Commission of Jurists
(ICJ) dedicated the organisation ‘to the support and advancement of those principles of
justice which constitute the basis of the Rule of Law’. 24 The organisation found that the
rule of law was a notion familiar to lawyers of many different legal systems, but too often
the phrase had uncertain meaning.25 It therefore embarked on an effort to elaborate this
notion, organising conferences, conducting multinational surveys on the rule of law, and
launching a scholarly journal.26
Several congresses were held in various parts of the world bringing in jurists from dif-
ferent legal system with an attempt to arrive at some common understandings. The Act of
Athens adopted in 1955 by jurists from 48 countries pronounced that governments must
respect the rights of individuals under the rule of law.27
21
See further W.A. Schabas, (ed.) The Universal Declaration of Human Rights: The Travaux
Préparatoires, Cambridge: CUP (2013); M. A. Glendon, A World Made New: Eleanor Roosvelt and
the Universal Declaration of Human Rights, New York: Random House (2002).
22
As Simon Chesterman explains, the expression used in other languages highlight the role
of the State rather than that of judicial institutions: ‘Rechtsstaat’, ‘État de droit’, ‘stato di diritto’,
‘estado de derecho’, ‘Rule of Law’ in Max Planck Encyclopedia of International Law (OUP (2007)
at paras 7ff.
23
http://www.ohchr.org/EN/UDHR/Pages/Introduction.aspx.
24
http://icj.wpengine.netdna-cdn.com/wp-content/uploads/1959/01/Rule-of-law-in-a-free-
society-conference-report-1959-eng.pdf, p. v.
25
Ibid.
26
See Howard B. Tolley, The International Commission of Jurists: Global Advocates for Human
Rights, University of Pennsyvania Press, (1994) p. 50.
27
http://icj.wpengine.netdna-cdn.com/wp-content/uploads/1959/01/Rule-of-law-in-a-free-
society-conference-report-1959-eng.pdf, p. 2.
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The Congress of New Delhi, which took place in 1959, was key to the development of
the concept of the rule of law and its operational aspects. A Secretariat working paper to
the Congress defined the rule of law as:
adherence to those institutions and procedures, not always identical, but broadly similar, which
experience and tradition in different countries of the world, often having themselves varying
political structures and economic backgrounds, have shown to be essential to protect the
individual from arbitrary government and to enable him to enjoy dignity.28
The Congress reached three fundamental conclusions: First, the rule of law is not static,
but a dynamic concept that can be developed and expanded with time. It relates to the
role of the legislative and executive powers as well as to judicial processes, particularly in
the criminal justice area.
Second, the concept should be employed not only to safeguard and advance civil and
political rights, but also for the establishment of social, economic, and cultural conditions
that would permit human beings to live in dignity and to fulfill their legitimate aspirations.
The reference to the economic and social aspects of rights was not without controversy,29
but many influential ICJ figures, including its Secretary General, considered it important
to reflect the thinking of jurists, particularly in the developing world.
This positive approach towards economic and social rights later shifted the Organization’s
orientation from East/West differences to the mobilisation of jurists across the North/South
divide.30 In this later phase, the ICJ stressed a more comprehensive set of issues that affect
the rule of law ranging from the right to privacy to freedom of expression, to land rights
and the impact of globalisation. Importantly, the ICJ championed the right to development,
repudiating claims that human rights must be sacrificed to permit economic growth.31
Third, the Congress concluded that an independent judiciary and legal profession
are essential for the maintenance of the rule of law.32 Later, the ICJ’s Centre for the
Independence of Judges and Lawyers, established in 1979, organised support for judges
and lawyers who are harassed or persecuted.
Still energetic, 65 years after its establishment, the Organization defines its current
objectives as ensuring the progressive development and effective implementation of
international human rights and international humanitarian law; securing the realisation
of civil, cultural, economic, political and social rights; safeguarding the separation of
powers; and guaranteeing the independence of the judiciary and legal profession.33 The
ICJ’s original approach of placing the legal protection of human rights at the centre of
the rule of law continues to resonate with jurists, 34 although some scholars have criticised
such an approach as expansive.35
28
See Tolley (supra n 26) p. 71.
29
Ibid., pp. 71–2.
30
Ibid., Chs 3 and 11 and p. 144.
31
Ibid., Ch. 7, p. 144.
32
Declaration of Delhi, http://icj.wpengine.netdna-cdn.com/wp-content/uploads/1959/01/Rule-
of-law-in-a-free-society-conference-report-1959-eng.pdf, p. 3.
33
https://www.icj.org/about/.
34
See e.g., T. Bingham The Rule of Law Allen Lane (2010), pp. 159 and 173.
35
See e.g., May (n 15) p. 44.
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3. The Vienna Declaration and Programme of Action
It took 45 years after the adoption of the UDHR for States to agree on explicit mention
of the rule of law in another significant human rights text. The 1993 Vienna Declaration
and Programme of Action adopted by the World Conference on Human Rights discusses
the rule of law in five paragraphs.36
The preamble refers to the rule of law as the ‘aspirations of all the peoples for an
international order based on the principles enshrined in the Charter of the United
Nations’. In the following paragraphs, ‘the lack of the rule of law’ is condemned as
a root cause of gross and systematic human rights violations. There is also a call for
an increased effort to support States that seek assistance to establish and strengthen
national legislation, national institutions and related infrastructures which uphold the
rule of law. States are particularly requested to abrogate legislation leading to impunity
for those responsible for grave violations of human rights, such as torture, and to
prosecute such violations.
The need to assist States is also stressed: key areas for assistance include the
promotion of freedom of expression and the administration of justice, as well as
effective participation in decision-making processes. The declaration also called for the
establishment of a comprehensive UN assistance programme to help States build and
strengthen adequate national structures which impact on human rights and the rule
of law, including measures related to reforming penal and correctional establishments,
and the education and training of lawyers, judges and security forces in human rights.
States are also encouraged to include human rights, humanitarian law, democracy, and
the rule of law as subjects in the curricula of all learning institutions in formal and
non-formal settings, alongside resource banks of information, and supporting person-
nel with expertise relating to the strengthening of the rule of law and of democratic
institutions.
In sum, while the preamble refers to upholding the rule of law as aspirational, the rest
of the text makes a strong and pointed link between the absence of the rule of law and
human rights violations, providing a practical menu for action.
4. The UN Secretary General’s Rule of Law Approach
On 24 September 2003, ten years after the Vienna Conference, the UN Security Council
met at ministerial level to discuss the UN’s role in establishing justice and the rule of law
in post-conflict societies. After exchanges of experiences, it welcomed the offer by the UN
Secretary-General to provide a report that could inform the Security Council’s further
consideration of these matters.37
In August 2004, the UN Secretary-General issued his first rule of law report to
the Security Council. It defines the various aspects of the rule of law, particularly in
36
Endorsed by the 48th session of the General Assembly (resolution 48/121, of 1994), this docu-
ment guides approaches to human rights until today. http://www.ohchr.org/EN/ProfessionalInterest/
Pages/Vienna.aspx.
37
S/PV.4833; S/PV.4835; S/PRST/2003/15; S/PRST/2004/2.
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the context of transition,38 and considers human rights law amongst its normative
cornerstones.39 The rule of law itself is defined as:
a principle of governance in which all persons, institutions and entities, public and private,
including the State itself, are accountable to laws that are publicly promulgated, equally enforced
and independently adjudicated, and which are consistent with international human rights
norms and standards. It requires, as well, measures to ensure adherence to the principles of
supremacy of law, equality before the law, accountability to the law, fairness in the application
of the law, separation of powers, participation in decision-making, legal certainty, avoidance of
arbitrariness and procedural and legal transparency.40
This definition of is now considered authoritative.41

Consequently, the Secretary-General issued several thematic reports to the Security
Council and to the General Assembly on the same topic; each reiterated the linkages
between human rights and the rule of law.42 Several guidance notes were also elaborated
to stream-line the operational work of the UN system in this regard43 and covered
specific issues such as transitional justice and reparations for conflict-rated sexual
violence.44
5. The UN Rule of Law Declaration
Following a High-level Meeting on the Rule of Law at the National and International
Levels in 2012, the UN General Assembly adopted for the first time a Declaration in
which it reaffirmed the Member States’ commitment to the rule of law and detailed the
efforts required to uphold its different aspects.45
The Declaration builds on the Secretary-General’s earlier definition and recognises
that:
the rule of law applies to all States equally, and to international organizations, including the
United Nations and its principal organs, and that respect for and promotion of the rule of law
and justice should guide all of their activities and accord predictability and legitimacy to their
actions. [It] also recognize[s] that all persons, institutions and entities, public and private, includ-
ing the State itself, are accountable to just, fair and equitable laws and are entitled without any
discrimination to equal protection of the law.46
38
Report of the Secretary-General: The rule of law and transitional justice in conflict and
post-conflict societies (S/2004/616), para. 9, including fn. 6.
39
Ibid.
40
Ibid., para. 6.
41
See, e.g., Vera Gowlland-Debbas and Vassilis Pergantis, ‘Rule of Law’ in Vincent Chetail
(ed.) Post Conflict Peacebuilding: A Lexicon Oxford University Press (2009) p. 320.
42
https://www.un.org/ruleoflaw/key-documents/.
43
See, https://www.un.org/ruleoflaw/?s=guidance.
44
See Guidance Note of the Secretary-General: United Nations Approach to Transitional
Justice, https://www.un.org/ruleoflaw/files/TJ_Guidance_Note_March_2010FINAL.pdf, and on
Reparations for Conflict-Related Sexual Violence, http://www.ohchr.org/Documents/Press/Guidance
NoteReparationsJune-2014.pdf.
45
A/RES/61/1 24 September 2012.
46
Ibid., para. 2.
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The Declaration makes broad statements about the connections between the rule of
law and the work of the three pillars of the UN: peace and security; development; and
human rights. The reference to human rights ranges from affirming States’ obligations
to observe and protect human rights without distinction to pledging to support efforts in
this field. Conceptually, the Declaration reaffirms that human rights, the rule of law and
democracy are interlinked and mutually reinforcing. Operationally, it recognises the need
for rule of law assistance particularly in areas such as access to justice, informal justice,
and transitional justice to address past human rights violations and to tackle impunity.
During the High-level Meeting, States and Observers made commitments to strengthen
aspects of the rule of law within their own countries and to support other States in doing
so. A total of 419 pledges were made, demonstrating the practical linkages between human
rights and the rule of law. 47 The Maldives, for instance, pledged to increase the representa-
tion of women in public life and ensure education for girls. Finland committed to assisting
central Asian States in ensuring equality before the law. Mexico vowed to train its judges,
magistrates, and prosecutors on human rights standards, while the US committed to
strengthening its ability to prosecute atrocity crimes. Hungary promised to enact a new code
of ethics for public servants. Latvia focused on the development of a joint action plan for
free expression on the internet and Nigeria committed to reducing the number of persons
awaiting trial. Additionally, several States focused on the ratification of specific interna-
tional treaties and reviewing reservations, as well as supporting the International Criminal
Court and the International Court of Justice. Although these pledges are important, the
lack of any monitoring mechanism to track implementation reduces their effectiveness.
II. THE COMMON INGREDIENTS
What was described above is the general approach of situating human rights within the
rule of law discourse and vice versa, demonstrating that they intersect in aspirations and
techniques. Human rights today have a strong legal basis both as a branch of international
law as well as part of domestic legal systems. While human rights treaties and custom
define States’ legal obligations, some boundaries are left for national constitutions and
respective laws to explore. This is particularly important when the law itself allows for
the limitation of rights or derogations in specific circumstances, whether in the civil and
political rights field48 or with regard to economic, social, and cultural rights.49 The rule of
47
For a full list of commitments, see the pledging data-base https://www.un.org/ruleoflaw/
pledging-database/.
48
Adopted in 1985, the Siracusa Principles on the Limitation and Derogation of Provisions
in the International Covenant on Civil and Political Rights were developed as guidance on
‘conditions and grounds for permissible limitations and derogations [from the ICCPR] in order to
achieve an effective implementation of the rule of law’. American Association for the International
Commission of Jurists (ICJ), The Siracusa Principles on the Limitation and Derogation of
Provisions in the International Covenant on Civil and Political Rights, available at http://icj.wpen-
gine.netdna-cdn.com/wp-content/uploads/1984/07/Siracusa-principles-ICCPR-legal-submission-
1985-eng.pdf.
49
Adopted in 1986, the Limburg Principles on the Implementation of the International
Covenant on Economic, Social and Cultural Rights were adopted. They provide a comprehensive
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law thus becomes essential for the legal protection of human rights with its emphasis on
separation of powers, whether legislative, executive or, judicial, and on the various checks
and balances functions among these institutions.
The late Lord Bingham, from whom the term ‘ingredients’ is borrowed, discusses in
his highly popular work on The Rule of Law the nexus between this concept and human
rights.50 With his background as an eminent national judge, he saw human rights as an
important element of the rule of law.51 His analysis of human rights is largely based on
cases litigated before him in the UK courts under the Human Rights Act, which domesti-
cates the European Convention of Human Rights. He mainly focuses on 14 provisions as
examples of rights that should be protected by law,52 providing an important illustration
of how international human rights work within the rule of law at the national level.
It is possible to distill some common core principles connecting the rule of law and
human rights. These linkages can be grouped around five general parameters: legality,
equality, participation, transparency, and accountability. Each of them will be discussed
briefly below.
1. Legality
The principles of legality and the rule of law underpin the concept of human rights
as whole. As eloquently argued by Dr. Martin Luther King in his Birmingham letter
mentioned above, it should be obvious that law itself must have a human rights purpose;
the rule of law is not the same as rule by law. The use of laws and regulations to oppress
people, abuse power and violate human rights is against the rule of law. Laws imposing
limitations on the exercise of human rights must not be arbitrary or unreasonable53
and an effective remedy against illegal or abusive limitation on human rights must be
provided.54
framework for understanding the legal nature of the norms found in the Covenant and are widely
used as a means of interpreting those norms. http://www.ohchr.org/Documents/Publications/
training12en.pdf. pp. 125–35.
50
See Bingham (n 34). Justice Bingham’s ingredients include eight suggested principles which
he discusses at some length: (1) the accessibility of law (pp. 37–47); (2) law not description (pp.
48–54); (3) equality before the law (pp. 55–9); (4) the exercise of power (pp. 60–65); (5) human rights
(pp. 66–84); (6) dispute resolution (pp. 85–9); (7) a fair trial (pp. 90–109); and, (8) the international
law in international legal order (pp. 110–29).
51
Lord Bingham utilises a definition of the rule of law close to that of 2004 provided by the
UN Secretary-General. Bingham describes that the core of the rule of law is that ‘all persons and
authorities within the state, whether public or private, should be bound by and entitled to the
benefit of laws publically made, taking effect (generally) in the future and publicly administered in
the courts’, p. 37.
52
The list includes provisions addressing the right to life, the prohibition of torture, the
prohibition of slavery and forced labour, the right to liberty and security, the right to a fair trial,
the principle of legality (no punishment without law), the right to respect for private and family
life, freedom of thought, conscience and religion freedom of expression, freedom of assembly and
association, the right to marry, freedom from discrimination, the protection of property, and the
right to education, pp. 66–84.
53
The Siracusa Principles, para. 16, Limburg principle 49.
54
The Siracusa Principles, para. 18, Limburg principle 51.
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The independence of the judiciary and the right to fair trial serve as a procedural
means to safeguard both the separation of powers and the rule of law. The requirement
of competence, independence and impartiality of a tribunal is included in article 14 of the
ICCPR. It is considered an absolute right that is not subject to any exception.55 Even in
the context of armed conflict, there are certain elements of the right to a fair trial explicitly
guaranteed under international humanitarian law, found inter alia in Article 3 Common
to the Geneva Conventions.56 As the UN Human Rights Committee has stressed that the
principles of legality and the rule of law require that some fundamental requirements of
fair trial are respected during a state of emergency: only a court of law may try and convict
a person for a criminal offence and the presumption of innocence must be respected.
Additionally, in order to protect non-derogable rights, the right to take proceedings before
a court to enable the court to decide without delay on the lawfulness of detention, must
not be diminished by a State party’s decision to derogate from the Covenant.57
2. Equality
It is now fully accepted that equality before the law is an important factor in upholding
the rule of law, requiring examination of the objectives and content of laws and policies,
and whether they have any disparate impact leading to direct or indirect discrimination.
Direct discrimination occurs when an individual is treated less favourably than another
person in a similar situation for a reason related to a prohibited ground; while indirect
discrimination refers to laws, policies or practices which appear neutral at face value,
but have a disproportionate impact on the exercise of human rights in the context of a
prohibited ground of discrimination.58
The classical prohibited grounds of discrimination are set out in the UDHR, ICCPR,
and ICESCR and include race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status. These grounds have been
55
As the UN Human Rights Committee, which monitors the implementation of the ICCPR,
indicated:
The requirement of independence refers, in particular, to the procedure and qualifications for
the appointment of judges, and guarantees relating to their security of tenure until a mandatory
retirement age or the expiry of their term of office, where such exist, the conditions governing
promotion, transfer, suspension and cessation of their functions, and the actual independence of
the judiciary from political interference by the executive branch and legislature.
Human Rights Committee, General Comment No. 32, Art. 14: Right to equality before courts
and tribunals and to a fair trial, para. 19 (CCPR/C/GC/32) 23 August 2007. The Committee further
stressed that States must take specific measures to guarantee the independence of the judiciary,
protecting judges from any form of political influence. Concluding observations, Slovakia,
CCPR/C/79/Add.79 (1997), para. 18.
56
See Louise Doswald-Beck, ‘Judicial Guarantees under Common Article 3’, in Andrew
Clapham, Paola Gaeta, and Marco Sassòli, (eds), The 1949 Geneva Conventions: A Commentary
Oxford University Press (2015), pp. 469–94.
57
General Comment no. 29, states of emergency (art. 4), CCPR/C/21/Rev.1/Add.11, 31 August
2001, para 16.
58
See para. 10 of General Comment 20 of the Committee on Economic, Social and Cultural
Rights, E/C.12/GC/20, 2 July 2009.
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e xpanding and re-formulated to address contemporary concerns. For instance, discrimi-

nation on the basis of age, disability, gender or sexual orientation is now outlawed under
these same treaties. Emphasis is also being placed on institutions that bring about equality,
such as independent national human rights institutions.59
The concept of equality is increasingly shifting from reactive to proactive measures.60
While as a general proposition laws, policies, and practices that explicitly lead to the
debasement of the rights of individuals are inconsistent with the rule of law, special
measures that aim to securing adequate advancement of certain rights by disadvan-
taged groups are compatible with the rule of law and are encouraged by human rights
norms.61
3. Participation
Effective participation in public affairs is not only an essential principle of a representa-

tive government, but is also a human right. Human rights law protects the right of every
citizen to take part in the conduct of public affairs, the right to vote and to be elected and
the right to have access to public service.62 This can be guaranteed through genuine direct
or indirect political representation of various sectors of society but requires periodic
and genuine elections, and the establishment of an electoral system characterised by its
transparency and impartiality.
Public participation rights encompass the right to be consulted at each phase of
legislative drafting and policymaking; to voice opinions and criticism; and the right
to submit proposals aimed at improving the functioning and inclusivity of all State
bodies.63
Participation is an enabling right. It includes empowerment to give individuals the
capacities, capabilities and access needed to change their own lives, improve their own
communities and influence their own destinies. A society which is educated about their
rights and responsibilities, including through national human rights curricula, teachers
trained in education for human rights and democracy, and far-reaching public informa-
tion on human rights and the rule of law, offers the best hope of securing and maintaining
a rule of law culture.
As a study by the Office of the High Commissioner for Human Rights (OHCHR)
concluded, full and effective participation in political and public affairs is best
59
Ibid.
60
Ibid.
61
See General Recommendation No. 32 ‘The meaning and scope of special measures in
the International Convention on the Elimination of Racial Discrimination’ Committee on the
Elimination of Racial Discrimination, CERD/C/GC/32, 24 September 2009.
62
See art. 21 of the UDHR and art. 25 the ICCPR. http://www.ohchr.org/EN/Issues/Pages/
EqualParticipation.aspx. https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/163/95/PDF/
G1516395.pdf ?OpenElement.
63
See Convention on the Rights of Persons with Disabilities (2006); Declaration on the
Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect
Universally Recognized Human Rights and Fundamental Freedoms, RES/53/144 (1998) art. 8; also
A/HRC/13/23, paras 31–33 and 52.
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ensured when the right itself is recognised in domestic law.64 For it to be meaningful,
it should be enforceable by law and its denial should be open to judicial challenge.
Appropriate remedies should be available if a violation is established. As OHCHR
indicates, legal frameworks that include the explicit right of individuals and groups
to participate in the design, implementation and evaluation of any policy, programme
or strategy that affects their rights, at the local, national, and international levels are
most conducive to the full realisation of the right to participate in political and public
affairs.65
4. Transparency
The law should not only be understood by judges, public officials and for lawyers, it must
be accessible to the public as a whole. This assumes that law should be enacted through
a transparent process and the institutions administering it should be transparent too.
Transparency not only helps foster the stability and predictability of the government, it
also ensures that information is available to enable maximum advantage to be taken of
the various opportunities created at the national and international level. Transparency
is essential for the realisation of rights, whether they relate to the exercise of emergency
powers, the allocation of available resources in the context of progressively achieving
the full realisation of economic, social and cultural rights, or rights related to the media,
elections, and the treatment of prisoners.
Corruption and abuse of power thrive under systems that are not transparent. Under
the transparency principle, society at large is able to monitor States’ compliance with
their obligations and thus ensure that the negotiated balance between rights and duties is
respected. This requires a strong civil society that is adequately trained and equipped, as
well as effective non-governmental human rights organisations, women’s groups, labour
unions, and community organisations, committed to human rights standards and vigilant
in their demands for the rule of law.
It should be kept in mind that the effectiveness of monitoring the State’s action depends
on access to quality information. Information that is free of charge, relevant, up-to-date,
understandable, and made available well in advance of any participatory process enables
individuals and communities to make informed choices.66 Free, responsible, and flourish-
ing mass media, trained in and committed to equality, tolerance, and the promotion
of human rights, is equally essential. The work of media professionals in reporting on
issues such as human rights violations, corruption, flawed political campaigns and elec-
tion processes, as well as in reporting on armed conflict and civil unrest is crucial to the
functioning of democratic institutions under the rule of law.
64
A/HRC/30/6, para. 71. https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/163/95/PD
F/G1516395.pdf ?OpenElement.
65
Ibid. para. 72.
66
Ibid., para. 41.
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5. Accountability
Any system based on checks and balances must embody a comprehensive understanding
of the need for accountability. A system of government established under the rule of
law ensures the availability of mechanisms for conflict resolution, whether judicial or
non-judicial, and effective remedies to address possible violations and transgressions. The
system must also assure that such mechanisms and remedies are accessible to all, function
in a manner that respects international standards and is backed by State commitment to
accountable government.
Under human rights law, States have an obligation to guarantee every victim of a
human rights violation the right to remedy. The core of systems based on the rule of law
is a strong independent judiciary, adequately empowered, financed, equipped, and trained
to uphold human rights in the administration of justice. More widely an effective justice
sector including adequate facilities and national training regimes for lawyers, judges,
prosecutors, police, and prison officials is also essential.
Ending impunity for human rights violations is today a fundamental aspect of further-
ing the rule of law. Independent national and international commissions of inquiry pave
the way for the determination of facts and identification of remedial measures. Also,
national, regional, and international judiciaries have a specific role to play in addressing
crimes of concern to the international community as a whole, such as genocide, war
crimes and crimes against humanity. When the State is unwilling or unable to put an end
to impunity for such crimes, the international system must step in. Where societies are
undergoing the painful process of transition from conflict or wide-spread human rights
abuses, accountability itself must be institutionalized, following effective consultation
processes, through appropriate tribunals, truth commissions, reparations and institutional
reform.
III. MEASURING PERFORMANCE
For human rights and the rule of law to have a practical impact, the efforts to attain them
must be measurable. This requires thorough work, not only in defining some measure-
ment indicators, but also in clarifying the objectives, mechanisms, and fora in which such
efforts could take place in a credible way. Intergovernmental organisations that have
human rights and the rule of law in their founding documents have become the main space
in which this discussion is taking place.
The intergovernmental system has grown significantly since 1945 with both interna-
tional and regional configuration and global and sectoral agendas. For these organisa-
tions, gauging progress in attaining the basic values for which the organisation was created
is increasingly essential for their relevance and legitimacy. This has resulted in multiple
assessment approaches, including appreciative and more critical inquiry tools, with the
aim of periodically checking in on performance.
The section below provides an overview of the how performance in the human rights
and rule of law are measured, for what purpose and by who.
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1. Assessing Performance in the Human Rights Field
Human rights work is built around monitoring and public reporting on States’ adherence
to their legal obligations under human rights law. The assessments are done in large
part either by national or international human rights non-governmental organisations
(NGOs), or by national human rights institutions; sometimes the assessments are carried
out by other States.67 The annual reports of Amnesty International and Human Rights
Watch provide a fair understanding of the state of human rights in that year reflecting
developments in selected areas, but without ranking.68 Only one organisation ranks the
performance of States, Freedom House. It compares the performance of States on the basis
of ‘numerical ratings and descriptive texts for each country and a select group of related
and disputed territories’.69 It is worth noting in this context the Human Development
Index developed by the UN Development Program (UNDP). It measures three other
dimensions: a long and healthy life; being knowledgeable; and having a decent standard
of living;70 these indices are then combined to establish a ranking of countries. While this
is not a human rights index per se, it does allow the comparison of the a ttainment of some
human rights, particularly in the economic and social sphere.
There are also assessments that take place in the context of intergovernmental work.
The United Nations system of assessing States’ performance in the human rights field is
built around a web of such mechanisms that publicly report on the human rights situation
in each country assessing them against each State’s human rights obligations. As member-
ship organisations, assessments carried out by bodies such as the UN Human Rights
Council often aim at exerting peer pressure on a particular State, sometimes affecting
the membership of the particular State in that body. These mechanisms also include an
assessment of the rule of law institutions.
a. Establishing criteria for membership

In his 1970 Nobel Lecture, Literature Laureate Alexandr Solzhenitsyn decried an immoral
world.71 He said, ‘It is not a United Nations Organization but a United Governments
Organization where all governments stand equal; those which are freely elected, those
imposed forcibly, and those which have seized power with weapons.’ He denounced the
67
See, e.g, the US State Department annual Country Reports on Human Rights Practices,
known as ‘the State Department Human Rights Reports’. The reports are submitted to the US
Congress in accordance with the Foreign Assistance Act of 1961 and the Trade Act of 1974. They
cover all countries receiving assistance and all United Nations member states, https://www.state.
gov/j/drl/rls/hrrpt/.
The EU also publishes an Annual Report on Human Rights and Democracy in the World,
which covers the actions and policies it has undertaken in pursuit of its goals to promote uni-
versal respect for fundamental rights and freedoms. See e.g, http://www.consilium.europa.eu/en/
documents-publications/publications/2016/eu-annual-report-human-rights-democracy-world-2015/.
68
See e.g, https://www.amnesty.org/en/latest/research/2017/02/amnesty-international-annual-rep
ort-201617/ https://www.hrw.org/world-report/2017.
69
The 2016 edition covers developments in 195 countries and 15 territories from January 1, 2015,
through December 31, 2015. https://freedomhouse.org/report/freedom-world-2016/methodology.
70
http://hdr.undp.org/en/content/human-development-index-hdi.
71
http://www.nobelprize.org/nobel_prizes/literature/laureates/1970/solzhenitsyn-lecture.html.
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UN because it ‘made no effort’ to make the Universal Declaration of Human Rights, an

‘obligatory’ condition of membership of the Organization. In this way, he said the UN:
[t]hus betrayed those humble people into the will of the governments which they had not
chosen.’72
In fact, as a global organization of States, membership of the UN bodies is determined

on very political terms, even if the UN Charter limits new membership to ‘peace-loving
states’ which accept the obligations contained in the present Charter and, in the judgment
of the Organization, are able and willing to carry out these obligations.73
With the establishment of the UN Human Rights Council in 2005 some criteria
for membership to a UN inter-governmental body were put in place.74 The resolution
establishing the Council requires that when choosing its 47 Member States, the General
Assembly must take into account the candidate States’ contribution to the promotion and
protection of human rights, as well as their voluntary pledges and commitments in this
regard, with candidates required to make their pledges public. These pledges however have
not proved to play a major role in assessing a particular government’s commitments to
human rights. Moreover, these pledges are not a requirement, but just one of the elements
that could be taken into account when assessing candidacies; nothing prevents a State that
has not made any pledges from being elected.75
Membership of the Human Rights Council cannot be taken for granted however, as
it can be suspended and there is a precedent in this regard. Against the background of
deep concern about the situation in that country in the wake of Muammar Al-Qadhafi’s
violent crackdown on anti-government protestors, the UN General Assembly suspended
Libya’s membership in the Human Rights Council on 1 March 2011.76 This suspension
came at the request of the Council itself a few days earlier on 25 February. The Council
then convened a special session to discuss the human rights situation in Libya, which
was one of its members. This resulted in a unanimous recommendation to the General
Assembly to suspend Libya’s membership because of gross human rights violations. The
Council also decided to urgently dispatch an independent, international commission of
inquiry.77
Important assessments also take place at the regional level. For instance, respect for the
rule of law is actually a prerequisite for membership of the European Union (EU). The
1993 Copenhagen criteria demanded in part that to become a member the candidate must
have: ‘achieved stability of institutions guaranteeing democracy, the rule of law, human
rights and respect for and protection of minorities’. The Treaty of European Union in
turn has made respect for these values the foundation of the European Union and any
72
Ibid.
73
Art. 4(1).
74
The UN Human Rights Council was created by the United Nations General Assembly on 15
March 2006 by resolution 60/251. http://www.ohchr.org/EN/HRBodies/HRC/Pages/AboutCouncil.
aspx.
75
See OP8 of GA Resolution 60/251.
76
http://www.un.org/press/en/2011/ga11050.doc.htm.
77
http://www.ohchr.org/EN/NewsEvents/Pages/HRCSpecialSessionLibya.aspx.
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European State that respects these values and is committed to promoting them may apply
for membership.78
In March 2014, the European Commission adopted a Framework to strengthen the
Rule of Law.79 The objective of the Framework is to prevent, through a dialogue with the
Member State concerned, an emerging systemic threat to the rule of law escalating into
a situation where the Commission would need to make use of its power of issuing a pro-
posal to trigger sanctions, including suspension from the EU. It establishes a three-stage
process: a Commission assessment; a Commission recommendation; and monitoring of
the Member State’s follow-up to the Commission’s recommendation.80
The Framework embeds the rule of law in human rights and relies significantly on the
jurisprudence of the European Court of Human Rights. However, it does not adopt a
definition of the rule of law, considering that the precise content of the principles and
standards stemming from this concept ‘may vary at national level, depending on each
Member State’s constitutional system’.81 Relying on the jurisprudence and precedents of
European judicial institutions, it nevertheless identifies some principles that define the
core meaning of the rule of law as a common value of the EU. These include, legality,
which the Framework states ‘implies a transparent, accountable, democratic and pluralis-
tic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive
powers; independent and impartial courts; effective judicial review including respect for
fundamental rights; and equality before the law’.82
Under this Framework, the European Commission initiated for the first time a
structured dialogue with the Polish government with regard to its national legislation
affecting the powers and composition of the constitutional tribunal and the management
of state TV and radio broadcasters.83 This procedure is used prior to triggering the EU
mechanisms for preventing, and sanctioning, serious breaches of common EU values by
Member States. It includes the power to suspend certain membership rights of a Member
State, including voting rights in the Council.
b. Establishing assessment mechanisms

The UN Human Rights Council incorporated some of the key mechanisms of the
former UN Commission on Human Rights and added to them. The ‘Special Procedure’
is a system that was developed by the former UN Commission on Human Rights and
now is maintained by the UN Human Rights Council. As of 24 March 2017, there
are 43 thematic and 13 country mandates,84 including a working group considering
individual cases of arbitrary detention, a Special Rapporteur on the independence
of judges and lawyers, and a special rapporteur on the promotion of truth, justice,
78
Arts 2 and 49.
79
http://ec.europa.eu/justice/effective-justice/files/com_2014_158_en.pdf.
80
http://ec.europa.eu/justice/effective-justice/rule-of-law/index_en.htm.
81
http://ec.europa.eu/justice/effective-justice/files/com_2014_158_en.pdf, at 4.
82
http://ec.europa.eu/justice/effective-justice/files/com_2014_158_en.pdf, at 4, emphasis and
footnote omitted.
83
http://www.europarl.europa.eu/legislative-train/theme-area-of-justice-and-fundamental-right
s/file-establishing-of-an-eu-mechanism-on-democracy-the-rule-of-law-and-fund-rights.
84
http://www.ohchr.org/EN/HRBodies/SP/Pages/Welcomepage.aspx.
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reparations, and guarantees of non-repetition. These Rapporteurs conduct country

visits, receive complaints, analyse trends, and publicly report on the implementation of
specific rights.85
There are also committees of independent experts, mostly established by the treaties
themselves that monitor implementation of the core international human rights treaties.86
Following a structured dialogue with a specific country, they issue observations and
recommendations in light of the fact that each State party to a treaty has an obligation
to take steps to ensure that everyone subject to a State’s jurisdiction can enjoy the rights
set out in the treaty.
The UN Human Rights Council’s Universal Periodic Review brings all these elements
together for a structured dialogue regarding a State’s human rights performance.87
Once every four years, each UN Member State is given the opportunity to declare what
actions they have taken to improve the human rights situations in their country and to
overcome challenges to the enjoyment of human rights. A peer assessment follows on
the basis of information provided by the State under review, information provided by
the UN itself, and information from other stakeholders including national human rights
institutions and NGOs. In presenting this information, the OHCHR typically includes
a chapter in each report on the administration of justice, including impunity and the
rule of law.
c. Developing a digital database

Although the OHCHR does not rank States on the basis of their human rights perfor-
mance, it provides important information about how human rights can be measured.
Modern digital capabilities have allowed OHCHR to develop a searchable data-base,
called the Universal Human Rights Index88 that is accessible throughout the world. This
provides an easy access to country-specific human rights information emanating from
international human rights mechanisms in the UN system: the Treaty Bodies, the Special
Procedures and the UPR. The Index allows the user to find out about human rights issues
worldwide, and to see how the legal interpretation of international human rights law has
evolved over the past years.
85
Ibid.
86
There are nine core international human rights instruments: the International Convention
on the Elimination of All Forms of Racial Discrimination; the International Covenant on Civil
and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the
Convention on the Elimination of All Forms of Discrimination against Women; the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention
on the Rights of the Child; the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families; the International Convention for the Protection
of All Persons from Enforced Disappearance; and the Convention on the Rights of Persons with
Disabilities. Each of these instruments has established a committee of experts to monitor imple-
mentation of the treaty provisions by its States parties. Some of the treaties are supplemented by
optional protocols dealing with specific concerns whereas the Optional Protocol to the Convention
against Torture establishes a committee of experts. http://www.ohchr.org/EN/ProfessionalInterest/
Pages/CoreInstruments.aspx.
87
http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx.
88
http://uhri.ohchr.org/en.
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2. Assessing Performance in the Rule of Law Field
There is no separate mechanism within the UN system to report on rule of law perfor-
mance and rule of law assessments continue to prove difficult, particularly in the absence
of a legally binding instrument that defines what the rule of law is.
Situations of internal armed conflict, where major human rights violations occur, are
seen as a marker for the collapse of the rule of law. While human rights are frequently
monitored in these situations, the functioning of rule of law institutions is often difficult
to assess. To assist in filling this gap, the UN Department of Peacekeeping Operations
(DPKO) and OHCHR developed a tool to monitor changes in the performance and
fundamental characteristics of criminal justice institutions in conflict and post-conflict
situations, known as the UN Rule of Law Indicators. These are a set of indicators and
empirically-based approaches to measure the strengths and effectiveness of law enforce-
ment, judicial and correctional institutions. In contrast to some other measurement tools,
these indicators are designed to highlight apparent successes and shortcomings within
institutions and to monitor changes over time within countries; it is not meant to support
direct comparisons between countries or rank them. The indicators refer, as they should,
to all relevant international human rights and criminal justice norms and standards, but is
not designed to assess compliance with such norms and standards. This instrument is not
a substitute for a detailed assessment of the capacity or performance of criminal justice
institutions, including for programmatic purposes.89
Other institutions have attempted to measure and compere the rule of law perfor-
mance of various countries. For instance, there are proposals regarding the establishment
of a European Union Scoreboard on Democracy, the Rule of Law, and Fundamental
Rights.90 More globally, the World Bank uses a ranking of States in accordance with
Governance Indicators it has developed and has been using since 1996. These indicators
include the rule of law as one of the six key dimensions of governance:91 it measures the
‘perceptions of the extent to which agents have confidence in and abide by the rules of
society, and in particular the quality of contract enforcement, property rights, the police,
and the courts, as well as the likelihood of crime and violence’.92 By contrast, while the
UNDP provides assistance in the rule of law area as is mentioned below, it does not
include the rule of law as neither a dimension nor as measurable indices in its Human
Development Index.93
The World Justice Project (WJP) is a non-governmental source for digital data on the
rule of law.94 The organisation has adopted its own operational definition of the rule
89
http://www.un.org/en/events/peacekeepersday/2011/publications/un_rule_of_law_indicators.
pdf.
90
See http://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_IDA
(2016)579328.
91
The other five are: voice and accountability; political stability and lack of violence; govern-
ment effectiveness; regulatory quality; and control of corruption. http://info.worldbank.org/
governance/wgi/#home.
92
http://info.worldbank.org/governance/wgi/#doc.
93
http://hdr.undp.org/en/content/human-development-index-hdi.
94
http://worldjusticeproject.org/.
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of law placing human rights at its midst.95 The 2016 WJP Rule of Law Index, which
measured how the rule of law is experienced by ordinary people around the globe,
assessed performance on the basis of 44 indicators organised around eight themes. These
themes are: constraints on government powers; absence of corruption; open government;
fundamental rights; order and security; regulatory enforcement; civil justice; and criminal
justice.96
Making the link between human rights, rule of law and democracy measurements,
the Arab Democracy Index provides an assessment of the democratic transition in
selected countries based on the measurement of some 40 key indicators. 97 It is based on
information and opinion polls. For instance, the 2016 report measured rights, freedoms,
equality, social justice, and the rule of law situation in ten countries in the region. One of
its significant conclusions is that ‘four years after the Arab Spring, the scores for Respect
for Human Rights declined by 49 points, Equality and Social Justice declined by 32 points,
the Presence of Strong Public Institutions fell by 16 points, and the score for the Rule of
Law increased noticeably by 114 points’.98 The increase in the rule of law score indicates,
as the report suggests, that given the situation of insecurity in the region, States invested in
the law and order institutions rather than other values, including human rights and social
justice.99 The result is an overall decline of the State performance on the three other values
the Index is measuring and ironically, perhaps more insecurity.
IV. HUMAN RIGHTS AND RULE OF LAW ASSISTANCE
Following the collapse of the Soviet Union, an intensified effort to assist States towards
adopting democratic structures was undertaken. The approach involved institution build-
ing towards opening the economies of the Eastern bloc towards free market and foreign
investment. At the core of such programmes were concerns about property rights and a
legal system that could facilitate the integration of these former soviet bloc countries into
the world economy.
95
The WJP understands the rule of law as a system in which follows four universal principles:
accountability of the government and state officials; equality before laws that protect human rights;
transparency in law-making and enforcement; and a competent and independent judiciary.
96
The exact formulation is as follows:
1. The government and its officials and agents as well as individuals and private entities are
accountable under the law;
2. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental
rights, including the security of persons and property and certain core human rights;
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and
efficient;
4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals
who are of sufficient number, have adequate resources, and reflect the makeup of the com-
munities they serve. http://worldjusticeproject.org/factors.
97
The Index is published by the Arab Reform Initiative and the Palestinian Center for Policy
and Survey Research, in partnership with ten research centers in the Arab world http://www.arab-
reform.net/en/node/285.
98
http://www.arab-reform.net/en/node/1057.
99
Arab Democracy Index 5, Arabic, p. 33.
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The human rights interest was evident as the Eastern European countries started to
separate from the Soviet Union and aspire to join the Council of Europe. As a result of
becoming party to the European Convention of Human Rights, they had to bring their
laws and policies in conformity with this new instrument. Major investment in assisting
States in human rights and the rule of law ensued.
In March 2008, the Economist tackled head on the question of economics and the rule
of law, arguing that while the rule of law is usually thought of as a political or legal matter,
it had emerged as an important aspect of the economic sphere.100 The premise of the piece
was that the collapse of the Soviet Union and the financial crisis of the 1990s had resulted
in an economic interest in the rule of law. Economic research led to a simple conclusion:
‘the better the rule of law, the richer the nation’.101 Foreign governments and aid agen-
cies, including the World Bank, therefore started investing in legal institutions, training
judges, reforming prisons, and supporting prosecution. The success of these efforts varied
considerably, prompting research that suggested the problem was the lack of depth of
knowledge about how the rule of law works in practice, particularly how it develops in
various political and social contexts beyond the repetition of specific models.102
Influential studies showed that much of the problem rests in the broad understanding
of the rule of law itself, and the place of individual freedoms within this concept. The
studies described two competing understandings of this concept, terming one as ‘thick’
approach and other as the ‘thin’ one.103 The so-called thick understanding of the rule of
law places the legal protection of all human rights at its core. The thin understanding
gives the rule a more formal meaning with a focus on procedural aspects particularly
with regard to order, stability and predictability, property rights and the efficiency of the
administration of justice.
In 2008 a report of the Commission on the Legal Empowerment of the Poor brought
forward a poverty reduction approach,104 identifying four pillars to enhance the poor’s
ability to benefit from the law: access to justice and the rule of law, property rights; labour
rights; and business rights.105 A year later, the UN Secretary-General described his own
approach to the topic, moving the concept from a rather thin approach to a much thicker
one. The report places the full range of human rights within the concept of legal empow-
erment and recognises that a common characteristic of all communities living in poverty
is that they do not have equal access to government institutions and services that protect
and promote human rights. It stresses that the poor have few avenues to adequately voice
their concerns and to seek redress against injustice, leading to the conclusion that poverty
can be seen as both the cause, and consequence of the exclusion from the rule of law.106
100
http://www.economist.com/node/10849115.
101
Ibid., p. 2.
102
See in general the excellent Working Paper, Promoting the Rule of Law Abroad: The
Problem of Knowledge, by Thomas Carothers, Carnegie Endowment for International Peace, Rule
of Law Series, Number 34, January 2003.
103
May (n 15) p. 56.
104
Commission on Legal Empowerment of the Poor (2008). Making The Law Work for
Everyone. http://undp.org/legalempowerment.
105
Ibid., p. 31.
106
Legal Empowerment of the poor and eradication of poverty, Report of the Secretary-
General, (A/64/133), July 2009, para. 8.
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In practical terms, the UN pursues a variety of methods that incorporate the rule of law
into its peace and security, development, and human rights agenda. Its efforts encompass
a wide range of work-streams: from assistance to bringing constitutions and laws in
conformity with human rights standards, to the actual establishment of international
and hybrid courts and non-judicial mechanisms, to supporting the independence and
impartiality of courts, to training officials and enhancing access to justice, to supporting
free media and enhancing the democratic and civic space.107 For instance, the UNDP
broadly links human rights and the rule of law to its development assistance. Concerned
with development and the eradication of poverty, the UNDP considers issues such as
improving access to justice and remedies. Additionally, it works on addressing sexual- and
gender-based violence and increasing women’s participation and leadership in justice and
security institutions, strengthening the work of National Human Rights Institutions,
and promoting the application of the human rights-based approach to development
programming and national planning processes.108
On the other hand, the World Bank provides an example of the thin approach. Its
work is largely focused on improving the performance of justice sector institutions;
advising on criminal justice reform and citizen security; generating learning and designing
interventions to promote access to justice and legal empowerment; promoting justice in
development sectors such as land, extractives, urban development, as well as reforming
the justice sector for a better business and investment climate.109 Its engagement in human
rights is limited as a result of old understandings of human rights that see them as
interfering in States’ political affairs, which are acts prohibited under the Bank’s Articles
of Agreement.110
CONCLUSION
As this chapter suggests, human rights and the rule of law are concepts that have existed
for some time and are anchored in legal and ethical discourse about how societies and
people should be governed. The extent to which they overlap has been the subject of
debate for a long time. Nowadays, this debate has some practical consequences, as we
have seen, in terms of membership of international bodies, monitoring performance,
and providing assistance. As May indicates it also has implications beyond these areas,
including for any cultural shift in a State’s behaviour as a law-abiding entity: raising the
questions which law it abides by and for whose benefit?111 While one can argue about the
contours, the reader is invited not to get stuck in a quest for a definitional box, but to
107
See e.g, a list of these activities in the SG report ‘strengthening and coordinating United
Nations rule of law activities’ (A/66/133), 8 August 2011.
108
See, UNDP Rule of Law Annual Report 2016 http://www.undp.org/content/undp/en/
home/librarypage/democratic-governance/access_to_justiceandruleoflaw/rule-of-law-annual-
report-2016.html.
109
https://www.un.org/ruleoflaw/un-and-the-rule-of-law/world-bank/.
110
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16517&LangID
=E.
111
May (n 15) pp. 188–9.
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go deeper into the very essence of the rule of law.112 There, a growing space for human
rights will be found and it has practical implications as a unique project that measures
simultaneously these two values.
As Dr. Martin Luther King reminds us: ‘. . . law and order exist for the purpose of
establishing justice, and that when they fail to do this they become the dangerously
structured dams that block the flow of social progress.’113 The rule of law is there to work
for justice; once it is separated from human rights, injustice is likely to occur leading to
less order and more insecurity. Whatever theoretical framework we adopt, we must ensure
that each person’s human rights are not scarified.
112
Ibid., p. 56.
113
Letter from the Birmingham Jail, p. 10. website: http://okra.stanford.edu/transcription/doc
ument_images/undecided/630416-019.pdf.
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M4581 - MAY_9781786432438_t.indd 380 01/08/2018 14:47
PART V
APPLYING THE RULE OF LAW
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23. The rule of law from a law and economics
perspective*
Mariana Mota Prado
Historically, the rule of law has not been one of the core or central preoccupations of
economic analysis of the law, also known as law and economics (L&E). Born in the United
States in the early 1960s, L&E is one of the most influential methods of legal analysis.1
Using the economic assumption that individuals are rational maximisers, and applying
price theory to the study the consequences of legal rules,2 L&E textbooks focus on
specific areas of the law, such as antitrust, torts, contracts and, more controversially,
criminal law.3 In the investigations of these topics, the legal rules involved (e.g. the legal
rules governing contractual breach, or tort liability) are typically well-defined, and the
effects of such legal rules are easily measurable and quantifiable (e.g. how much money
was allocated to each party, and how their behaviour is likely to change if these amounts
were modified). In contrast, the few L&E scholars who have investigated the rule of law
are confronted with a more amorphous and less constrained topic. This not only creates
a definitional challenge, but measuring outcomes will inevitably be more complex and
multi-faceted than it is in the case of a specific legal doctrine. This, in turn, makes it
difficult, if not impossible, to establish clear causal connections between the rule of law
(however defined) and changes in individual or organisational behaviour. In sum, analys-
ing the rule of law from an L&E perspective is significantly different from the inquiry
into particular legal doctrines that have historically been the focus of L&E scholarship.
* This chapter is largely based on Michael Trebilcock and Mariana Mota Prado, Advanced
Introduction to Law and Development (Edward Elgar Publishing 2014); and Michael Trebilcock
and Mariana Mota Prado, What Makes Poor Countries Poor? Institutional Determinants of
Development (Edward Elgar Publishing 2011). I am grateful to the valuable research assistance of
Viviane Albuquerque, Carlos Vacaflor Herrera and Matthew Marinett and to the comments and
suggestions of Ejan Mackaay, Michael J. Trebilcock and the editors of this volume. Any remaining
errors are mine.
1
Ejan Mackaay, ‘History of Law and Economics’, in Boudewijn Bouckaert and Gerrit De
Geest, Encyclopedia of Law and Economics: The History and Methodology of Law and Economics,
vol 1 (Edward Elgar Publishing 2000) 65–117.
2
Robert D Cooter and Thomas Ulen, Law and Economics (Book 2, 6th edn, Berkley Law
Books 2016) 1–10. See also Robert D Cooter, ‘Prices and Sanctions’ (1984) 84 Columbia Law
Review 1523.
3
Widely used L&E textbooks, with comprehensive subject indexes, do not include the term
‘rule of law’. See e.g. Cooter and Ulen (n 2) and Steven Shavell, Foundations of Economic Analysis
of Law (1st edn, Harvard University Press 2004). See also, Dani Rodrik, ‘What Does the ‘Rule
of law’ Mean?’ <http://rodrik.typepad.com/dani_rodriks_weblog/2007/11/what-does-the-r.html>
accessed 28 October 2016 (a blog post calling attention to the fact that A. Mitchell Polinsky and
Steven Shavell (eds), The Handbook on Law and Economics (1st edn, North Holland 2007) has
nothing on rule of law). One of the few, if not the only exception, is Richard A Posner, Economic
Analysis of Law (7th edn, Wolters Kluwer for Aspen Publishers 2007) s 8.7.
383
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This chapter maps how different L&E scholars have addressed three challenges: defin-
ing the rule of law; measuring outcomes; and assessing the role that the rule of law plays
in influencing human behaviour, and thus impacting economic outcomes. As the chapter
illustrates, the responses to these challenges vary significantly, and sometimes have little
overlap with each other. Nevertheless, one common theme emerges from all of these
analyses: the concern with whether and how law more generally, and the rule of law in
particular, promotes economic development. This chapter concludes by discussing how
the analysis of the rule of law from an L&E perspective blurs the lines between traditional
L&E, the development literature, and new institutional economics.
There is wide array of concepts of ‘rule of law’. Some divide them into two major catego-
ries: ‘procedural’ and ‘substantive’, depending upon whether the conception of the rule
of law in question includes only procedural norms or whether it is viewed as also giving
content to the law itself (such as the protection of basic property rights). Other authors
may prefer to label these two categories the ‘thin’ and ‘thick’ conceptions of the rule of
law.4 In either case, these categories are not watertight compartments, but can perhaps
best be viewed as two ends of a continuum upon which various interpretations of the
rule of law may fall.5 More complex categorisations of the various types of rule of law
concepts also exist. For example, Brian Tamanaha maintains the traditional distinction
between ‘procedural’ and ‘substantive’ formulations but differentiates between ‘thin’
and ‘thick’ versions of each based upon the number of requirements that any given
formulation attributes to the rule of law.6
Facing the risk of oversimplifying the rich and diverse set of definitions offered in the
literature, for the purposes of this brief survey, I will discuss rule of law formulations as
primarily falling on a single axis between ‘procedural’ and ‘substantive’ conceptions.
Those formulations closest to the procedural end of the continuum view the rule of
law as comprising only procedural norms necessary to the basic functioning of a public
legal system. These procedural rules can be regarded as what HLA Hart referred to as
the ‘secondary rules’ of a legal system that ‘provide for operations which lead [. . .] to
the creation or variation of duties and obligations,’ rather than the primary rules that
articulate those duties and obligations themselves.7 Perhaps the most famous articula-
tion of a procedural concept of the rule of law is that of the British jurist Albert Venn
Dicey in his Introduction to the Study of the Law of the Constitution.8 Dicey’s conception
4
See e.g. Michael J Trebilcock and Ronald J Daniels, Rule of law Reform and Development:
Charting the Fragile Path of Progress (Edward Elgar Publishing 2008) 1–57; Tom H Bingham, The
Rule of law (Penguin Group USA 2011) 65–6.
5
Christopher May, The Rule of Law: The Common Sense of Global Politics (Edward Elgar
Publishing 2014) 33–7, 36–8.
6
Brian Z Tamanaha, On the Rule of law: History, Politics, Theory (CUP 2004) 91.
7
HLA Hart, The Concept of Law (OUP 1961) 79.
8
Albert V Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Macmillan
Company 1915).
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The rule of law from a law and economics perspective 385
consisted of three primary attributes of the rule of law, only two of which are of par-
ticular relevance here: first, that no one could be punished except for ‘a distinct breach
of law established in the ordinary legal manner before the ordinary Courts of the land’;9
and second, that everyone be subject to the law of the land and to the jurisdiction of the
courts.10 He was particularly concerned with what he viewed as the ‘exercise by persons
in authority of wide, arbitrary, or discretionary powers’.11 Indeed, the limitation of
the exercise of arbitrary authority is sometimes conceived of as the central function of
the rule of law.12
Other theorists have constructed more robust articulations of the rule of law that still
fall towards the procedural end of the continuum. Lon Fuller famously described eight
core ‘principles of legality’: (i) laws must apply equally to everyone across a polity; (ii) laws
must be made public so as to be followed; (iii) laws must not apply retroactively; (iv) laws
must be clear enough to be followed; (v) laws must not be contradictory to each other;
(vi) laws must be possible to obey; (vii) laws must maintain some consistency over time;
and (viii) there must be congruence between official action and the stated law.13 Fuller
described these principles as ‘the inner morality of law’ that made law possible to exist.14
To the extent any authority attempted to implement a rule that did not accord with these
principles, the authority would have failed to make law.15
Joseph Raz articulated a procedural view of the rule of law that included much of
Fuller’s list, but added such principles as the requirement of open and fair hearings; an
absence of bias in adjudications; that the courts have the power to review compliance by
other authorities with the rule of law; that the courts be accessible; and that executive
discretion not be allowed to pervert the stated law.16 Raz, notably, is a critic of any ‘sub-
stantive’ formulations of the rule of law, arguing that including substantive political ideals
in the concept of the rule of law robs it of any useful function; a conception of the rule of
law that includes notions of what makes for good law would have to ‘propound a complete
social philosophy’.17 Instead, the virtue of the rule of law, for Raz, is that it makes the law
effective as a tool in the same way that being sharp makes a knife an effective tool. But, like
a knife, a legal system under the rule of law can be used as a tool to achieve both virtuous
and evil purposes: a thoroughly abusive and discriminatory legal system can still conform
perfectly to the rule of law.18 For instance, grossly unjust or immoral societies, such as
Nazi Germany or apartheid South Africa, might meet purely formalistic criteria, lacking,
as procedural conceptions do, any elements of basic civil and political rights.19 Thus, the
9
Ibid., 183.
10
Ibid., 189.
11
Ibid., 184.
12
See e.g. Lisa M Austin and Dennis Klimchuk, ‘Introduction’ in Lisa M. Austin and Dennis
Klimchuk, Private Law and the Rule of law (OUP 2015) 1.
13
Lon L Fuller, The Morality of Law (Revised ed, Yale University Press 1969) 49–91.
14
Ibid., 42.
15
Ibid., 41.
16
Joseph Raz, The Authority of Law: Essays on Law and Morality (OUP 1979) 210, 217–19.
17
Ibid., 211.
18
Ibid., 211–29.
19
Trebilcock and Daniels (n 4) 23–5.
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rule of law is a virtue a legal system can have in greater or lesser degree, but it is hardly the
only virtue, and it provides no guidance as to the content of the laws themselves.
Under the consequentialist lenses of L&E, there is a heavy focus on the economic
impact of these procedural conceptions. This is an issue that has also been addressed by
legal theorists and had been long debated before L&E scholarship achieved its current
prominence. For example, while not discussing economic impacts in depth, HLA Hart
noted the ‘inefficiency’ of any legal system without ‘secondary rules’ that establish entities
such as the courts, legislature, and officials to determine whether a breach of any primary
rule has been made and the procedure of adjudication. He also identifies these second-
ary rules as making possible basic economic relationships such as ‘the making of wills,
contracts, transfers of property, and many other voluntarily created structures of rights
and duties which typify life under law’.20 Likewise, Fuller argues that market economies
and the rule of law are closely interrelated and necessary conditions for each other as the
equality necessary for individual rights to function is best realised through a society of
traders. He bases this argument partially on the work of FA Hayek, paraphrasing him as
having predicted ‘a collapse of the rule law for any society which abandons the market
principle.’ For Fuller, ‘it is only under capitalism that the notion of the moral and legal
duty can reach its full development’ and thus allow for the rule of law. The relationship
goes both ways as the ‘economics of exchange is [. . .] based on two fixed point: property
and contract’ and his ‘principles of legality’ are necessary to make contract and property
law possible. However, he goes on to argue that while the principles of legality may estab-
lish the inner morality of the law that creates the legal conditions for economic exchange,
economic exchange itself should not be conducted according to those principles due to
the inefficiencies it would create.21
Max Weber argued that law was not only a reflection of the underlying structure of a
country’s economy, but could importantly shape it.22 Accordingly, capitalism requires a
‘formal’ and ‘rational’ legal system that allows disputes to be resolved based on systema-
tised, previously established rules. Such a legal system allows private actors to engage
in trade and investment free from constraints imposed by traditional rulers and with
predictable consequences. Weber also asserted that a hierarchical bureaucracy guided
by instrumental values is the only realistic way of administering such a legal system in a
large, complex society.
In contemporary scholarship, according to Richard Posner, procedural conceptions of
the rule of law are an important topic for L&E scholars in European civil law countries,23
where there is greater focus on the impersonal enforcement of rules and norms.24 In
20
Hart (n 7) 91, 94
21
Fuller (n 13) 24, 171.
22
Max Weber, Economy and Society (Guenther Roth and Claus Wittich eds, Ephraim
Fischoff. . . [et al.] tr, University of California Press 1979). David Trubek, ‘Max Weber on Law and
the Rise of Capitalism’ (1972) Wisconsin Law Review 720–53.
23
Richard A Posner, ‘Law and Economics in Common-Law, Civil-Law, and Developing
Nations’ (2004) 17 Ratio Juris 66.
24
See e.g. Jurgen Backhaus (ed.), The Elgar Companion to Law and Economics (Edward
Elgar Publishing 1999); Special Issue on Class Actions (2011) 32 The European Journal of Law
and Economics Issue 2; Stefan Voigt, Jerg Gutmann and P. Lars ‘Economic Growth and Judicial
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contrast, L&E scholars in the United States are mostly concerned with doctrinal issues, as
suggested earlier. While interesting, this claim has not been further explored or discussed
in the academic scholarship, which seems more preoccupied with explaining the reasons
why L&E is so prominent in the United States but has taken longer to develop and has
been far less influential elsewhere, especially in civil law countries. The hypotheses include,
among others, different legal doctrines and sources of law, language barriers, the structure
of legal education, and ideology.25 Perhaps one important exception to this is Michael
Trebilcock, one of the founders of L&E in Canada, who has adopted an enhanced
version of a procedural definition of the rule of law, suggesting it is the most defensible
conception in attempts to promote development reforms around the world.26
Those that take a more substantive view of the rule of law do not necessarily ignore
procedural issues, but add substantive issues to the list of essential tenets of a rule of law
system. The simplest formulation of the substantive view proposes that the quintessential
element of any rule of law system comprises effective institutions and processes to protect
private property rights.
John Locke, in his enormously influential discussion of the purposes and structure
of government, provided considerable support for a conception of the rule of law that
includes respect for property rights.27 For Locke, men take themselves out of the state of
nature by virtue of consenting to join a commonwealth, for which ‘[t]he great and chief
end [. . .] is the preservation of their property’.28 Locke reasoned that the state of nature
lacks many of the elements necessary for the protection of property, and thus society
must establish certain rules by which both the legislature and the judges of a society are
to operate to ensure its protection.29 He thus concluded that ‘whoever has the legislative
or supreme power of any commonwealth, is bound to govern by established standing laws,
promulgated and known to the people, and not by extemporary decrees; by indifferent
and upright judges, who are to decide controversies by those laws’.30 This articulation
of the limits of state authority closely mirrors the procedural formulation of the rule
of law, but due to the central place he gives to property, he adds to it that ‘the supreme
power cannot take from any man any part of his property without his own consent: for
the preservation of property being the end of government, and that for which men enter
Independence, A Dozen Years On: Cross-country Evidence using an Updated Set of Indicators’
(2005) 38 European Journal of Political Economy 197–211.
25
Robert Cooter and James Gordley, ‘Economic Analysis in Civil Law Countries: Past,
Present, Future’ (1991) 11 International Review of Law and Economics 261; Christian Kirchner,
‘The Difficult Reception of Law and Economics in Germany’ (1991) 11 International Review of
Law and Economics 277; Ejan Mackaay, Law and Economics for Civil Law Systems (Edward Elgar
Publishing 2013) 1–28; Boudewijn Bouckaert and Gerrit De Geest, Encyclopedia of Law and
Economics: The History and Methodology of Law and Economics, vol 1 (Edward Elgar Publishing
2000) 5; Juan Javier del Granado and M C Mirow, ‘The Future of the Economic Analysis of Law
in Latin America: A Proposal for Model Codes’ (2008) 83 Chicago Kent Law Review 293.
26
Trebilcock and Daniels (n 4). Michael J. Trebilcock, ‘Between Universalism and Relativism:
Reflections on the Evolution of Law and Development Studies’ (2016) 66(3) University of Toronto
Law Journal 330–52.
27
John Locke, Second Treatise of Government (1689).
28
Ibid., s 123, 124.
29
Ibid., s 124.
30
Ibid., s 131.
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into society, it necessarily supposes and requires, that the people should have property’.31
In this way, for Locke, property rights and the rule of law are inseparable: neither exists
without the other. Thus, a substantive conception of the rule of law follows from the
existence of the state.
Perhaps the best-known contemporary advocate of strong formal property rights
has been de Soto.32 Speaking of titling, he says that ‘[i]t is the unavailability of these
essential representations that explains why people who have adapted every other Western
invention, from the paper clip to the nuclear reactor, have not been able to produce suf-
ficient capital to make their domestic capitalism work’.33 In de Soto’s view, ‘[t]he formal
property system is capital’s hydroelectric plant’.34
Similarly, a number of pioneers in L&E have argued that security of tenure, if combined
with exclusive use, leads to resources being used more efficiently. For instance, Harold
Demsetz argued in 1967 that private property rights compel owners to internalise the
costs of their actions, and the same incentives were not observed in communal property
rights.35 One year later, Garrett Hardin, wrote the widely cited article ‘The tragedy of the
Commons,’ discussing how communal property allows people to externalise social costs
such as pollution onto society as a whole.36 Proponents of new institutional econom-
ics have also examined this claim. Douglass North, for example, argues that private
property rights raise the private rate of return of an activity closer to the social rate of
return, thereby spurring economic growth.37 When security of tenure is combined with
easy transferability of property, there is increased access to credit, which can increase
incentives for investment.38
Another set of authors argues that, in addition to property rights, a rule of law system
also encompasses effective enforcement of contracts.39 Along similar lines, one of the most
prominent contemporary L&E scholars, Richard Posner, emphasises the importance of
developing strong contracts and property rights regimes for fostering economic growth.40
The assumption is that the vulnerability experienced by at least one party to long-term, non-
simultaneous transactions creates a significant need for a credible third-party enforcement
mechanism. Credible third-party enforcement addresses the reluctance of the private sector
31
Ibid., s 138.
32
Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails
Everywhere Else (Basic Books 2000).
33
Ibid., 7.
34
Ibid., 47.
35
Harold Demsetz, ‘Toward a Theory of Property Rights’ (1967) 57 American Economic
Review 347, 348–9.
36
Garret Hardin, ‘The Tragedy of the Commons’ (1968) 162 Science 1245.
37
Douglass North, Structure and Change in Economic History (W W Norton & Company
1981) 6.
38
De Soto (n 32).
39
See, e.g. Kenneth W Dam, The Law-Growth Nexus: The Rule of law and Economic
Development (Brookings Institution Press 2006) 91. For an overview of these claims, see Kevin
Davis and Michael Trebilcock, ‘The Relationship between Law and Development: Optimists versus
Skeptics’ (2008) 56 American Journal of Comparative Law 895.
40
See Richard A Posner, ‘Creating a Legal Framework for Economic Development’ (1998) 13
The World Bank Research Observer 1: ‘A modernizing nation’s economic prosperity requires at least
a modest legal infrastructure centered on the protection of property and contract rights.’
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agents to participate in non-simultaneous economic transactions, which often entail signifi-

cant sunk costs, because of a lack of assured protection of the parties’ economic interests.41
The enforcement of contracts and protection of property rights is a prominent
topic in the development agenda, but not only because of its ability to promote
growth and efficient allocation of resources. Instead, these are perceived as legal
mechanisms that can contribute to poverty reduction. The Commission on the Legal
Empowerment of the Poor is a prominent United Nations-affiliated initiative that
embraces this assumption.42 Madeleine Albright, who co-chairs the commission with
Hernando de Soto, describes its work as attacking not only the symptoms, but also the
root causes, of poverty.43 While the Commission has a strong emphasis on property
rights reform, it is not limited to that. Its goals include ‘expanding access to credit
and other financial services; strengthening the rule of law through independent and
transparent institutions; simplifying government bureaucracy to create a better environ-
ment for business; and fostering participatory democracy through non-governmental
organisations’.44
Some L&E scholars have recently embraced this expanded list as part of the require-
ments for a legal system to promote economic growth. Cooter and Schaefer45 argue that
as businesses enter the small- and medium-sized enterprise (SME) sector, not only are
secure property rights a necessary condition for growth, but so too is access to arms-
length debt finance, typically through commercial banks. As businesses grow larger
still, they will often require access to public finance in the form of equity. Here Cooter
and Shaefer argue that legal prerequisites for these businesses to operate are not only
effective protection of private property rights and effective enforcement of contracts,
but also corporate law, securities law and bankruptcy law. These are necessary not only
to provide these businesses with the needed capital to engaged in productive activity, but
most importantly, to provide legal mechanisms that guarantee funding for innovation, the
engine of economic growth.46
The most recent and perhaps most prominent statement about the importance of
the rule of law for development was the declaration of the United Nations Sustainable
Development Goals (SDGs). Announced in 2015, a list of 17 SDGs replaced the
Millennium Development Goals, setting the next set of development targets, which aim
to end poverty by 2030. SDG number 16 focuses on peace, justice and strong institutions,
and is divided into 12 targets.47 The goal of ‘Peace’, for example, is aimed at ‘significantly
41
Oliver E Williamson, The Mechanisms of Governance (OUP 1996). See also Dam (n 39) 124–8.
42
For a more detailed discussion, see Chapter 25 in this volume.
43
Madeleine Albright, ‘It’s Time for Empowerment, the World in 2007’ (2006) The Economist
65.
44
Ibid.
45
Robert Cooter and Hans-Bernd Schaefer, Solomon’s Knot: How Law Can End the Poverty of
Nations (Princeton University Press, 2012) 27–38.
46
For a more detailed elaboration of this argument, known as endogenous growth theory, see
Paul M Romer, ‘The Origins of Endogenous Growth’ (1994) 8 Journal of Economic Perspectives 3,
3–22. Philippe Aghion and Peter Howitt, Endogenous Growth Theory (MIT Press, 1998).
47
UN Secretary-General, ‘Progress Towards the Sustainable Development Goals’ (United
Nations Economic and Social Council, E/2016/75) <http://www.un.org/ga/search/view_doc.asp?
symbol=E/2016/75> accessed 1 November 2016.
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reduc[ing] all forms of violence and related death rates everywhere’.48 The goal of justice,
in turn, seeks to ‘promote the rule of law at the national and international levels and
ensure equal access to justice for all’.49 While reinforcing the assumption that the rule of
law is associated with poverty reduction, as formulated by the Commission on the Legal
Empowerment of the Poor, SDG 16 does not provide much detail about the concept of
the rule of law that will be adopted. It also does not indicate how SDG 16 will overcome
the problems faced by the development community for at least two decades, and transform
a dismal track record of rule of law reforms in developing countries.50
In sum, there is a multitude of concepts of the rule of law that could be potentially
adopted by L&E scholars. The assumptions of L&E scholarship do not seem to prevent
scholars from adopting any of these definitions. Also, there are interesting overlaps
between the L&E analysis of rule of law and the development agenda, and the academic
literature on development, as we discuss in greater detail in the next section.
RULE OF LAW AND EFFICIENCY
The academic literature presents a multitude of reasons to promote the rule of law, and
while these can be multifaceted and complex, they can generally be classified into general
two categories: deontological or instrumental.51 In the first, the rule of law is conceived as
an end in itself. In a widely celebrated book, Development as Freedom, the Noble Laureate
in Economics, Amartya Sen, accepts that policies and institutions that increase per capita
income by increasing economic growth are instrumental in promoting development.
However, he argues that economic growth is not the ultimate end of development. In his
view, the ends of development should be focused on promoting individual freedom, in the
sense of enhancing the ability of individuals to choose to live lives that they have reason
to value.52 For Sen, freedom in various dimensions (political freedoms, economic facilities,
social opportunities, transparency guarantees and protective security) constitutes both the
means and ends of development. These freedoms are complementary, mutually reinforc-
ing, and promote more robust forms of individual agency and expand human capabilities,
opportunities, and functioning. Rule of law reforms are important to promote and secure
these freedoms.53 In this context, economic growth is important for what it enables individu-
48
‘Peace, Justice and Strong Institutions – United Nations Sustainable Development’ (UN
Sustainable Development Goals, 28 July 2016) <http://www.un.org/sustainabledevelopment/peace-
justice/> accessed 1 November 2016.
49
Ibid.
50
Trebilcock and Daniels (n 4).
51
For an explanation of the distinction between deontological and instrumental conceptions
of the rule of law, see ibid.
52
Amartya Sen, Development as Freedom (New York: Knopf, 1999). See also Martha C
Nussbaum, Creating Capabilities: The Human Development Approach (Cambridge, MA and
London: Belknap-Harvard University Press, 2011).
53
Amartya Sen, ‘The Rule of Legal and Judicial Reform in Development’, World Bank Legal
Conference, Washington, DC (June 5, 2000). But see Peter Boettke and J. Robert Subrick, ‘Rule of
Law, Development, and Human Capabilities’ (2003) 10 Supreme Court Economic Review 109–26,
arguing that there is no empirical evidence that rule of law enhances human capabilities.
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als, and the communities and societies of which they are members, to achieve. However,
according to Sen, economic growth is not the only means of promoting development.
In contrast, according to an instrumentalist or consequentialist view, the rule of law is a
means rather than an end in itself, i.e. it is simply an instrument to achieve desired outcomes
(e.g. promoting economic growth). Those subscribing to this view often acknowledge that
there are other strategies, rather than the rule of law, to achieve such outcomes. The ques-
tion is which one is the most effective. For instance, it is possible to argue that authoritarian
regimes often insulate the state from particularistic, special-interest group pressures, and
as a consequence are able to take a more comprehensive, single-minded and decisive
approach to pro-development policies that may entail short-run pain to secure long-term
gain.54 Proponents of this view often point to the post-war economic successes of East
Asian autocracies, including most recently China, as evidence that democracy and the
rule of law need not precede development, and could in fact deter or delay it. The counter-
argument is that while economic and social development can be achieved without rule of
law institutions, better and more sustainable results can be achieved through mechanisms
that offer the rule of law and checks on arbitrary use of power.55 While maintaining a
degree of ambiguity regarding what classifies as the rule of law, this instrumental view
often advocates for it as the preferred method to promote economic development.56
Due to its consequentialist tenure, L&E scholarship is more likely to adopt an instru-
mental conception of the rule of law: instead of focusing on the idea of the rule of law
as an end in itself, L&E scholarship explores the idea of the rule of law as means towards
other ends. More specifically, it questions whether the rule of law can promote efficient
and dynamic market economies and/or generate other welfare-enhancing outcomes. The
challenge faced by L&E approaches to the rule of law is to define and measure outcomes.
Focused on particular legal doctrines, traditional L&E scholarship deals with a relatively
well-defined set of outcomes. Take, for instance, the efficient breach hypothesis. It
assumes that if damages for breach of contract are too high (i.e. it is costly to breach a
contract), the contracting parties will perform even when it is inefficient to do so. The
reverse is also assumed: contracting parties will breach, even when it is inefficient to do
so, if the breach is costless. Thus, it is important to establish an optimal level of damages
for breach of contract so as to incentivise breach only when it is efficient to do so.57 In
contrast, an inquiry into the efficiency of rule of law systems encompasses measuring
54
This issue is especially pressing in the literature on the ‘Developmental State’. C. Johnson,
‘The Developmental State: Odyssey of a Concept’, in M. Woo-Cumings (ed.), The Developmental
State (Ithaca: Cornell University Press, 1999) 41. M. Robinson and G. White (eds), The Democratic
Developmental State: Politics and Institutional Design (New York: Oxford University Press, 1998) 8:
inherent in the process of constructing [a democratic developmental state] is a contradiction
between the tendency of formal democracies towards an incrementalist style of policy-making
on the one hand, and a set of developmental goals that often require fundamental changes in
policy direction, and the prevailing distribution of socio-economic and political power on the
other.
55
Gary Goodpaster, ‘Law Reform in Developing Countries’ in Tim Lindsey (ed.) Law Reform
in Developing and Transitional States (London: Routledge, 2007), 106–39.
56
For an overview, see May (n 5) Ch. 5.
57
Cooter and Ulen (n 2) 187–227.
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the efficiency of a myriad of transactions, which in turn require aggregate results, and is
therefore a very different exercise.
L&E scholarship may adopt at least two concepts of efficiency: micro-efficiency and
macro-efficiency.58 The example of the efficient breach hypothesis illustrates an analysis
using micro-efficiency,59 which ‘is based on an examination of particular legal doctrines
and attempts to determine if they are efficient’.60 Micro-efficiency focuses on how indi-
vidual behaviour is influenced by specific rules. In analysing the rule of law, in contrast,
L&E may need to resort, directly or indirectly to macro-efficiency, which considers the
overall efficiency of a system of rules and norms.61
(a) Rule of Law and Macro-efficiency
In trying to determine the overall efficiency of rule of law systems (however defined)
it is common for scholars to turn to economic growth or development as a measure of
macro-efficiency. For example, Rodrik, Subramanian and Trebbi62 estimate the respective
contributions of institutions, geography, and international trade in determining income
levels around the world. The authors use a number of measures of institutional quality
that capture the protection afforded to property rights as well as the strength of the rule
of law and find that the quality of institutions ‘trumps’ everything else. An increase in
institutional quality of one standard deviation, corresponding roughly to the difference
between measured institutional quality in Bolivia and South Korea, produces a two log-
point rise in per capita incomes, or a 6.4-fold difference, which, not coincidentally, is also
roughly the income difference between the two countries.
In some cases, the rule of law may be just one of a multitude of variables being consid-
ered. One example is the World Bank’s Worldwide Governance Indicators Project,63 which
now covers over 200 economies. The project involves compiling a large number of subjec-
tive measures of institutional quality obtained from either a poll of in-country experts or
surveys of residents and grouping them into six clusters: (a) voice and accountability; (b)
political stability; (c) government effectiveness; (d) regulatory quality; (e) rule of law; and
(f) control over corruption. The authors of these governance studies have created indices
that measure institutional quality along each of these six dimensions. They also created
a composite governance index designed to measure the overall quality of governance
in a society. They then regress three measures of development; per capita GDP; infant
mortality; and adult literacy on these indices and find strong correlations (and indeed
strong causal relationships) between each of these indices of institutional quality and their
58
Paul H. Rubin, ‘Why was the Common Law Efficient?’ in Francesco Parisi and Charles K.
Rowley (eds), The Origins of Law and Economics: Essays by the Founding Fathers (Edward Elgar
Publishing 2007).
59
Ibid.
60
Ibid., 383.
61
Ibid.
62
Dani Rodrik, Arvind Subramanian and Francesco Trebbi, ‘Institutions Rule: The Primacy
of Institutions over Geography and Integration in Economic Development’ (2004) 9 Journal of
Economic Growth 131.
63
The World Bank, ‘Worldwide Governance Indicators’ (WGI 2016, 2016) <http://info.world-
bank.org/governance/wgi/index.aspx#home> accessed 1 November 2016.
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measures of development. A number of their findings are quite dramatic. For example,
an improvement in the rule of law by one standard deviation from the prevailing levels in
the Ukraine to those middling levels prevailing in South Africa would lead to a four-fold
increase in per capita income in the long run.
While widely cited, these empirical findings have not gone unchallenged. One major
methodological challenge relates to the problem of causation. Correlation does not neces-
sarily imply causation: showing that all or most rich countries have good institutions does
not prove that they are rich because they have good institutions. Indeed, it is possible to
argue that increased wealth causes the development of strong institutions and the rule of
law, rather than the reverse. In this vein, Glaeser, La Porta, Silanes and Schleiffer argue,64
based on cross-country econometric evidence, that (a) human capital is a more basic
source of growth than institutions, and (b) growth causes good institutions because poor
countries escape from poverty through good policies, often pursued by dictators, and
these countries only subsequently improve their political and related institutions. To cite
specific examples, economic take-off in countries such as South Korea, Taiwan and (more
arguably) Singapore, was initiated by relatively authoritarian governments that over time,
as levels of economic prosperity increased, evolved into softer forms of authoritarianism
and at least in some cases became fully-fledged democracies with a reasonably robust
commitment to the rule of law.65
(b) Rule of Law and Micro-efficiency
There are also scholars who explore how the rule of law can generate micro-efficiency,
under the assumption that a significant volume of efficient transactions will collectively
translate into macro-efficiency. An example is the so-called ‘Legal Origins’ literature.
Beginning with a widely cited paper by LaPorta, Lopez-de-Silanes, Shleifer and Vishny,
in 1997, and followed by later papers by the same authors (frequently referred to as
LLSV), this literature asserts a causal linkage between the type of legal system, financial
development and, indirectly, economic growth.66 This claim is largely based on cross-
country studies that purport to show that common law jurisdictions have, in general,
developed more sophisticated financial institutions and financial markets than civil law
jurisdictions. They conclude that countries with more sophisticated financial markets
generally recognise more extensive rights of shareholders and creditors, and that common
law jurisdictions are superior in these respects to civil law jurisdictions. Amongst civil law
jurisdictions, the French civil law system has lagged behind other civil law systems such
as the Germanic and Scandinavian systems.
LLSV rely on two inter-related mechanisms through which legal origin influences
finance, and which are directly related to substantive conceptions of the rule of law. First,
64
Edward L Glaeser and others, ‘Do Institutions Cause Growth?’ (2004) 9 Journal of Economic
Growth 271.
65
See also Ronald Gilson and Curtis Milhaupt, ‘Economically Benevolent Dictators: Lessons
for Developing Democracies’ (2011) 59 American Journal of Comparative Law 227.
66
Rafael La Porta and others, ‘Legal Determinants of External Finance’ (1997) 52 The Journal
of Finance 1131. Rafael La Porta, Florencio Lopez-de-Silanes and Andrei Shleifer, ‘The Economic
Consequences of Legal Origins’ (2008) 46 Journal of Economic Literature 285.
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the political mechanism holds that (a) legal traditions differ in terms of the priority they
attach to private property, vis-à-vis the rights of the state (or, as they put it in their most
recent paper, ‘common law stands for the strategy of social control of law that seeks to
support private market outcomes, whereas civil law seeks to replace such outcomes with
state-desired allocations’); and (b) the protection of private contracting rights forms the
basis of financial development. Secondly, the adaptability mechanism stresses that (a)
legal traditions differ in their formalism and ability to evolve with changing conditions;
and (b) legal traditions that adapt efficiently to minimise the gap between the contract-
ing needs of the economy and the legal system’s capabilities will more effectively foster
financial development than more rigid systems.
This ‘Legal Origins’ literature has been heavily criticised. Kenneth Dam points out
that the regulation of shareholders’ and creditors’ rights in most jurisdictions (civil and
common law) is a matter mostly of relatively recent statutes and not of the common law
or private civil law codes, so that drawing sharp differences between civil and common
law systems on this account is unwarranted.67 Recent governance studies by the World
Bank find legal origins to have a small to non-existent impact on the quality of the rule
of law or economic growth records, especially among poorer countries.68 Moreover, recent
comparative legal research shows that the performance of legal systems in former British
colonies that inherited the common law from their imperial overseers varies markedly
from one another on various measures of legality, including contemporary measures of
the rule of law.69
For the purpose of this analysis, it is relevant to mention that some L&E scholars have
argued that ‘Legal Origins’ literature is produced by economists who fail to address the
historical, definitional, and practical problems of attempting to compare legal systems over
time based upon their current incarnations.70 Garoupa and Pargendler even question the
term ‘Legal Origins’ indicating that comparative law scholars prefer the term ‘legal fami-
lies’, which better acknowledges the fact that these typologies are historically grounded and
thus likely to change over time.71 This suggests that L&E scholarship would have provided
a very different analysis if it had tried to explore the question posed by the Legal Origins
literature, and perhaps would have been able to avoid the pitfalls exhibited by LLSV.
67
Dam (n 39) 26–55.
68
See Daniel Kaufmann, ‘Governance Redux: the Empirical Challenge’ in Xavier Sala-i-
Martin (ed), The Global Competitiveness Report 2003–2004 (OUP 2004).
69
Ronald Daniels, Michael Trebilcock and Lindsey Carson, ‘The Legacy of Empire: The
Common Law Inheritance and Commitments to Legality in Former British Colonies’ (2011) 59
American Journal of Comparative Law 111.
70
Nuno Garoupa and Mariana Pargendler, ‘A Law and Economics Perspective on Legal
Families’ (2014) 7 European Journal of Legal Studies 39. See also Mariana Pargendler, ‘The Rise
and Decline of Legal Families’ (2012) 60 American Journal of Comparative Law 1043.
71
Garoupa and Pargendler argue that ‘the use of legal families by economists relies on the
assumption that such groupings have deep historical (and exogenous) roots. It is revealing that what
comparative lawyers call ‘legal families’ economists have come to term ‘legal origins,’ an expres-
sion that highlights the purported historicity of these categories that is key to their proponents’
purposes. Not only did the relevant classifications undergo significant change over time, but the
comparativists who designed them explicitly recognized that their taxonomies were temporally
grounded.’ Garoupa and Pargendler, ibid., 45.
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The work of Peruvian economist, Hernando de Soto, is another example of research

focusing on micro-efficiencies that can collectively generate macro-efficiency. In a widely
cited book, The Other Path,72 he documents the delays, costs, bureaucratic complexities,
and corruption entailed in registering title to land or obtaining approvals to open a
small business in Peru. While not specifically referring to the rule of law, De Soto’s work
seems inspired by a procedural conception of the rule of law: in this case, an efficient and
rational bureaucracy a la Weber. Along the same lines, the World Bank’s ‘Doing Business
Reports’ aims to investigate ‘the scope and manner of regulations that enhance business
activity and those that constrain it’.73 The reports include detailed information about
business law conditions in 175 countries, ranking countries on how easy it is to start and
close a formal business, hire and fire workers, and enforce a contract. They also examine
the ability of local business to access credit. Despite being highly influential, these reports
have been criticised by at least one L&E scholar for misrepresenting and over-simplifying
information by empirically quantifying legal issues that are inherently complex and
difficult to measure.74
De Soto’s work on formalisation of property rights also embraces the idea that micro-
efficiencies can collectively amount to macro-efficiency. In his widely cited book The
Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, De
Soto argues that strong protection for private property rights is the key factor in explain-
ing the economic success of the developed world.75 Indeed, in de Soto’s account, ‘the
total value of the real estate held but not legally owned by the poor of the Third World
and former communist nations is at least $9.3 trillion’, which he characterises as ‘dead
capital’.76
Again, legal scholars have criticised this analysis as overly simplistic, suggesting that
it fails to capture the institutional complexities embedded in an effective property rights
regime.77 In an article co-authored with Paul-Erik Veel, Michael Trebilcock expresses
some reservations regarding De Soto’s claim, arguing that such broad assertions leave
a great deal of indeterminacy regarding the actual policies to strengthen the protection
of property rights.78 While there may be some benefits in the formalisation of property
rights regimes, such regimes may also entail various costs, such as those related to set-
ting up a land registration or recording system, including initial surveys, and the cost
of updating the system. There may also be costs associated with undermining effective
informal institutions by creating dysfunctional conflicts between the formal and informal
regimes.79 Considering such costs, Trebilcock and Veel argue that the creation of a
72
Hernando de Soto, The Other Path (HarperCollins 1989).
73
The World Bank, Doing Business in 2004: Understanding Regulation (World Bank 2004) viii.
74
Kevin E Davis and Michael B Kruse, ‘Taking the Measure of Law: The Case of the Doing
Business Project’ (2007) 32 Law & Social Inquiry 1095.
75
de Soto (n 32).
76
Ibid., 35.
77
See David Kennedy, ‘Some Caution about Property Rights as a Recipe for Economic
Development’ (2011) 1 Accounting, Economics, and Law 1, 42–8.
78
Michael Trebilcock and Paul-Erik Veel, ‘Property Rights and Development: The Contingent
Case for Formalization’ (2008) 30 University of Pennsylvania Journal of International Law 397.
79
See Daniel Fitzpatrick, ‘Evolution and Chaos in Property Rights Systems: The Third World
Tragedy of Contested Access’ (2006) 15 Yale Law Journal 996.
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formal property rights regime will be advisable only when the benefits of such a regime
clearly outweigh the costs. Given, however, that formal property regimes are ubiquitous
in the developed world, there are reasons to believe that, at a certain stage in a country’s
economic development, a formal property rights regime is necessary to secure further
economic development. China, for example, has experienced rapid, market-driven
economic growth over the past three decades without a well-defined or enforced
formal property rights regime,80 but has recently been devoting increasing attention to
formalising property rights.81
(c) Concepts of Efficiency and the Disciplinary Boundaries of L&E Scholarship
As discussed, there are at least two ways in which one may measure efficient outcomes in
consequentialist thinking: micro and macro-efficiency. As Rubin indicates, the traditional
L&E scholarship has been primarily concerned with the micro-efficiency of specific legal
doctrines.82 In contrast, many consequentialist rule of law studies conducted by econo-
mists venture outside the comfort zone of L&E scholarship to explore macro-efficiency.
It is not clear, however, if this scholarship could also be considered part of the L&E
tradition. The criticisms of L&E scholars regarding the lack of depth and attention to
legal complexities in these analyses seems to hint at the fact that these are fundamentally
economic studies (even if law is the object of analysis). Reading between the lines, these
critics seems to suggest that L&E scholarship is conceptually and intellectually different
from the quantitative and qualitative analyses that economists develop about law. One
could, of course, define L&E broadly enough to encompass these studies, but such a
broad definition does not seem to be often or uniformly embraced by those who describe
themselves as L&E scholars.
RULE OF LAW AND THE RATIONAL ACTOR MODEL
Law and Economics scholarship is premised on the assumption that rational actors are
seeking to maximise their welfare through careful cost-benefit analysis of the different
courses of action.83 Legal rules and norms may influence this decision-making process
by creating incentives (increasing costs or providing rewards) for particular courses of
action. On the one hand, the rational actor model has proven quite helpful in predicting
the behaviour of certain actors, such as firms, making the law and economics analysis
particularly useful in areas such as antitrust and corporate law.84 On the other hand, the
model has been less successful in its attempt to explain and predict individual behaviour
in other areas of the law. For instance, the socio-economic determinants of crimes are
80
See Frank Upham, ‘From Demsetz to Deng: Speculations on the Implications of Chinese
Growth for Law and Development Theory’ (2009) 41 NYU Journal of International Law and
Politics 551.
81
Trebilcock and Veel (n 78) 397.
82
Rubin (n 58).
83
Cooter and Ulen (n 2) 12–14.
84
Ibid., 1–10.
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often presented as evidence against the idea that criminals are simply performing a cost-
benefit analysis before breaking the law. The debate about the applicability of the law and
economics framework to criminal law is fierce, and there seems to be evidence supporting
both sides.85 In sum, based on the rational actor model, the traditional L&E scholarship
tries to predict, with varying degrees of success, whether specific legal doctrines generate
a rational response on individuals and organisations.
The exercise of applying the rational actor model to discussions about the rule of law is
significantly more complex, given that the boundaries of the phenomenon being analysed
are significantly fuzzier. Because it cannot be subsumed to one particular behaviour in
response to one particular legal doctrine, the relationship between the rational actor and
the rule of law raises a complex set of questions: do rational actors depend on formal legal
constraints like the rule of law to achieve social order and promote efficient allocation
of resources? Or could these very same actors achieve these goals through informal rules
and norms (i.e. without the rule of law)? Once the rule of law is in place, is rationality
the primary mechanism that explains its sustainability? Or are there other mechanisms at
play, such as culture?
(a) Social Norms
While law may be a mechanism to create incentives that influence the behaviour of
rational actors, it is not the only one. The law and social norms literature argues that
efficient arrangements could emerge outside of a formal legal framework. While not
abandoning the rational actor model, this literature calls attention to the fact that incen-
tives that will influence human behaviour may be generated by a wide array of societal
forces, such as religious beliefs, informal codes of conduct, social habits and attitudes, or
the existing value systems that prevails in a particular society.
One of the most cited studies in this intellectual tradition is Robert Ellickson’s book
Order Without Law: How Neighbours Settle Disputes, which examines how various
informal rules can emerge and, in certain circumstances, make the formal legal system
irrelevant.86 The book builds on a previous analysis of the whaling industry, where
Ellickson argued that ‘when people are situated in a close-knit group, they will tend to
develop for the ordinary run of problems norms that are wealth maximising’.87 Along
with Ellickson, other influential American legal scholars have suggested that lawmakers
should defer to these informal norms, as they are more likely to be welfare maximising
than centrally crafted rules.88
Along similar lines, the Nobel Laureate in Economics, Elinor Ostrom, has shown
85
For a useful overview of the literature, see Cooter and Ulen (n 2).
86
Robert C Ellickson, Order Without Law: How Neighbors Settle Disputes (Harvard University
Press, 1991).
87
Robert C Ellickson, ‘A hypothesis of wealth- maximizing norms: evidence from the whaling
industry’ (1989) 5 JL Econ & Org 83
88
Ibid., 167–83. Richard Epstein, ‘International News Service v. Associated Press: Custom and
Law as Sources of Property Rights in News’ (1992) 78 Virginia Law Review 85, 126: ‘custom should
be followed in those cases in which there are repeat and reciprocal interactions between the same
parties, for then their incentives to reach the correct rule are exceedingly powerful’.
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how these informal norms can create sophisticated governance structures that incen-
tivise collaborative use of shared resources.89 Indeed, traditional L&E scholars have
articulated the idea that respect for land tenure was a prisoner’s dilemma: all parties
gain when tenure is respected (because of the lower costs associated with defending
one’s land, and so on), but each party has an incentive not to respect other parties’
tenure, resulting in what became known as the ‘tragedy of the commons’.90 While the
pessimistic predictions of the prisoner’s dilemma have been used in the past to argue
for a strong state to enforce order, Ostrom’s work show that cooperation can emerge
through informal norms, and therefore the ‘tragedy of the commons’ can be avoided
without the state’s intervention.91
The social norms literature, and Ostrom’s work in particular, imply that customary
arrangements can be sufficient to generate order between parties, although this process
may take time. Eric Posner argues that a cooperative and welfare enhancing social norm
can arise through the rational actions of a large number of individuals through a signal-
ling process: those who are able to signal their willingness to cooperate gain benefits from
interactions with other individuals.92 Building directly on the work of Elickson, Robert
Cooter also argues that a strategic signalling game often generates social norms. The
policy implication of this model, according to Cooter, is that institutions promoting the
rule of law reforms for development, such as the World Bank, should not be trying to
establish new codes and regulations (‘rule of state law’) but should instead be trying to
promote rules that will be obeyed out of respect, because they are consistent with social
norms that embody citizen’s sense of justice (‘rule-of-law state’).93
(b) Culture
While part of the literature on social norms does not challenge the rational actor
model directly, some of it shows that over time these norms may become internalised
such that individuals might adhere to a norm even in situations where doing so might
not be economically or strategically rational.94 ‘Culture matters’ is one of the ways
in which these reservations regarding the rational actor model are often formulated,
although the term ‘culture’ does not have a singular or universal meaning in the
academic literature. Nevertheless, some important empirical studies have analysed
different aspects of what is labelled culture and found troubling evidence challenging
the idea that individuals are rational actors responding to incentives set up by formal
89
Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action
(CUP 1990).
90
See Hardin (n 36).
91
Ostrom (n 89). See also Elinor Ostrom, ‘A Behavioral Approach to the Rational Choice
Theory of Collective Action: Presidential Address, American Political Science Association, 1997’
(1998) 92 The American Political Science Review 1.
92
Eric A Posner, ‘Symbols, Signals, and Social Norms in Politics and the Law’ (1998) 27 Journal
of Legal Studies 765; Eric A Posner, Law and Social Norms (Harvard University Press 2000) 18–27.
93
Robert Cooter, ‘The Rule of State Law and the Rule-of-Law State: Economic Analysis of
the Legal Foundations of Development’ (1996) Annual World Bank Conference on Development
Economics 191–216.
94
Posner (2000) (n 92) 18–27.
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rules and norms. An example is a study of United Nations diplomats’ willingness (or
not) to comply with parking regulations and pay for parking tickets, even when they
are immune to the fines.95 This suggests that culture influences human behaviour, but
it is not clear how, when, and why it does so, leading it to be often treated as a black
box in economic analyses.96
A growing body of literature focuses on the idea that there is a complex and non-linear
relationship between formal and informal rules and norms, making it hard to predict how
changes in formal rules and norms will translate into changes in societal behaviour.97
For example, a quantitative analysis conducted by Pistor, Haldar and Amirapu finds no
correlation between the rule of law and gender equality in low-income countries. Turning
to qualitative data, the authors found some evidence that ‘the status of women in society
is determined primarily by social norms about gender equality and that these norms are
only weakly affected by legal institutions’.98 The authors conclude that having ‘neutral’
institutions or laws in place does not necessarily result in changed social norms necessary
for improvement in gender equity.99 This makes a great deal of the descriptive and predic-
tive exercise proposed by the rational actor model significantly more challenging than
some of its proponents acknowledge.
Part of the problem, as suggested by the study of Licht, Goldschmidt and Schwartz,100
is that the rule of law itself can be seen as a result of cultural elements of a society that
influence behaviour. In an empirical study, the authors show that formal governance
structures, such as the rule of law and democratic accountability depend on certain
underlying cultural values, such as individualism and lack of hierarchical relations.101
Some authors have taken the claim even further: while the rule of law is traditionally seen
as a ‘legal’ concept that provides rules for how a functioning legal system should operate, a
number of scholars have argued that the rule of law itself is a cultural artefact. This claim
seems to build on Weber’s theory, according to which political, cultural and economic
factors can all interact to determine whether any given society develops a formal rational
legal system.102 Indeed, law plays a limited role in Weber’s theory; in fact, his most famous
95
Raymond Fisman and Edward Miguel, ‘Corruption, Norms and Legal Enforcement:
Evidence from Diplomatic Parking Tickets’ (2007) 115 Journal of Political Economy 1020. See also,
Raymond Fisman and Edward Miguel, Economic Gangsters: Corruption, Violence, and the Poverty
of Nations (Princeton University Press, 2008).
96
Daron Acemoğlu and Simon H. Johnson, ‘Unbundling Institutions’ (2005) 113 Journal of
Political Economy 5.
97
For a comprehensive review of the economics literature on the topic, see Alberto Alesina
and Paola Giuliano, ‘Culture and Institutions’ (2015) Institute for the Study and Labor (IZA)
Discussion Paper 9246/2015, <http://ftp.iza.org/dp9246.pdf> accessed 1 November 2016.
98
Katharina Pistor, Antara Haldar, and Amrit Amirapu, ‘Social Norms, Rule of Law, and
Gender Reality: an Essay on the Limits of the Dominant Rule-of-Law Paradigm’ in James J
Heckman, Robert L Nelson and Lee Cabatingan (eds), Global Perspectives on the Rule of law
(Routledge 2010).
99
Ibid., 25.
100
Amir Licht, Chana Goldschmidt and Shalom Schwartz, ‘Culture Rules: The Foundations
of the Rule of Law and Other Norms of Governance’ (2007) 35 Journal of Comparative Economics
659.
101
Ibid.
102
Weber (n 22).
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contribution to social thought is the claim that adherence to a set of religion-derived

values, the Protestant Ethic, was a critical factor in the initial rise of capitalism, whose
development in turn is associated with a formal rational legal system.
Outside the realm of L&E scholarship, cultural norms that promote the rule of law
have been referred to as the ‘practice of legality’103 and as ‘legal culture’.104 Even Dicey
recognised the importance of culture to the rule of law when he observed that Continental
visitors to England such as Voltaire and Tocqueville showed ‘admiration or astonishment
at the legality of English habits’.105 The rule of law, in this sense, is a collection of social
norms concerning how society is to be organised and governed rather than formalised
rules.106 As Rosa Ehrenreich Brooks put it ‘the rule of law is a culture’.107 This claim
not only largely rejects the rational actor model, but it also makes it more challenging
to think of strategies for actively promoting the rule of law. Indeed, economic theorists
who assume a strong and direct correlation between the existence of the rule of law and
existing cultural norms argue that it is hard (if not impossible) to make behavioural
predictions based solely on analyses of the formal institutional processes or of the reform
of legal institutions.108 This could explain the lack of positive outcomes in nation-building
interventions in developing nations that attempt to promote formal compliance with the
rule of law.109
The cultural conception of the rule of law also suggests that promoting rule of law
reforms abroad may be considered a form of modern imperialism.110 To overcome
the failure of formal rule of law approaches, and despite the dangers of perceived or
actual imperialism or colonialism, a number of scholars have promoted the study and
practice of changing social norms in developing states towards a ‘rule of law culture’ to
aid international development goals.111 The tacit suggestion in this literature, as noted
sceptically by Amy Cohen, is that culture can be law-like in its ability to predictably
103
Jutta Brunnée and Stephen J Toope, Legitimacy and Legality in International Law: An
Interactional Account (CUP 2013) 27.
104
David Nelken, ‘Using the Concept of Legal Culture’ (2004) 29 Austl J Leg Phil 1; Francisco
Javier Fonseca, ‘Deficiencies of the Rule of law and the Legal Culture, and Its relationship to
Underdevelopment’ (2015) 6 Asian Journal of Law and Economics 231.
105
Dicey (n 8) 180.
106
For more discussion of this issue, see Rosa Ehrenreich Brooks, ‘The New Imperialism:
Violence, Norms, and the ‘Rule of law’’ (2003) 101 Mich L Rev 2275; see also Augusto
Zimmermann, ‘The Rule of Law as Culture of Legality: Legal and Extra-legal Elements for the
Realisation of the Rule of law in Society’ (2007) 14 eLaw J 10; Fonseca (n 104).
107
Ehrenreich Brooks (n 106) 2285.
108
Brain Z Tamanaha, ‘The Primacy of Society and the Failures of Law and Development’
(2011) 44 Cornell Intl LJ 209, 212.
109
See e.g. ibid; Cooter (n 93); Ehrenreich Brooks (n 106); Augustine SJ Park, ‘Peacebuilding,
the Rule of Law and the Problem of Culture: Assimilation, Multiculturalism, Deployment’ (2010)
4 Journal of Intervention and Statebuilding 413.
110
Ehrenreich Brooks (n 106).
111
See e.g. ibid; Lan Cao, ‘Culture Change’ (2007) 47 Va J Intl L 357; John C Reitz, ‘Export
of the Rule of law’ (2003) 13 Transnational Law and Contemporary Problems 429. For an overview
of the literature on the promotion of a ‘rule of law culture’ as part of law and development and a
skeptical analysis of it, see Amy J Cohen, ‘Thinking with Culture in Law and Development’ (2009)
57 Buff L Rev 511, 527–39.
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determine behaviour.112 A potential implication of this suggestion, if true, is that culture

and cultural change may not actually be a ‘black box,’ but instead may be amenable to
economic analysis.
Of course, the question of how one might develop a rule of law culture is a tricky one.
In a recent book, Gillian Hadfield warns that viewing local legal ‘culture’ as unchangeable
is just as wrong as thinking it can be changed by stern lectures or top-down institutional
changes.113 Instead, she argues that Western rule of law culture is not innate, but devel-
oped over a long history of individual participation in local legal institutions, especially
those formed around issues of trade. The way, therefore, to build stable legal institutions
and a rule of law culture in developing countries is from the ground up: specifically, by
helping construct smaller-scale legal institutions in which individual beneficiaries are
involved, or create competitive markets for innovative legal solutions which can be chosen
by those who need them from amongst a variety of available options.
(c) Beliefs, Ideas, and Cognitive Biases
A growing body of literature calls attention to the importance of beliefs and ideas in
changing institutions and behaviour. The underlying premise of these analyses is that
institutions are likely to materialise and operate in a way that reflects a society’s mental
framework.114 Therefore, particular institutional arrangements such as the rule of law
would come into existence when their underlying values become widely accepted and are
subscribed to by members of a community. For instance, McCloskey argues that enforce-
ment of contracts and protection of property rights came about as a result of a historical
shift in mentality that happened at a particular point in time. The rise of a bourgeois class
whose income was derived from trade expanded the range of acceptable ways of making a
fortune, and this created a demand for the consolidation of legal mechanisms that could
allow for such practices to be sustainable.115 Along similar lines, Alston et al. argue that
Brazil’s impressive economic performance in the first three quarters of the twentieth
century is associated with important institutional transformation that promoted inclusion
and the rule of law. These transformations were caused by a myriad of factors among
which was a radical shift in the long-held beliefs among Brazilian citizens.116
Charles Kenny formulates perhaps the most ambitious version of this argument based
on the observation that there has been significant improvement in human well-being
around the world since World War II.117 Despite growing divergences on measures of
material well-being, such as inequalities in income per capita, Kenny stresses that through
112
Cohen, ibid., 540–41.
113
Gillian Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent it
for a Complex Global Economy (OUP 2016).
114
Douglass C. North, Understanding the Process of Economic Change (Princeton University
Press: 2005).
115
Deirdre McCloskey, Bourgeouis Equality: How Ideas, Not Capital or Institutions, Enriched
the World (Chicago University Press, 2016)
116
Lee J. Alston, Marcus André Melo, Bernardo Mueller and Carlos Pereira, Brazil in
Transition: Beliefs, Leadership, and Institutional Change (Princeton University Press: 2016).
117
Charles Kenny, Getting Better: Why Global Development is Succeeding and How We can
Improve the World Even More (New York: Basic Books, 2011). For a similar argument, see Angus
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the dissemination of technologies and ideas, a substantial convergence has occurred

between many developed and developing countries on various social indicators, such
as life expectancy, infant and maternal mortality rates, literacy rates, school attendance
rates, and gender equality. While a central part of Kenny’s book is focused on arguing that
foreign aid has played only a marginal role in effecting these changes, he does indicate that
institutions have played a role in helping increase well-being (e.g. protection of civil rights
that promote gender equality). According to him, these rule of law institutions seem to be
on the rise due to the dissemination of ideas about good governance around the world.
While this literature about the importance of beliefs and ideas does not subscribe to the
assumption that one single model (e.g. the rational actor model), can accurately describe
human behaviour throughout history and around the world, it does seem to suggest
that the process is not completely irrational. Indeed, there is some logic in the evolution
of ideas and mental frameworks across times and places, which happen either as an
adaptation to new circumstances, or as a result of exposure to superior options.
A more direct challenge to the rational actor model comes from the behavioural eco-
nomics literature, a branch of economic analysis that relies on experiments to assess how
people respond to incentives. Many of the findings of these studies contradict standard
economic predictions, showing instead that human behaviour is guided by numerous
predictable cognitive biases.118 For instance, the assumption that market prices are
determined by individual preferences and the laws of supply and demand is debunked by
experiments showing that people often ascribe more value to the same object when they
own it (the endowment effect),119 and that when asked to determine the price of an object,
people are influenced by any number that may be available to them immediately before
the decision, even if that number isn’t related to the value of the object (the anchoring
effect).120
These behavioural experiments have not only shown that people’s decisions are often
influenced by cognitive biases, but these experiments also show that these biases can vary
across countries. Most behavioural economics experiments are conducted in Western,
Educated, Industrialised, Rich, and Democratic (WEIRD) societies. When the same
experiments are repeated in non-WEIRD countries, the results are very different.121
Interestingly, in most societies cooperation breaks down if there is no mechanism for
punishing those who do not cooperate, but once punishment mechanisms become avail-
able, societies differ significantly in their use. While most societies punish free-riders,
some societies also engage intensively in antisocial punishment, such as by paying to
reduce the earnings of ‘overly’ cooperative individuals (i.e. those who contributed to
the public good more than the punisher did). The conclusion is that the availability of
Deaton, The Great Escape: Health, Wealth, and the Origins of Inequality (Princeton University
Press, 2013).
118
Daniel Kahneman, Thinking, Fast and Slow (Farrar, Straus and Giroux, 2011).
119
Daniel Kahneman, Jack L. Knetsch, Thaler, Richard H. ‘Experimental Tests of the
Endowment Effect and the Coase Theorem’ (1990) 98 (6) Journal of Political Economy 1325–48.
120
Dan Ariely, George Loewenstein and Drazen Prelec., ‘Tom Sawyer and the Construction of
Value’ (2006) 60 Journal of Economic Behavior and Organization 1–10.
121
Joseph Henrich, Steven J. Heine and Ara Norenzayan, ‘The Weirdest People in the World?’
(2010) Behavioral and Brain Sciences 1–75.
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punishment is more likely to guarantee cooperation in some societies than in others.122

Another study shows that levels of antisocial punishment are negatively correlated with
rule of law indexes: societies with low levels of antisocial punishment score better in rule
of law indexes, suggesting that formal and informal rules and norms may complement
and reinforce each other.123
Particular economic systems may also contribute to a mental framework conducive
to the rule of law. Based on the work of Akerlof and Shiller,124 Christopher May has
suggested that the rule of law can actually be viewed as a set of norms that are directly
responsive to human psychology in capitalist markets; that is, the rule of law is ‘an
institutional manifestation of the human psychological drivers that lie behind economic
development’.125 In this way, the rule of law both supports the human psychological
drive for trade and buttresses markets against the potential negative consequences of
our animal psychology. If this is true, then it would accord with Hadfield’s suggestion,
discussed above, that the rule of law is the result of individual participation in legal
institutions primarily formed around trade, rather than a necessary precondition for the
rise of market economies.126
CONCLUSION
This chapter mapped how a L&E approach to the rule of law may adopt a similar
theoretical framework to that adopted in L&E literature, i.e. consequentialism, welfare-
enhancing norms, concerns with efficient outcomes, and the rational actor model, but it
also deviates significantly from what is traditionally considered L&E scholarship. First, as
a primary object of study the concept of the rule of law is significantly more amorphous
and involves more elements than most legal doctrines. Second, by looking at the rule of
law from a consequentialist perspective, scholars are necessarily drawn into an exploration
of a set of outcomes that is often more complex than the efficient allocation of resources
following from the direct application of particular legal rules. Third, there may be ways
to establish a direct causal connection between particular legal doctrines and their impact
on individual behaviour, but the exercise becomes more complicated when it involves
an analysis of the rule of law more generally, starting with the fact that it is not clear if
behaviour is changing the rule of law or the other way around.
As a result, economic analysis of the rule of law may not fit the criteria of what
most scholars would consider to be L&E scholarship. It may become, instead, an
economic view of how law impacts economic growth (i.e. development studies), or it
may be better labelled as an economic view on how institutions might impact individual
behaviour, which collectively may influence development outcomes (i.e. new institutional
122
Ibid.
123
Benedikt Herrmann, Christian Thoni, Simon Gachter, ‘Antisocial Punishment Across
Societies’ (2008) 319(5868) Science, 1362–7.
124
George A Akerlof and Robert J Shiller, Animal Spirits: How Human Psychology Drives the
Economy, and Why it Matters for Global Capitalism (Princeton University Press 2010).
125
May (n 5) 122–33.
126
Hadfield (n 113).
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economics).127 As Drobak and North suggest, the difference here may be in the emphasis:
while traditional L&E is trying to explain legal problems with economic principles, new
institutional economics incorporates legal processes in the explanation of economic
events.128 While the disciplinary boundaries between L&E analysis of the rule of law,
development economics and new institutional economics may be hard to define, these
studies seem to be guided primarily (albeit sometimes indirectly) by a concern with
development, as illustrated by the scholarship explored in this chapter.
127
For a more detailed discussion see Chapter 13 in this volume.
128
John N. Drobak and Douglass C. North, ‘Legal Change in Economic Analysis’ in Jurgen
Backhaus (ed), The Elgar Companion to Law and Economics (Edward Elgar Publishing 1999)
53–60.
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24. The rule of law, institutions, and economic
development
Lydia Brashear Tiede
INTRODUCTION
Many think the rule of law rectifies a host of societal problems. In fact, there are few if
any studies which claim that the rule of law has negative consequences or null effects. Of
particular focus to scholars and policy-makers is the rule of law’s impact on economic
development. The majority of those working in this area assert that the rule of law
provides assurances that assets from foreign investment and trade will be protected by
a system of laws and legal processes. These in turn encourage further domestic and
international investment.
While much has been written on this subject, there are significant variations in studies
regarding how economic development and the rule of law are defined. These variations
call into question whether the findings regarding various aspects of the rule of law are
as robust as they first appear. Further, the extant literature seldom addresses issues of
reverse causality. In other words, little scholarly attention has focused on whether high
levels of economic development or growth create the conditions for the rule of law to
flourish or whether the two are mutually reinforcing. While most scholars assume that
the rule of law will result in more economic activity, some have begun to question the
straightforwardness of this relationship.1
The connection between the rule of law and economic growth has its foundation in
institutional economics which emphasises that choices made about the configuration
of institutions impact economic growth and development.2 As a result, many scholars
focus on how well government institutions operate to ensure that such things as strong
executives or corruption do not compromise them. However, while formal institutions
are indeed important much also depends on informal institutions and how practices
on the ground help or hinder the protections afforded in the written law. This chapter
1
See John Hewko. 2002. ‘Foreign Direct Investment: Does the Rule of Law Matter?’ The
Carnegie Endowment for International Peace, Rule of Law Series, Woring Papers #26. Washington,
DC, The Carnegie Endowment; Amanda Perry. 2000. ‘Effective Legal Systems and Foreign Direct
Investment: In Search of the Evidence’, 49 (October) The International and Comparative Law
Quarterly 779–99.
2
Douglass North. 1991. ‘Institutions’, 5(1) The Journal of Economic Perspectives 97–112. In
this regard, North integrated the study of institutions into economics. For North institutions are
defined as ‘the humanly devised constraints that structure political, economic, and social interac-
tion’ consisting of ‘both informal constraints (sanctions, taboos, customs, traditions, and codes
of conduct), and formal rules (constitutions, laws, property. rights)’. North argues that societies
create institutions ‘to create order and reduce uncertainty’. Institutions coupled with economic
constraints in turn determine how costly it is to enter into certain kinds of economic activity (p.97).
405
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provides an overview of the literature on the relationship between the rule of law and
economic development and the intrinsic difficulties related to ascertaining this particular
relationship. The chapter ends with a look to considerations for future research.
CHALLENGES TO THE RESEARCH AGENDA
Studying the relationship between the rule of law and economic development is challeng-
ing on a number of fronts, including defining key concepts, data availability, measure-
ments, and determining causality. These challenges are reviewed below to the extent that
they impact research related to economic development and the rule of law.
Definitions
One of the largest challenges to the research agenda is the ability to define both the
rule of law and economic development, the two main variables of interest in this line of
research, whether conceived as causal or outcome variables. Although used prolifically,
scholars and policy practitioners have very different conceptions of the rule of law. For
instance, Belton3 suggests that rule of law definitions fall into two main categories. One
category of definitions emphasises institutional attributes that are thought to ‘actuate’
or create the rule of law in a society; such things as comprehensive laws, trained law
enforcement, and well-functioning courts to name a few. Scholars espousing these defini-
tions assume that if certain institutions (including courts, rules governing judges and the
judiciary, as well as substantive law) are in place, then the rule of law necessarily follows.
A second category of definitions, according to Belton, emphasises the ends that the rule
of law is intended to serve within society; ends based definitions equate the existence of
such things as rules governing subjects, law and order, and human rights with the rule
of law itself.
The problem with Belton’s approach is that often the two categories (actuation and
ends based definitions) overlap and those things that she claims are ‘ends’ of the rule of
law could arguably be used to create the rule of law. An additional challenge is that the
rule of law is often discussed in terms of reform efforts related to legal institutions after
transitions to democracies resulting perhaps in a false assumption that only democracies
have the rule of law. However, certain aspects of the rule of law indeed exist in autocratic
countries, such as having clear written rules and low levels of crime. Furthermore, many
aspects of the rule of law related to equal treatment of individuals and due process
may not appear across the board in well-established democracies, as exemplified by
quasi-judicial processes often found in the area of administrative law.
Narrow definitions of the rule of law limit general understandings of its impact. For
instance, if the rule of law is limited to protection of property rights and contract enforce-
ment, by far the most studied aspects of the rule of law, then the results from any empirical
study are obviously limited to those definitions used. If, on the other hand, the definition
3
Rachel Belton. 2005. ‘Competing Definitions of the Rule of Law: Implications for
Practitioners’. Carnegie Rule of Law Series 55, Washington, DC: The Carnegie Endowment.
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The rule of law, institutions, and economic development 407
is too abstract or general, such as one put forth and often cited by Fuller, focusing on the
form of rules,4 then it is difficult to determine when the rule of law is present or to find
adequate measures for such a concept.
It may be more useful instead to conceive of the rule of law as a multifaceted concept
with distinct factors that make up the rule of law complex.5 Accordingly, the rule of law
includes the following aspects:
1. security of property and contract rights;

2. security of person;
3. level of corruption;
4. strength of legal institutions.
Using such an approach recognises that the rule of law is not just one discrete concept,
but encompasses many different values and processes interacting within a country.
Furthermore, this multifaceted approach allows scholars to disaggregate discrete con-
cepts of the rule of law to interpret a particular country’s strengths and weaknesses as
well as allowing for a more nuanced study of the relationship between the rule of law and
economic development.
Unlike the rule of law, there seems to be more consensus in the literature regarding
the definition of economic development. Most studies refer to economic development as
either short-term or long-term economic growth, usually measured as GDP per capita
over different periods of time. Another less used, but equally viable measurement refers
to economic volatility. In other words, to determine the economic health of a country,
the focus should not be purely on the amount of growth in a given year, but whether
the economy’s growth is stable over time (i.e. Haggard and Tiede 2011 use the standard
deviation of per capita GDP over a period of years as a measure of economic volatility).
Although beyond the scope of this chapter, economic development may also be measured
by other economic related phenomenon such as foreign and domestic investment and the
efficiency of particular economic sectors.
Data and Measurements
Even if an agreement is reached on how to define the rule of law, finding measurements
for more discrete concepts of the rule of law to analyse is challenging. Questions arise
regarding construct validity or whether adequate measures represent the defined concepts.
4
Lon Fuller. 1969. The Morality of Law (Revised ed, Yale University Press) states that the
rule of law may exist when laws or rules include the following attributes: generality, publicity,
prospectivity, understandability, possibility, stability and congruence between the stated rules and
their actual administration.
5
As suggested in Stephan Haggard, Andrew MacIntyre and Lydia Tiede. 2008. ‘The
Rule of Law and Economic Development’, 11 (1) Annual Review of Political Science 205–34;
Stephan Haggard and Lydia Tiede. 2011. ‘The Rule of Law and Economic Growth: Where are
We?’ 39 (5) World Development 673–85; Stephan Haggard and Lydia Tiede. 2014. ‘The Rule of
Law in Post-Conflict Settings: The Empirical Record’, 58 (2) International Studies Quarterly
405–17.
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For instance, the concept of protection of property would at first appear straightforward
to define and measure. However, there are not only a multiple of possible definitions, such
as the ability to register property,6 a legal system which protects private property, or risk of
government expropriation,7 but also a multitude of available indicators or measurements
which attempt to capture these distinct aspects of property rights protection.8
Additionally, studies which purport to define the relationship between the rule of
law and economic development tend to rely on rule of law measures which are either
derived from objective or subjective sources. Objective measurements relating to the rule
of law usually represent aspects of the rule of law that are easily quantifiable; subjective
measurements, on the other hand, are usually derived from surveys of experts or policy
stakeholders. However, scholars criticise subjective measures as inherently biased towards
elite perceptions or self-interest.9 In a critique of the World Bank’s governance indicators,
including those that measure various aspects of the rule of law, Kurtz and Shrank10 show
that results from statistical analyses vary greatly depending on whether the data employed
comes from a subjective or objective source. Although such a line of reasoning suggests
that objective measurements should be employed, this is not without its problems. For
example, the World Bank’s Doing Business data specify the time it takes to file a contract
claim in court and to enforce a judgement. However, long time periods do not neces-
sarily indicate an inefficient contract system, but may simply signal a more advanced
administrative state, which ultimately may be quite effective in contract enforcement.
Therefore, using time to enforce a contract, or number of veto players in a constitution,
may themselves be crude approximations of some aspect of the rule of law or may not
vary significantly making them inappropriate for statistical analysis. Finally, objective
measurements of legal institutions may not be able to capture how the law works in any
actual situation or jurisdiction.11
6
Hernando De Soto. 2001. The Mystery of Capital, Why Captalism Triumphs in the West and
Fails Everywhere Else (Bantam).
7
Daron Acemoglu and Simon Johnson. 2005. ‘Unbundling Institutions’, 113(5) Journal of
Political Economy 949–95.
8
Some of the most often used data in studies on economic development use measurements
of property rights that are both overly broad and narrow. For instance, the Heritage Foundation’s
indicator for property rights is broadly defined by an index which takes into account, ‘judicial
integrity, ability to enforce contracts, and chances of expropriation’. Political Risk Services
measures property rights somewhat more narrowly referring only to contract viability and ‘average
protection against risk of expropriation’. In both cases, property rights are rather narrowly defined
by only referring to risk of expropriation, with no mention of property registration or mechanisms
to resolve disputes among people or non-governmental entities. The measurements, however, are
rather broad as they also include aspects of the court system and contract rights.
9
E. Glaeser, Rafael La Porta, Florencio Lopez-de-Silances, and Andrei Shleifer. 2004. ‘Do
Institutions Cause Growth’, 9 Journal of Economic Growth 271.
10
Marcus Kurtz and Andrew Shrank. 2007. ‘Growth and Governance: A Defense’, 65 Journal
of Politics 563–9.
11
See Christiane Arndt and Charles Oman. 2006. Uses and Abuses of Government Indicators
Organization for Economic Cooperation and Development (ed.) Paris; Simon Johnson, John
McMillan and Christopher Woodruff. 2002. ‘Property Rights and Finance’, 92(5) American
Economic Review 1335; Lars P. Feld and Stefan Voigt. 2003. ‘Economic Growth and Judicial
Independence: Cross-Country Evidence using a New Set of Indicators’, 19(3) European Journal of
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A related concern is that even if a measurement is found that has construct valid-
ity, often empirical studies mapping the relationship between the rule of law and
economic development are rife with missing data. Ríos-Figueroa and Staton12 caution
that ‘missingness’ should not be ignored, but has significant substantive meaning: for
example, scholars often ignore or drop countries from their analyses if these countries
fail to have popularly available indicators for various aspects of the rule of law. In not
accounting for missing data, scholars fail to account for the fact that a dearth of data
itself may indicate that the rule of law in that country is failing and by eliminating
such a country from analysis, overall results and conclusions from a comparative study
will be biased.
Causality
Most of the literature concludes that the rule of law improves economic development.
Indeed, the literature reviewed in the next section suggests that there is a causal relation-
ship between the rule of law and economic development and that the direction of causality
only goes one way (i.e. the rule of law leads to economic growth). Critiques of the early
literature on economic development focus on scholars’ inability to acknowledge or deal
with issues of reverse causality. Due to the high correlation between GDP (gross and
per capita) and many aspects of the rule of law, it is quite possible that rich countries on
average provide the best forum for the rule of law to flourish.
Sample of Cases
The final challenge facing the rule of law and economic development agenda is
that scholars use various samples of countries and time periods. As with other
empirical analyses, any conclusions from these studies need to be confined to the
sample of countries analysed. As will be highlighted in the next section, many of
the conclusions reached from the analyses use samples of countries which include
very developed and non-developed countries, while others focus only on developing
countries.13 The problem with the former is that any purported effect of the rule of
law may be due to large disparities of economic development in the countries in the
samples analysed.
RULE OF LAW COMPLEXES AND ECONOMIC DEVELOPMENT
While there is general agreement that the rule of law positively correlates with economic
development, the studies that support this general conclusion vary considerably not only
in approach but as to which particular aspect of the rule of law positively affects economic
12
Julio Ríos-Figueroa and Jeffrey K Staton. 2014. ‘An Evaluation of Cross-National
Measures of Judicial Independence’, 30(1) Journal Of Law, Economics, And Organization
104–37.
13
Kenneth Dam. 2006. The Law-Growth Nexus: The Rule of Law and Economic Development.
(Washington, DC: Brookings Institute).
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growth. This section is organised around the different facets of the rule of law discussed
above and distinctions between their relationship to long-term and short-term economic
growth.
Security of Property and Contract Rights
As previously mentioned, the majority of scholars analysing the effect of the rule of
law on economic development focus on property rights and to a lesser extent contract
rights.14 Strong property rights (i.e. registering property, enforcement of property rights
in courts of law, limited government expropriation) and contract rights are thought to
encourage investment and trade, which in turn elevates economic development. A long
list of scholars has asserted the importance of property and contract protections or rights
on economic prosperity.15
Many of the early studies demonstrate through cross-sectional regressions that the pres-
ence of property and contract rights increases economic development. For example, Scully16
shows that open societies with strong commitments to property rights increase economic
growth and efficiency in 115 market economies from 1960 to 1980. Clague et al.17 suggest
that an objective measure of contract enforcement based on the ratio of non-currency
money to a country’s total money supply is related to investment and growth rates in a
sample of 95 countries from 1970 to 1992. Johnson, McMillan, and Woodruff18 conclude,
based on survey results from three Eastern European countries in 1997, that strong property
rights encourage those involved in business to reinvest thus spurring on growth. In a series
14
Early new institutional economics scholars who asserted the importance of property and
contract rights included (Ronald Coase. 19960. ‘The Problem of Social Cost’, 3 Journal of Law
and Economics 1-44; A. Alchian and H. Demsetz. 1973. ‘The Property Rights Paradigm’, 33
Journal of Economic History 16–27; O. Williamson. 1971. ‘The Vertical Integration of Production:
Market Failure Considerations’, 61 American Economic Review 112–23; O. Williamson. 1985.
The Economic Institutions of Capitalism: Firms, Markets, Relational Contracting (New York: Free
Press); North (n 2).
15
See Eirik Furubotn and Svetozar Pejovich. 1972. ‘Property Rights and Economic Theory:
A Survey of Recent Literature’, 10(4) Journal of Economic Literature 1137–62; Dam (n 13) (for
a review of this literature); Y. Barzel. 1997. Economic Analysis of Property Rights. New York:
Cambridge University Press); A. Alchian. 1965. ‘Some Economics of Property Rights’, 30(4)
Il Polit 816–29; Alchian and Demsetz. 1973, ibid.; Douglas North and Barry Weingast. 1989.
‘Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in
Seventeenth Century England’, 44 Journal of Economic History 803–32, 803; North (n 2); De
Soto (n 6); Johnson, McMillan and Woodruff (n 11); Acemoglu and Johnson (n 7); W. Easterly
and R. Levine. 2003. ‘Tropics, Germs, and Crops: How Endowments Influence Economic
Development’, 50(1) Journal of Monetary Economics 3–39; Daron Acemoglu, Simon Johnson,
and James Robinson. 2001. ‘The Colonial Origins of Comparative Development: An Empirical
Investigation’, 5 American Economic Review 1369–401; G. Libecap. 1989. Contracting for Property
Rights. (New York: Cambridge University Press).
16
Gerald Scully. 1988. ‘The Institutional Framework and Economic Development’, 96(3) The
Journal of Political Economy 652–62.
17
Christopher Clague, Philip Keefer, Stephen Knack, and Mancour Olson. 1999. ‘Contract-
Intensive Money: Contract Enforcement, Property Rights and Economic Performance’, 4 Journal
of Economic Growth 185–211.
18
Johnson, McMillan and Woodruff (n 11).
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of papers, Keefer19 and Keefer and Knack20 show that insecurity in property rights brought
on by government policies regarding redistribution of wealth or expropriation can lead to
slow growth, leading them to conclude that a key element of the enjoyment of property
rights is a political system which places substantial checks on government action.
Other scholars have called into question the methods used in studies that fail to explore
the issue of reverse causality mentioned above.21 In one of the few exceptions to this
methodological shortcoming, Acemoglu and Johnson22 attempt to use more advanced
statistical methods23 to ascertain the causal relationship between property and contract
rights and economic growth. Using a sample of 80 former colonies, the authors find that
the stability of property rights, again defined by the (absence of) risk of government
expropriation, has greater effects on long-term and short-term growth than contract
rights. Despite the acknowledgement of the reverse causality issue, the authors can not
completely convince that it is property rights, rather than other aspects of the rule of law,
which lead to economic development. As it turns out the instrumental variable they use,
settler mortality, is an equally good indicator for other components of the rule of law, such
as checks on government, judicial independence, corruption, and insecurity.24 This leaves
us with the uncertainty of knowing exactly which aspect of the rule of law is important
for economic growth.
While property and contract rights are the most studied facets of the rule of law and its
relation to economic development, the intense focus on such rights and protections may
be misplaced. As noted by Fukuyama, ‘[I]t is perfectly possible to have ‘good enough’
property rights and contract enforcement that permit economic development without the
existence of a true rule of law’.25 In other words, a narrow conception of the rule of law
which only includes property rights as a proxy for the rule of law, may be missing other
components, such as limitations on executive authority, thus confining the findings to
states such as China which seem to have property rights protection in place, but lack any
specific legal limits on government power.
Security of Person
Despite the focus on property and contract rights, many scholars see the rule of law more
fundamentally as the government’s ability to provide security for its citizens. Property
19
Philip Keefer. 2007. ‘Beyond Legal Origin and Checks and Balances: Political Credibility,
Citizen Information and Financial Sector Development. In The Policy Research Working Paper
Series: World Bank Policy Research Working Paper 4154, March 2007.
20
Philip Keefer and Stephen Knack. 2002. ‘Polarization, Politics and Property Rights: Links
between Inequality and Growth’, 111 Public Choice 127–54.
21
Arndt and Oman (n 11).
22
Acemoglu and Johnson (n 7).
23
Specifically, they use an instrumental variable strategy which helps limit the possible biases
created by issues of reverse causality and omitted variable bias. An adequate instrument is one
which provides a good proxy for the explanatory variable, but is not correlated to the error terms in
the regression equation used to determine causality.
24
Haggard and Tiede. 2011. (n 5).
25
Francis Fukuyama. 2010. ‘Transitions to the Rule of Law’, 21(1) Journal of Democracy
33–44, 35.
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rights and contract enforcement may be luxuries in countries where individuals are
vulnerable to high rates of crime or because of civil conflict or war. If the government
is unable or unwilling to meet the basic security needs of citizens, then the possibility
of real property rights or contract enforcement is unlikely. At a basic level, if people are
not secure, their property and contracts are not usually either. Security concerns arise
in several contexts: one is concerned with insecurity and its theoretical relationship to
economics;26 another is related to general crime and the ability of the state to keep citizens
secure. The latter in turn depends on how societies and their governments define certain
crimes in the first place. For example, there are many debates and differences within and
between societies regarding the definition of certain crimes, such as rape and domestic
violence, which disproportionally affect women.
While it seems plausible that too much crime could have dire economic effects, correlated
to weakness of the state in law enforcement mechanisms or a high percentage of government
expenditures on criminal justice institutions, such as police or prisons, much of the literature
does not directly attribute high crime rates to poor economic growth. One of the few articles
that ties crime to economic development is Messick27 who focuses on some of the negative
aspects of criminal law reforms in many countries. He suggests that criminal law reforms that
favour defendant rights over punishment may have negative consequences for the economy,
by disrupting informal networks on which economic relations rely in many countries.
However, even if crime is not discussed as directly related to economic development,
several authors use security as a proxy for the rule of law in their empirical studies. The
most prolific of these authors is Robert Barro, who explores the relationship between rule
of law, economic growth, and democracy in a number of works. In Barro’s studies, he uses
the Political Risk Service (PRS) law and order measurement for rule of law seemingly to
capture information on this security dimension as well as institutional aspects. According
to PRS, law and order is aggregated into one score. The law element refers to the legal
system’s impartiality where the ‘order element is an assessment of popular observance of
the law’. PRS suggests that a country may receive a high law score on its judicial system,
while receiving a low order score if it ‘suffers from a very high crime rate or if the law is
routinely ignored without effective sanction’. In influential studies, he finds that law and
order are positively correlated with economic growth in a sample of 100 countries from
1965 to 1990.28 In more recent studies, using the same law and order indicators, he finds
that law and order is much more important than democracy for improving economic
growth and that democracy itself does not necessarily increase law and order.29
26
See J. Hirshleifer, 1995. ‘Anarchy and Its Breakdown’, 103 Journal of Political Economy
26–52; H. Grossman and M. Kim. 1995. ‘Swords or Plowshares? A Theory of the Security of
Claims to Property’, 103 Journal of Political Economy 1275–88 on private predation; A. Dixit.
2004. Lawlessness and Economics, Alternative Modes of Governance (Oxford, UK: Oxford
University Press) on lawlessness.
27
Richard Messick. 1999. ‘Judicial Reform and Economic Development: A Survey of the
Issues’, 14(1) The World Bank Research Observer 117–36.
28
Robert Barro. 1996. ‘Democracy and Growth’, 1 Journal of Economic Growth 1–27; Robert
Barro. 1997. Determinants of Economic Growth: A Cross-Country Empirical Study (Cambridge,
MA: MIT Press).
29
Robert Barro. 2000. ‘Rule Of Law, Democracy, And Economic Performance’, In Heritage
Foundation (ed.) 2000 Index of Economic Freedom (Washington, DC: Heritage Foundation);
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Another growing area of inquiry regarding the relationship between security of person
and economic development concerns civil war. Several scholars, but most notably Collier,30
have demonstrated the dire effects of civil war on economic development. Civil war diverts
resources and human capital from productive economic activities and the provision of
public goods; these diverted resources are then used to destroy public infrastructure and
private property. Moreover, civil conflict can also cover up criminal activity and violence.
Other scholars have indicated how difficult it is to regain the rule of law after the
devastation of civil conflict which has shattered individual security, but on the other hand,
Chen, Loayza, and Reynal-Querol31 claim that virtually all aspects of economic, social, and
political development exhibit gradual improvement following the end of violent conﬂict.
‘Democratic rights are slow to advance and may require the foundation of long-run institu-
tions to be consolidated. In contrast, the perception of law and order can be improved
rapidly by a variety of strong government regimes’.32 However, in a study of 47 developing
countries in which conflict ended between 1970 and 1999, my co-author and I show that
rebuilding the rule of law and making citizens secure after a conflict remains very difficult
and that just ending a conflict is not associated with large gains in the rule of law. Rather,
countries tend to return to the pre-conflict status quo, which might be quite low.33
Corruption
Corruption is another aspect of the rule of law which could greatly impede economic
development. First, weak institutions may drive individuals to turn to corruption as a
more effective if expensive way to resolve disputes. Second, corruption and rent seeking
more generally raise costs for producers and consumers.34 Finally, corruption also may
distort the market and long-run growth through raising barriers to competition, such as
monopolies, setting restrictions on market entry, facilitating private expropriation, and
allowing bureaucratic malfeasance.
In a number of cross-national studies, scholars have found that corruption hinders eco-
nomic development, usually measured by subjective indicators from surveys, such as those
by Transparency International. Mauro35 was one of the first to show that corruption led
Robert Barro. 2014. ‘Democracy, Law and Order, and Economic Development.’ In 2013 Index of
Economic Freedom.
30
P. Collier. 1999. On the Economic Consequences of Civil War. Oxford Economic Papers,
51, 168–83; P. Collier. 2009. Wars, Guns, and Votes (New York, NY: Harper Collins Publishers);
P. Collier, L. Elliott, H. Hegre, A. Hoeffler and M. Reynol-Querol. 2003. Breaking the Conflict
Trap: Civil War and Development Policy (New York: Oxford University Press).
31
S. Chen, N. V. Loayza, and M. Reynal-Querol. 2008. ‘The Aftermath of Civil War’, 22(1) The
World Bank Economic Review 63–85.
32
Ibid., 82.
33
Haggard and Tiede 2014 (n 5).
34
A. Kreuger. 1974. ‘The Political Economy of a Rent-Seeking Society’, 64(3) American
Economic Review 291–303; J. Bhagwati. 1982. ‘Directly Unproductive Profit-seeking Activities’,
90(51) Journal of Political Economy 988–1002; Andrei Shleifer and Robert Vishney. 1998.
‘Corruption’, 108 Quarterly Journal of Economics 599–617.
35
P. Mauro. 1998. ‘Corruption and the Composition of Government’, 68(88) Journal of
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to slower rates of investment and growth. Others followed suit using cross-national data
to show the dire effects of corruption on economic growth.36 Additional studies have
measured the effect of corruption on other outcomes related to economic development
such as education37 and public infra-structure.38
Despite the first wave of articles asserting a straightforward negative connection
between corruption and economic growth, recent studies suggest a more complicated
relationship; specifically, Méndez and Sepúlveda39 show that at low levels, corruption may
aid economic growth. However, this result only holds for countries classified as ‘free’ by
Freedom House. Aidt, Dutta, and Sena40 find that the effect of corruption on economic
development varies with the quality of institutions. In countries with poor institutions,
corruption has little or no effect on growth, while in countries with higher functioning
institutions, corruption may lower economic growth, but economic growth itself is one
factor that helps reduce corruption. As is clear from above, studies on corruption and
economic development provide mixed results, although newer studies seem to indicate
that the type of regime and quality of institutions may affect how corruption impacts
economic growth.
Legal Institutions
Another aspect of the rule of law refers to the quality of legal or judicial institutions. Here,
the discussion revolves around whether certain legal systems, rules, or institutions, such
as courts, foster economic growth.
Legal origins
A prolific literature focuses on how the origin of a country’s legal system (mostly deline-
ated between common and civil law, but also including other origins), may later affect a
country’s economic trajectory.41 These initial papers on legal origin focus on the evolution
of the financial sector, claiming that countries with common law systems, either developed
36
Rafael La Porta, Florencio Lopez-de-Silances, Andrei Shleifer, and R. W. Vishny. 1999. ‘The
Quality of Government’, 15 Journal of Law, Economics, & Organization 222–79; A. Ades and R.
Di Teela. 1997. ‘Rents, Competition and Corruption’, 84(4) American Economic Review 982–93;
Daniel Treisman. 2000. ‘The Causes of Corruption: A Cross-National Study’, 76(3) Journal of
Public Economics 399–457; Stephen Knack and Philip Keefer. 1995. ‘Institutions and Economic
Performance: Cross-Country Tests Using Alternative Institutional Measures’, 7 Economics and
Politics 207–28, 207; S. J. Wei. 1997. ‘How Taxing is Corruption on International Investment’ 82(1)
Review of Economics and Statistics 1–11.
37
Mauro (n 35).
38
V. Tanzi and H. Davoodi. 1997. ‘Corruption, Public Investment and Growth’, In International
Monetary Fund Working Paper.
39
Fabio Méndez and Facundo Sepúlveda. 2006. ‘Corruption, growth and political regimes:
Cross-country evidence’, 22(1) European Journal of Political Economy 82–98.
40
Toke Aidt, Jayasri Dutta, and Vania Sena. 2008. ‘Governance Regimes, Corruption and
Growth: Theory and Evidence’, 36(2) Journal of Comparative Economics 195–220.
41
Rafael La Porta, Florencio Lopez-de-Silances, Andrei Shleifer, and R. W. Vishny. 1998. ‘Law
and Finance’, 106 Journal of Political Economy 1113–55; La Porta, Lopez-de-Silances, Shleifer,
and Vishny. 1999. (n 36); Rafael La Porta, Florencio Lopez-de-Silanes, Cristian Pop-Eleches, and
Andrei Schleifer. 2004. ‘Judicial Checks and Balances’, 112(2) Journal of Political Economy 445–69.
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within the country or through colonisation, were more conducive to financial innovation
and in turn economic growth. Thus, for example, Djankov et al.42 show that civil law
countries tended to be more formalistic in their approach and less flexible towards chang-
ing circumstances. Common law countries on the other hand were more adaptable and
efficient, which in turn had positive consequences for contract enforcement.
In a sharp rebuttal to this literature, Dam43 questions whether legal origin is as signifi-
cant a factor to economic growth as claimed. First, Dam asserts that while La Porta et
al’s argument focuses primarily on the financial sector and how common law systems are
better at protecting minority shareholders’ rights in corporate law and minority creditors’
rights in bankruptcy law, both corporate and bankruptcy law are relatively recent develop-
ments based on statutory and not judge made law. Second, Dam (as well as others) ques-
tions the coding of countries in statistical analyses using legal origin: some countries, such
as those in Latin America, have origins in both common and civil law systems, making
it difficult to classify them under one singular origin. Third, Dam makes a distinction
between private and public law that was missed by many of the legal origin scholars. He
suggests that while legal origins’ scholars emphasise the characteristics of the commercial
and corporate civil codes of France and Germany as a key to understanding the relatively
lower economic development of countries with these origins, private property protection
depends more on public law and the ability to constrain the state. The development of
public law occurred much later and is not reflected in the civil and commercial codes,
which are so central to legal origin scholars’ analyses. In other words, Dam shows that
the focus on the civil law and common law distinction neither follows the development of
law, nor theoretically fits with arguments about its importance.
Finally, with so much emphasis on the origins of systems of law, scholars seem to
disregard individual countries’ subsequent legal development. Conversely, Berkowitz,
Pistor, and Richard44 suggest that the manner in which a law was transplanted or
integrated into a country matters. According to these authors, economic development
is stronger when a society has adopted a transplanted law to fit the country’s social and
cultural context or the country’s population has a familiarity with the transplanted law.
Furthermore, the legal origin scholars fail to account for the convergence of law and
families of law over time: the stark differences between civil and common law systems
have all but dissipated as many common law systems are deeply involved with statutory
interpretation and many civil law systems have integrated common law practices into their
legal cultures. Moreover, with the rise of international law and courts and processes of
globalisation, common and civil law systems have begun to converge.
Legal institutions
Aside from legal origins, scholars have turned to analysing whether specific features of
legal institutions enhance economic development. The focus on how well courts and legal
procedures work is based on the early law and development movements of the 1960s
42
Simeon Djankov, Rafael La Porta, Rafael La Porta, Florencio Lopez-de-Silances, and
Andrei Shleifer. 2003. ‘Courts’, May Quarterly Journal of Economics.
43
Dam (n 13).
44
Daniel Berkowitz, Katharina Pistor, and Jean-Francois Richard. 2003. ‘Economic Develop
ment, Legality and the Transplant Effect’, 47 European Economic Review 165–95.
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and 1970s in Latin America, Asia, and Africa. Foreign donors focused on improving
courts, procedures, and the professionalisation of judges and lawyers as a way to enhance
economic development. It was thought that improving legal institutions would enhance
efficiency as well as improve trust in those institutions. Those supportive of the law and
development movement believed that law could be used as a tool to bring about social and
economic changes. Those who are sceptical of the ideas behind this movement as well as
those who suggested why it failed, criticise how foreign policy-makers attempted to bring
their largely western understandings of law and policy to foreign governments without
any real understanding of the society’s culture or existing legal practices.
Policy-makers, during the law and development movement and again during its revival
after third wave democratic transitions, have often focused on courts and their independ-
ence as the most appropriate vehicle for promoting the rule of law. Judicial independence
has two attributes, which are of special interest to those concerned with economic devel-
opment. First, strong executives empower courts and make them independent in order to
establish credible commitments that assuage the concerns of foreign and domestic inves-
tors, who seek protection for contracts and property rights in courts which are not subject
to executive dominance. Such credible commitments also may build trust in government
and thus encourage further investment. Second, independent courts themselves may
provide a powerful check against strong executives who otherwise may seek to expropriate
property without proper due process or change public policy arbitrarily in a way that
could hurt economic activity.
How are independent judiciaries created in practice? In some countries rules about judi-
cial independence are found in constitutions or regulations governing courts. For example,
some countries’ constitutions or laws specifically state that the judiciary or at least the
highest court in the land is independent. In other countries, the ideas of independence
may be found in documents (such as Federalist 78 in the American case). Regardless of
what is found in constitutions or laws, courts might find ways to act independently in
practice. Ultimately, this ability to act independently depends on the political conditions
of each country and the commitment to constitutionalism more generally.
While judicial independence has been widely held to enhance economic activity, it is
difficult to ascertain when it exists. Scholars speak about judicial independence without
specifying what they mean by the term, what level of court needs to be independent or the
causal connection between judicial independence and economic development. To make
matters worse, the measurements used to determine judicial independence are often based
on institutions such as tenure and appointment mechanisms of the highest courts in the
nation, completely disregarding the independence of lower courts which are more likely to
handle individual disputes about breached contracts or expropriated property. Thus, both
Feld and Voigt and La Porta, measure judicial independence using high courts’ rules for
tenure and appointment to ascertain the effect of independence on economic development.
Using this method, La Porta et al.45 find that judicial independence does have positive
effects on the security of property rights, while Feld and Voigt,46 go a step further and show
that in a sample of 57 countries, de jure independence of high courts is less important for
45
La Porta et al. (n 41).
46
Feld and Voigt (n 11).
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economic growth than de facto independence. Their significant study acknowledges that
many countries have specialised courts and that often the highest courts only deal with
constitutional issues, but they justify their focus on high courts on the need to ‘radically’
reduce complexity and the use of higher courts to confront the executive.
Lastly, another perspective on judicial independence suggests that it is not static, but
fluctuates with the political context, such as the executive’s party or fragmented govern-
ment47 or even fluctuates by policy issue.48 If this is the case, then the ability of a high
court to effectively restrain government expropriation or unfavourable economic policies
depends largely on the political context in which the court operates.
BUILDING A RESEARCH AGENDA
Despite research on the rule of law and institutional economics, the outcomes of the exist-
ing studies are not easily generalised to time periods or countries beyond those indicated
in each particular study. Further, as previously mentioned, issues of data availability,
construct validity, and the difficulty of establishing causal relationships make this an area
of study with room for further development.
As previously mentioned finding adequate measurements for the rule of law or its
various factors is challenging. Scholars may want to look at both a combination of
subjective and more objective measurements related to their specific area of inquiry. If for
example, the focus is on the level of property protection in a country, researchers might
want to use both subjective measures regarding perceived protection of property rights
alongside more objective measures regarding the existence and availability of procedures
for dealing with these kinds of disputes, such as the average time to bring a property claim
and the percent of companies or individuals that win such claims against the government.
While there are several newly proposed and more objective measurements which make a
substantial contribution in this direction, such measures do not always have temporal or
spatial coverage to be of use in large statistical analyses.
Additionally, much clearer specification of the causal links between various attributes
of the rule of law and aspects of economic development would benefit scholarship in
this area. For example, scholars should explain more rigorously how issues of security
affect economic development or exactly how written laws about property rights enhance
property protection in practice. While institutions and specific laws create a foundation,
actual practices on the ground greatly influence how effectively the written law is imple-
mented. Scholars should carefully articulate the factors which may make property rights
enforcement effective and then determine if there are measures that capture this.
Establishing causality is very complex in this line of research and may need to be
addressed by using a range of methods. While one or two regression analyses cannot
abate such critiques, scholars that use a range of methods or a mixed methods approach
47
Mathew McCubbins, Roger Noll, and Barry Weingast. 2006. ‘Conditions for Judicial
Independence’, 15 Journal of Contemporary Legal Issues 105.
48
Lydia Tiede. 2006. ‘Judicial Independence: Often Cited, Rarely Understood’, 15 Journal of
Contemporary Legal Issues 129–61.
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may be better positioned to argue that their studies show more than simple correlation
between variables of interest.49 Further, more use of experimental and quasi-experimental
methods could be used to establish what conditions are necessary for written laws or rules
to effectively constrain behaviour.
Finally, more work could be done to integrate some of the traditional comparative
politics literature into the study of the rule of law and institutional economics. Much of
the effect of the rule of law on economic development may depend on subtle differences
among different types of political regimes.50 A few studies have begun to tackle not only
the relationship between the rule of law and economic development, but also their con-
nection to democracy,51 democratic transitions, and the quality of political institutions.52
Certainly, scholars have shown that various aspects of the rule of law seem to positively
affect economic development, but additional work is now needed to demonstrate these
relationships both theoretically and empirically. The scholarly practitioner literature and
studies done in the field by foreign donors and domestic policy-makers appear to be
conducted with little reference to some of the contributions by the academy. Likewise,
scholars rarely analyse the effects of specific rule of law programs that have been chosen
to improve property rights or some other facet of the rule of law on economic growth.
Much further research is needed at the micro- and macro- level and across disciplines to
better understand the complex relationship between the rule of law, legal institutions, and
economic development.
49
See Sharon Crasnow and Stephan Haggard. 2015. ‘Explaining Rare Events in Political
Science: A Mixed Methods Approach.’ Presented at the Annual Meeting of the American Political
Science Association in San Francisco from September 3–6, 2015.
50
See Steven Levitsky and Lucan Way. 2002. ‘The Rise of Competitive Authoritarianism’,
13(2) Journal of Democracy 151–65.
51
Barro 1996 (n 28); Barro 2000 (n 29); Barro 2014 (n 29).
52
Dani Rodrik. 2000. ‘Institutions for High-Quality Growth: What They are and How to
Acquire Them.’ In NBER Working Paper No. 7540; Dani Rodrik and Romain Wacziarg. 2005. ‘Do
Democratic Transitions Produce Bad Economic Outcomes?’, 95(2) American Economic Review
50–55; Sharun Mukand and Dani Rodrik. ‘The Political Economy of Liberal Demoracy’, Working
paper.
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25. The legal empowerment of the poor
Dan Banik*
The history of international development policy and development aid is a complicated

one, a mixture of hopeful altruism and difficult reality. Poverty and inequality appear as
resilient as ever, and human development (understood as development that prioritizes
human well-being and aims at enlarging opportunities, freedoms, and choices) continues
to proceed slowly in large parts of the world. The efforts by a wide range of actors to
promote development and reduce poverty have, in recent times, yielded numerous positive
results. The world has thus witnessed remarkable improvements in agricultural produc-
tion, life expectancy and literacy—together with a reduction in child mortality and the
incidence of infectious disease in many parts of the world.
If we focus on economic growth defined as ‘GDP per capita’, then there are numerous
success stories from all over the world. The most widely cited example is, of course, the
four Asian Tigers: Singapore, Taiwan, Hong Kong, and South Korea, which witnessed
exceptionally high rates of growth starting in the 1960s that propelled them into the
strata of high-income economies. In the past couple of years, several countries have
regularly made it onto the list of the fastest-growing economies in the world, including
countries you may not immediately associate with rapid GDP growth such as: Ghana,
Laos, Angola, Mozambique, Ethiopia, and Rwanda. However, unlike the Asian Tigers,
which were successfully able to use growth to eradicate poverty, many of these countries
continue to face challenges in distributing the benefits of growth within their countries.
Indeed, reducing poverty and combating various types of deprivation remain one of
the foremost challenges facing our world today despite important successes and many
promising practices in the field of development.
Several influential actors in the international development discourse have, in the past
couple of decades, emphasized the importance of encouraging and promoting legal and
judicial reform to spur accelerated economic growth in developing countries. They have
argued that economic growth and poverty reduction will be more successful when the
quality of national institutions, including legal institutions, is improved. Studies commis-
sioned by the World Bank that have considered the relationship between the rule of law
and per capita GDP conclude that citizens are more likely to be economically well-off
when their government upholds the rule of law. Available empirical evidence appears to
support such claims as developed nations of the world score almost invariably perform
well on rule of law indices, unlike developing countries.1
The relationship between law and development (in the international academic and
policy discourses) until the 1990s revolved mainly around improving the content of
existing laws, ensuring better and safer working conditions, providing better facilities to
* All websites were live at 15 September 2017.

1
‘One Rule for the Rich’, The Economist, 13 March 2008.
419
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lawyers, and strengthening the capacity of state institutions. The World Bank and other
organizations continue to believe that the rule of law is directly related to per capita GDP
and that citizens will benefit from economic growth when their governments uphold the
rule of law. However, critics have argued that an excessive faith in the rule of law does not
always result in economic benefits such as better development and poverty reduction or
political benefits such as democratisation.2 The 1990s also witnessed a growing interest
in linking economic development and poverty reduction on the one hand with improved
access to justice and a stronger focus on human rights on the other. Scholars and aid
practitioners claimed that a human rights focus ensures that the developmental process
will be correct, both morally and legally, thereby helping build stronger national and local
institutions based on genuine social mobilization and accountability. Among the benefits
of adopting a so-called human rights-based approach to development (HRBA) was the
increased likelihood of making development practitioners confront the tough questions
of their work: matters of power and politics, exclusion and discrimination, structure, and
policy.3 Other supporters of the HRBA argued that the consistently high levels of global
poverty required revisiting its root causes, including the role of national policymaking.4
Still others argued that the continuation of poverty in a world of plenty should be
considered a ‘violation of human rights’ where the rich nations were deemed culpable.5
The HRBA gained momentum following the UN Millennium Declaration (2000) where
world leaders appeared to endorse the idea that the abolition of poverty was, in reality, a
matter of international redistributive justice.
While the movement advocating a stronger linkage of human rights to economic
development began gaining influence among sections of the international development
community, another movement advocating a narrower focus (the legal empowerment of
the poor or LEP) appeared in the international discourse. Much influenced by the work
of Peruvian economist Hernando de Soto and a handful of legal scholars, many began
making a strong case for the provision of, and greater access to, the legal and institutional
tools needed to combat poverty. Supporters of LEP thus argued that poverty persists
partly because the poor do not enjoy legal rights or the power to exercise those rights.
They also claimed that since over four billion people live without legal protection, adopt-
ing a strategy of legal empowerment was crucial for the future of developing countries.
The goal of empowering the poor, they argued, requires more than just a simple transfer
of resources but includes the creation of sound legal and political frameworks, which
specifically address the needs of poor and vulnerable groups in the population and hold
political and administrative leaders accountable for policy failures. The LEP approach
2
See: Golub, S. (2003), ‘Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative’,
Working Paper No. 41, Rule of Law Series, Washington DC: Carnegie Endowment for International
Peace; Carothers, T. (2003), ‘Promoting the Rule of Law Abroad: The Problem of Knowledge’,
Rule of Law Series working paper, Washington DC: Democracy and Rule of Law project, Carnegie
Endowment for International Peace.
3
Uvin, P. (2004), Human Rights and Development, Blommfield, Conn.: Kumarian Press.
4
Sengupta, A. (2008), ‘The Political Economy of Legal Empowerment of the Poor’, in
D. Banik (ed.), Rights and Legal Empowerment in Eradicating Poverty, Farnham: Ashgate.
5
Pogge, T. (2005) ‘World Poverty and Human Rights’, Ethics and International Affairs, 19(1):
1–7.
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The legal empowerment of the poor 421
gathered momentum particularly with the establishment of the Commission of Legal

Empowerment of the Poor (hereafter CLEP) in 2005, a move actively supported by a
group of developed and developing countries.6
Like the HRBA, the LEP approach has since been promoted and applied by a
set of international, national, and local organizations in their attempt to reform
conventional (needs-based) developmental efforts, which are criticized for treating
the poor as passive receipts of welfare rather than active participants and agents of
change. This chapter revisits the LEP framework and examines the potential benefits
and challenges related to its implementation in developing country settings. I begin
with a brief overview of the conceptual foundations of legal empowerment, with a
specific focus on the work of the CLEP. Thereafter I discuss the response to LEP in
the international development discourse, including the work of organisations that have
included legal empowerment in their activities. I conclude with some reflections (based
on the experience of the Right to Food movement in India) on the usefulness of the
LEP approach as well as the challenges ahead in applying the concept to fight poverty
and promote development.
WHAT IS LEGAL EMPOWERMENT?
When the idea of legal empowerment emerged around 2002–03, it was against the
backdrop of a shared feeling that the relationship between law and development
in the international development discourse was very narrowly focused on law,
lawyers, and state institutions. By comparison, legal empowerment was launched as
a broad concept that goes beyond the confines of the purely formal legal system.
Rather, it focuses on identifying and providing poor individuals and households with
legal and institutional tools. According to Stephen Golub,7 one of the early proponents
of the concept, since laws in many poor countries typically work against the poor, the
LEP approach highlights the need for a better and closer integration of the rule of
law into a broader package of development-related activities by placing emphasis on
the ‘use of legal services and related development activities to increase disadvantaged
populations’ control over their lives’.8 Thus, legal empowerment is promoted as a rule
of law that is just and enforceable, allowing nations to reduce poverty quickly and more
effectively.9
Over the years, legal empowerment as a concept has generated three major approaches
related to development and poverty reduction: (a) reforming national and local judiciaries
due to the poor often facing substantial barriers in accessing justice; (b) addressing the
challenges posed by a rapidly growing informal sector by simplifying business regulations;
and (c) formalizing property rights, with a focus on land titling programs. Some have
described the LEP approach as providing ‘a useful organising framework to navigate
6
Banik (n 4).
7
Golub (n 3), pp. 2–3.
8
Ibid.
9
Albright, M. and de Soto, H. (2007), ‘Giving the Poor Their Rights: How Legal Empowerment
Can Help Break the Cycle of Despair’, Time Magazine, 16 July 2007.
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through the complex landscape which has resulted from the fusion of the two tectonic
plates driving development today: improved governance and poverty reduction’.10
The LEP approach came into the international limelight when the CLEP was
established as an independent international entity in 2005 with support from a group of
developing and industrialised countries including Canada, Denmark, Egypt, Finland,
Guatemala, Iceland, India, Norway, Sweden, South Africa, Tanzania, and the United
Kingdom. The initial justification for yet another new approach aimed at solving the
challenges related to global development was a reference to a feature unaddressed by the
Millennium Development Goals (MDGs), namely that a large majority of the world’s
poor are locked into the informal or ‘extra-legal’ sector of their national economies, and
consequently do not enjoy effective legal protection or sufficient recognition of their
rights and assets.
Although the establishment of the CLEP in 2005 provided a real boost to the legal
empowerment movement, the process of forming the Commission itself was highly
controversial. This was primarily due to the CLEP’s original mandate, which largely
embraced the ideas of Hernando de Soto (who was appointed co-chair of CLEP along
with former US Secretary of State Madeline Albright). De Soto is a polarizing figure in
many development circles having argued in his 2001 book The Mystery of Capital11 that
what really separates the developed from the developing world, is the existence (or lack
of) legally enforceable transactions on property rights. He claims that the ‘missing link’
necessary to convert an asset into capital is a functioning – universal and streamlined
– property system. For de Soto, any asset whose economic aspects are not fixed in a
formal property system is categorized as ‘dead capital’, and is extremely hard to transfer
efficiently in the market. The widespread lack of such registration of poor people’s assets
in developing countries makes their resources ‘commercially and financially invisible’.12
Informality results because the public (or formal) sector in most developing countries
is excessively regulated and cumbersome in addition to producing high transaction costs.
These features prevent the poor from being integrated in to the formal economy. By
comparison, de Soto claims that capitalism has triumphed in Western countries that have
already gone through a long and gradual formalization process where informal and local
property systems were integrated into one coherent formal system. These countries were
also able to adapt their bureaucracies and judiciaries to the socio-economic needs of the
population. Hence, the challenge for developing countries is ‘not whether they should
produce or receive more money but whether they can understand the legal institutions and
summon the political will necessary to build a property system that is easily accessible to
the poor’.13 This reflects a major problem for the poor, namely their inability to convert
their vast resources into capital. The lack of a coherent system of property rights forces
a great majority of the population in developing countries to live and work informally,
10
Palacio, A. (2006), Legal Empowerment of the Poor: An Action Agenda for the World
Bank, Washington DC: World Bank, http://rru.worldbank.org/Documents/PSDForum/2006/
background/legal_empowerment_of_poor.pdf p. 14.
11
De Soto, H. (2001), The Mystery of Capital: Why Capitalism Triumphs in the West and Fails
Everywhere Else, London: Black Swan.
12
Ibid., p. 27.
13
Ibid., p. 66.
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without any legal right to protection of their property. This also prevents them from
realizing the capital value of their property, for instance by using their house as collateral
for credit.
Although de Soto’s ideas were embraced in certain political quarters, not least by the
Government of Norway which subsequently became one of the major financiers of the
CLEP, the call for formalization also generated intense and heated debates in academic,
political, and civil society circles. Some of the major criticisms included accusations of an
overestimation of ‘the direct economic benefits that legal titling could bring to the poor
while downplaying important social impacts’, particularly in rural areas, and an underes-
timation of ‘the difficulties in formalizing property rights in many developing countries’.14
Because of his identification of free markets based on formal private property rights as
the central mechanism of capitalistic development, de Soto’s approach was also criticized
for advocating a typical neoliberal agenda.15
Perhaps in response to many of these criticisms, the final CLEP report radically moved
away from an understanding of legal empowerment narrowly focused on formalizing
property rights as a basis for the security and welfare of the poor to a broader one that
viewed empowerment as a global social contract involving a so-called ‘bundle of rights’.
Rather than simply providing advice, LEP encourages lawyers to view the poor as partners
and encourage people to participate directly in influencing public policy and priorities. In
addition, the LEP approach also places considerable emphasis on non-judicial strategies,
which may in certain situations be better able to address the concerns of the poor.
The CLEP report went on to argue that LEP as a development strategy differs from
conventional development approaches by emphasizing the ‘legal underpinnings of entre-
preneurship, employment, and market interaction’ and with a focus on what transpires in
the informal economy, particularly at a local level.16 It identified five central features that
distinguish LEP from related approaches: bottom-up and pro-poor (in design and imple-
mentation); affordable (measures and procedures); realistic (understanding of formal
and informal systems including how local institutions function); liberating (removal
of economic and institutional barriers); and risk aware (monitoring and assessment of
potential but unintentional harm may occur to certain groups of the poor).17
Based on the above, the CLEP arrived at a definition of legal empowerment as a
‘process of systemic change through which the poor and excluded become able to use the
law, the legal system, and legal services to protect and advance their rights and interests
as citizens and economic actors’.18 Consequently, the two central conditions for LEP
are ‘identity’ and ‘voice’. For example, ‘The poor need (proof of) a recognised identity
that corresponds to their civic and economic agency as citizens, asset holders, workers,
and businesspeople.’ In addition, ‘Without a voice for poor people, a legal empowerment
process cannot exist’ and ‘this voice needs to be based on information and education on
the one hand, and organisation and representation on the other’.19
14
Palacio (n 11), pp. 7,16.
15
Banik (n 4).
16
Ibid., p. 2.
17
Ibid., p. 77.
18
Ibid., p. 2.
19
Ibid., p. 14.
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While legal empowerment was initially understood mainly in relation to access to justice
or formalisation of the informal sectors of the economy, the CLEP arrived at a LEP
framework consisting of four interrelated pillars: access to justice and the rule of law;
property rights; labour rights; and business rights. Within this framework, access to justice
and the rule of law provides the overarching umbrella for development activity. Law pro-
vides the ‘platform’ on which important socio-economic and political institutions exist,
‘and to be legitimate, power itself must submit to the law’.20 Laws cannot be considered
legitimate or ‘revered as a foundation of justice’ if they create barriers for the wellbeing of
the poor.21 Individuals and groups therefore enjoy rights, which are in turn guaranteed by
the state, only when the law ‘works for everyone’ and ‘defines and enforces the rights and
obligations of all’.22 In terms of concrete provisions for reform and implementation, the
CLEP highlighted the importance of ensuring the right to legal identity (e.g., registration
at birth), repealing or modifying discriminatory laws, strengthening the work of civil
society organisations, supporting alternative dispute resolution mechanisms, supporting
paralegals, improving the workings of the police force, creating accessible judicial and
land administration systems that recognise and integrate customary and informal legal
procedures, and focusing on the legal empowerment of specific groups such as women,
refugees, indigenous populations and internally displaced persons.23
The second pillar assumes that ‘Ownership of property, alone or in association with
others, is a human right’ and highlights the need for ‘imaginative legal thinking’ in col-
lective, tenure, and customary rights to prevent discrimination of women and indigenous
groups from owning, inheriting, and managing property and in protecting the poor
from arbitrary evictions.24 Concrete policy recommendations include various strategies
of enabling poor individuals and groups top use property as collateral or mortgage for
business purposes.
In relation to labour rights, there are a wide range of LEP policy recommendations,
which include: protection and promotion of the right to association in order to give
identity and voice to the working poor; creation of employment opportunities; improve-
ment of the regulation and functioning of labour markets; effective enforcement of social
protection mechanisms (e.g., medical care, health insurance and pensions) to protect
against shocks; implementing a core sets of workers’ rights in the informal sector; ensur-
ing the promotion of gender equality and fulfilling national obligations to ILO standards.
Although not a basic human right, business rights under the LEP framework relate to
the ability of small- and medium-business enterprises to access basic financial services
and infrastructural facilities. These include opportunities and protections such as: the
ability to enter into contractual obligations or to make deals; to raise investment capital
through shares, bonds, or other means; to contain personal financial risk through asset
shielding and limited liability; and to pass ownership from one generation to another.25
20
Ibid., p. 3.
21
Ibid., p. 4.
22
Ibid., p. 2.
23
CLEP (2008), Making the Law Work for Everyone, volume 1, New York: Commission on
Legal Empowerment of the Poor, UNDP pp.5–6.
24
Ibid., pp. 6, 34–6.
25
Ibid., p. 8.
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Such opportunities must specifically target women and facilitate their access to markets,
and in general protect and promote the right to vend and indulge in related activities
including access to services such as water, sanitation, and electricity. Other activities
protecting this pillar include encouraging the state to offer facilities related to credit,
insurance, and pensions.26
RESPONSE OF THE INTERNATIONAL DEVELOPMENT

COMMUNITY
The CLEP’s final reports did elicit interest in sections of the development community,
but not to the extent that was perhaps expected. The response of influential actors such
as the World Bank was lukewarm. Indeed even though a former Vice-President of the
World Bank, Ana Palacio, appeared to embrace the central tenets of the LEP approach,
the organisation preferred to pursue what it called its Justice for the Poor programme
rather than rechristen its efforts in the justice field as LEP.
Even before the CLEP report was published, there was a feeling in international
development circles that the conceptual foundation of the approach was weak. This was
not, however, a general criticism of legalistic approaches in contrast to moral and political
approaches as the law has a distinctive character and normative force. Legal standards
are also applicable to all actors in society, and codified international legal standards
can be applied to potentially criticise government action or inaction.27 However, legal
approaches do not necessarily pay adequate attention to moral disputes that characterize
the implementation of human rights principles. They also underestimate the ability of
political actors to ignore, bypass or selectively implement judicial recommendations and
verdicts. Indeed, a major shortcoming of the LEP approach thus relates to its inability to
specify how the purely formal legal system can be extended to also encapsulate political
empowerment.28
Some of the harshest criticisms have been directed at the sections of the LEP
approach that are closely associated with Hernando De Soto. Critics argue that the
formalization of land tenure through titling has not only proved too socially and insti-
tutionally complex, but also costly and time consuming. As a result, some believe that
formalization is simply not an effective tool to address the enormous scale of the global
poverty problem.29 Others have noted that the informal market and informal forms
26
Ibid., pp. 8–9.
27
Meckled-Garcia, S. and Cali, B. (2006), ‘Lost in Translation: The Human Rights Ideal and
International Human Rights Law’, in S. Meckled-Garcia and B. Cali (eds), The Legalization of
Human Rights: Multidisciplinary Perspectives on Human Rights and Human Rights Law, Abingdon:
Routledge.
28
Banik, D. (2009) ‘Legal Empowerment as a Conceptual and Operational Tool in Fighting
Poverty’, Hague Journal on the Rule of Law, 1(1): 117–31.
29
See: Kaarhus, R., T. A. Benjaminsen, A. Helum and I. Ikdahl (2005), ‘Women’s Land Rights
in Tanzania and South Africa: A Human Rights Based Perspective on Formalisation’, Forum
for Development Studies, 32(2): 443–82; Nyamu-Musembi, C. (2006), ‘Breathing Life into Dead
Theories about Property Rights: de Soto and Land Relations in Rural Africa’, IDS Working Paper
272. http://www.ids.ac.uk/ids/bookshop/wp/wp272.pdf
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of urban settlement and land tenure (that characterize many developing countries,
particularly in Africa) are often more contextual, efficient, and flexible, functioning
as well if not better than land tenure arrangements that are based on formalisation.30
Still others argue that advocating the formalizing of property rights as the major form
of development intervention gravely oversimplifies the complex and diverse problems
developing countries experience.31 De Soto’s brand of LEP is thus accused of ‘fanning
the delusion that anyone, anywhere, can become a fully-fledged capitalist’ and that such
policy prescriptions tend to ‘persuade policy makers that they need to do little more
than offer title deeds and then leave the market to do everything else’.32 Consequently,
some development actors have expressed concerns that some of the narrow policy
prescriptions advocated by the LEP agenda may push more or equally important issues
off the development agenda.33
Some development scholars and practitioners have also questioned the need for yet
another approach that bears numerous similarities to already existing and well-known
approaches. For example, although it appears to embrace a core focus on human rights,
it is not clear how and to what extent the LEP approach is similar to or differs from the
more established human rights approach to development. Sengupta34 argues that legal
empowerment must be viewed as an integral part of the broader human rights discourse,
which will in turn allow for the use of existing international human rights instruments
that have been largely accepted by the international community. This includes the idea
that the obligation to fulfil the rights of the poor transcends national boundaries and
extends to all countries that have ratified the human rights treaties and conventions. The
development discourse is replete with jargon, and Sengupta and others thereby question
the need to push for yet another new approach rather than build on, or further refine,
existing ones.35
There have also been concerns over the actual implementation of LEP-related activities,
and the nature of the policy advice that it offers to political leaders in various corners
of the world. Madeline Albright, co-chair of CLEP, recognised this importance when
she observed that, ‘Legal empowerment will only be recognised as a useful approach to
poverty reduction if it offers political leaders a viable path for implementing large-scale
reforms.’36 A huge challenge is to make countries and their leaders feel comfortable while
adopting a new and untested concept within their territories. In the case of LEP, a major
question has been on whether leaders are fully aware of the implications that genuine legal
empowerment can bring about. If they feel threatened by anticipated results, the LEP
30
Benda-Beckmann, F. von (2003), ‘Mysteries of Capital or Mystification of Legal Property?’
European Journal of Anthropology, 41, 187–91.
31
Gilbert, A. (2002), ‘On the Mystery of Capital and the Myths of Hernando de Soto: What
Difference Does Legal Title Make?’ International Development Planning Review, Liverpool:
Liverpool University Press. http://www.naerus.net/old/workshop2001/papers/gilbert.pdf.
32
Ibid., p. 15.
33
Domingo, P. and O’Neill, T. (2014), ‘The Politics of Legal Empowerment: Legal Mobilisation
Strategies and Implications for Development’, Report #9008, Overseas Development Institute,
https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/9008.pdf.
34
Sengupta (n 4).
35
Banik (n 4)
36
M. Albright, ‘It’s Time for Empowerment’, Economist, 16 November 2006.
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agenda may not succeed in the long term in terms of receiving political support. At the
same time, it is important to question whether political leaders are necessarily the main
agencies for the promotion of legal empowerment. While they can be major vehicles of
social and political change, politicians in many poor countries are also often the major
obstacles in the field of empowerment. Indeed, according to LEP proponents such as
Golub,37 legal empowerment programmes have been most successful when communities
and specific policies or laws have been targeted rather than simply relying on a heavy
top-down (and politician-led) approach.
Despite the lukewarm reception that it received following the publication of the CLEP
report, several national and international organizations have adopted the LEP approach
in their daily operations. The major international actor that has embraced the approach
is the United Nations Development Programme (UNDP). It has identified the following
four focus areas that are very much in tune with the CLEP report’s recommendation:
the rule of law and access to justice; labour rights; property rights and tenure security;
and rights to livelihoods and entrepreneurship. Based on a quick survey of the UNDP’s
website, it appears that much of the organisation’s efforts are centred around the rule of
law and access to justice initiatives in a selected few countries. The organization advo-
cates law and justice sector reforms that will enable poor and vulnerable groups in the
population to ‘realise the full value of their human and physical capital’.38 It emphasizes
the importance of ‘developing low-cost justice delivery models’ that take into account
land disputes, the cost of legal services, and the capacity and willingness of citizens to
afford such services. In relation to justice sector reforms, the UNDP highlights the need
to reduce congestion in the court system, improve the incentives of the judiciary and law
enforcement agencies to carry out their functions and further improve the efficiency of
informal and alternative dispute resolution mechanisms. In recent years, the UNDP has
prioritized crisis-affected and so-called ‘fragile states’ such as Syria, Ukraine, Liberia,
Sierra Leone, Somalia and the Central African Republic. The interventions have
focused on increasing safety and security (e.g., civil police force in Somalia), building
trust through accessible and effective justice and security institutions (e.g., supporting
paralegals in Burundi to provide legal aid to women), improving the delivery of justice
and security for women and dealing with the legacy of violence (e.g., establishment
of an emergency call centre in South Sudan that responds to sexual and gender based
violence).39
In addition to the UNDP, other large organizations continue their on-going work,
which is directly or indirectly related to the LEP agenda. Thus, the International Labour
Organisation (ILO) has been the main champion for promoting the decent work agenda
(which is closely related to labour rights in the LEP approach). Decent work, according
to the ILO, includes:
37
Golub (n 2).
38
http://www.undp.org/content/undp/en/home/ourwork/democraticgovernance/focus_areas/
focus_justice_law/legal_empowerment.html (Accessed: 13 May 2016).
39
UNDP (2014), ‘Strengthening the Rule of Law In Crisis-Affected And Fragile Situations’,
Global Programme Annual Report 2014, http://www.undp.org/content/undp/en/home/librarypage/
democratic-governance/access_to_justiceandruleoflaw/rule-of-law-global-programme-annual-
report-2014.html.
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Opportunities for work that is productive and delivers a fair income, security in the workplace
and social protection for families, better prospects for personal development and social integra-
tion, freedom for people to express their concerns, organize and participate in the decisions that
affect their lives and equality of opportunity and treatment for all women and men.40
Aside from the ILO, the UNDP and the Food and Agricultural Organization (FAO)
of the United Nations, several civil society organizations have in recent years channelled
their resources toward the promotion of property rights and tenure security. Similarly,
there are numerous actors working towards building private-public partnerships and
encouraging the development of small businesses in developing countries. The major
actor here are micro-credit organizations such as the well-known Grameen Bank of
Bangladesh, although newer actors in Africa are also emerging. One such actor that has
demonstrated impressive results in promoting women’s rights is Kenya Women Holding,
which builds on the Grameen Bank model, and provides advice as well as small loans to
women entrepreneurs in Kenya.
The available evidence indicates that the civil society sector has been the main vehicle
for the promotion of the legal empowerment agenda. Two organizations in particular—
Hakí and Namati—have been at the forefront, having embraced the central tenets of
LEP. Hakí is a non-profit social enterprise and consists of a global network of around
50 community organizations coordinated by a team of lawyers and community-based
development experts. It encourages local community engagement by building networks
of paralegals and public interest advocates that provide affordable legal services at the
local level. The network works towards strengthening land and natural resource rights,
preventing violence against women and highlighting acts of corruption. Hakí has been
one of the most prominent supporters of the LEP approach and has undertaken several
studies that have advanced the research and policy-making agenda on legal identity, land
reforms, gender-based violence, and the rights of indigenous peoples.41
Namati is another global legal empowerment network composed of over 550 groups.42
It has adopted a theory of change that builds on grassroots innovation, where members
develop and test methods that legal advocates can apply to protect community land, pro-
mote environmental justice and citizen rights, and realise the right to health of people living
in poverty. National and global coalition of members then applies these locally-developed
methods and best practices to influence the policy process. Namati, which has projects
in a diverse group of countries including Liberia (governance), Mozambique (healthcare
delivery), India (environmental regulation), and actively tracks data which is used for
impact evaluations and the development of practitioner guides on a broad range of topics.
Despite being relatively new, both Hakí and Namati appear to have established several
innovative initiatives that have operationalized the LEP approach to the rule of law on the
ground. While it is too early to assess their effectiveness and potential impact on poverty
reduction, both organizations have emphasised the importance of impact evaluations and
learning from experiments in the field.
40
For an overview of ILO’s activities on the topic, see: http://www.ilo.org/global/topics/decent-
work/lang--en/index.htm.
41
For an overview, see: http://www.hakinetwork.org/resources/.
42
See: https://namati.org/network/members/.
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EMPOWERMENT: LEGAL AND POLITICAL DIMENSIONS
A very successful case of civil society mobilization to advance developmental goals has
been the right to food movement in India.43 Although this took place well before the LEP
approach gained momentum, it is nonetheless illustrative of how law and legal tools can
be used to effectively combat discrimination, reduce poverty, and promote development.
A series of initiatives by the Indian Supreme Court that began in the 1980s popularized
so-called public interest litigation (PIL) in the country. This meant that the requirements
of standing were broadened to allow anyone to litigate in the public interest. In addition,
fact-finding initiatives by the courts were institutionalized, and orders were issued by the
Supreme Court to give supervisory powers to judicial institutions for the monitoring and
implementation of their own orders. As a result, Indian courts experienced a radical trans-
formation of their roles in safeguarding human rights, especially the right to life:44 PILs
opened the door for civil society organizations to litigate on behalf of the downtrodden.
One such case involved the right to food. Despite hundreds of PILs filed every year, this
case has been the Indian judiciary’s most prominent attempt to make economic, cultural,
and social rights justiciable. In the process, the case has received widespread attention
both at home and abroad.
In early 2001, major national newspapers reported that people were dying from starva-
tion in several parts of India. The Rajasthan branch of an NGO—People’s Union of Civil
Liberties (PUCL)—submitted a writ petition (accepted as a PIL) to the Supreme Court
in April 2001, questioning whether the right to life guaranteed under article 21 of the
Indian Constitution also included the right to food.45 The petition requested the court to
intervene to prevent starvation deaths that were taking place despite surplus food stocks in
possession with the central and state governments. It further asked, ‘Does not the right to
food which has been upheld by the apex Court imply that the state has a duty to provide
food especially in situations of drought to people who are drought-affected and . . . not
in a position to purchase food?’46 Thus, the petitioners argued that the Government of
India had the duty to protect the right to food and that state and central governments
must be pressured to undertake urgent and adequate relief measures, in accordance with
the Famine Code. The civil society organizations also demanded the release of surplus
food grains that were stored in facilities managed by the Food Corporation of India
(FCI) and urged the government to address the deficiencies of social security programmes
such as the Public Distribution System (PDS). In subsequent correspondence with the
court, the organizations requested the court to ensure that regional (state) governments
throughout the country radically improve the functioning of social security schemes
43
Banik, D. (2016), ‘The Hungry Nation: Food Policy and Food Politics in India’, Food Ethics
1(1): 1–17.
44
Fredman, S. (2008), Human Rights Transformed: Positive Rights and Positive Duties, Oxford:
Oxford University Press, p. 124.
45
Writ Petition (civil) 196 of 2001, submitted in April 2001. The on-going case is currently
coordinated, on behalf of the petitioners, by the Human Rights Law Networ—an organization of
lawyers and social activists working to use the legal system to advance human rights.
46
5 ‘PUCL petitions Supreme Court on starvation deaths,’ PUCL Bulletin, July 2001, http://
www.pucl.org/reports/Rajasthan/2001/starvation_death.htm (Accessed: 10 September 2010).
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targeted at vulnerable and destitute groups, including impoverished women, children and
the aged. While the PIL was initially brought against the national government and the
FCI, the case (largely because of effective civil society activism) now applies to all state
governments in India and addresses not just hunger in general but also development issues
in general, including urban destitution, the right to work, transparency and accountability
in government, and the implementation of social security programmes.
Although the Supreme Court is yet to deliver a final judgment in the case, it has held
hearings at regular intervals since 2001 and issued numerous and detailed so-called ‘interim
orders’ (a feature common in PIL cases) that are considered applicable as law until the
case is closed. In its initial orders in the right to food case, the Supreme Court focused on
the methods of (and the government’s inadequate performance in) identifying below the
poverty line (or BPL) households that were the focus of social security programmes. Thus,
in August 2001, the court observed that its main concern was to ensure that ‘the poor, the
destitute, and the weaker sections of the society do not suffer from hunger and starvation’
and that ‘food must reach the hungry’.47 In November 2001, the court went much further
and issued a landmark judgement—on eight specific programmes or schemes with a food
component. Among its recommendations the court ordered; full implementation of the
PDS that offers subsidised food to poor households; converted a previously voluntary
programme (Mid-Day Meal Scheme, MDMS) to provide cooked meals at schools to
an obligation on the part of all states; an improved implementation of the Integrated
Child Development Services (ICDS), which provides assistance to pregnant and nursing
women and children, and other programmes aimed at helping impoverished families
whose primary breadwinner has died. In a single judgment and with this particular order,
the court converted the benefits of the eight programmes into legal entitlements and the
recipients could, in theory, claim benefits as a matter of right and seek judicial redress
if such rights were violated.48 The November 2001 order together with previous and
subsequent interim orders received widespread media attention and bolstered the resolve
of NGOs actively trying to improve food security in the country. The court orders were
particularly important as they not only very clearly specified the various reforms that were
needed to make social security programmes more effective, but also identified agents and
agencies at various levels of government with responsibility for compliance. And with
its long list of judgements spread across nine years, civil society activism has influenced
the Supreme Court to firmly established the right to food as a constituent aspect of the
right to life with a corresponding government obligation to protect the right to food of
its citizens.49
Judicial activism spurred on by civil society initiatives have been extremely useful,
and numerous improvements in the design and implementation of various anti-poverty
programmes have resulted from this landmark right to food case. However, the
political-administrative response to these judicial interventions has often been disap-
pointing. Indeed, governments at both national and regional levels have often ignored
47
Interim order, Supreme Court, 20 August 2001.
48
Right to Food Campaign (2005), ‘Supreme Court Orders on the Right to Food: A Tool for
Action’, Available at: http://www.righttofoodindia.org/data/scordersprimer.doc p. 10.
49
Banik (n 43).
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court orders or selectively implemented them. Political leaders and administrators

have on occasion questioned the credibility of the empirical evidence, which formed
the basis for petitions filed by civil society actors in court. Moreover, politicians and
administrators have also sometimes questioned the impartiality of the court-appointed
investigating agencies. Herein lies a challenge for the LEP approach; the excessive
reliance on legal aspects, without corresponding focus on politics and power relations
can lead to sub-optimal results. A general conclusion therefore is that in order for
judicial interventions to have a major impact, the actions and recommendations of
the courts must be taken seriously by the political and administrative leadership.
There must be stricter sanctions for non-compliance. Various levels of governments
in India, as in many developing countries, are habitual violators of court orders; not
just the controversial ones but also orders concerning routine state offences relating
to the identification and targeting of vulnerable households. Follow-up actions by the
courts are limited as they neither have the capacity nor the power to directly enforce
their directives in practice. The courts typically do not intervene on their own unless
petitions are filed by concerned individuals, the media, or civil society organizations.
In the Indian case, the general impression is that after considerable initial attention in
the media, the right to food movement lost steam. However, civil society organizations
were able to influence the Government to bring the problem of growing national food
insecurity back into India’s political discourse. In 2013, the Government tabled a bill in
Parliament that subsequently resulted in adoption of a landmark piece of legislation:
The National Food Security Act.50
Domingo and O’Neill51 correctly observe that, ‘As with institutional reform more
generally, the processes of change associated with legal empowerment are deeply political
and efforts to support it must include work with locally driven processes of institutional
innovation, and awareness of opportunity structures and constraints.’
CONCLUDING REMARKS
It is now commonly accepted that the rule of law is not only a set of actions that do not
require much justification, but also that they are preferable than the rule of men or the
rule of force.52 This consensus builds on three core features—‘norms (preferred practices);
ideas (arguments and reasons to support such norms); and rhetoric (discussion of the
settled character of such practices)’.53
The rule of law is thus often understood to be a broad concept and the ‘lack of fixed
meaning may actually make the term attractive’.54 This also appears to be the case with
50
Ibid.
51
Domingo, P. and O’Neill, T. (2014), ‘The Politics of Legal Empowerment: Legal Mobilisation
Strategies and Implications for Development’, Report #9008, Overseas Development Institute,
https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/9008.pdf. p. 11.
52
May, C. (2014), The Rule of Law: The Common Sense of Global Politics, Cheltenham:
Edward Elgar.
53
Ibid., p. x.
54
Ibid., p. xiii.
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the LEP approach, which may be perceived as less political or even non-confrontational
in comparison to human rights and other discourses that emphasize actively combating
persistent inequalities of various types.
The discussion above shows that an over-reliance on LEP is inadequate in tackling
difficult questions of inequality, discrimination, and poverty. The LEP approach can
certainly play an important part in global efforts to reduce and eliminate poverty, but
such initiatives must coordinate with (and not least be integrated with) other social,
economic, and political strategies. Although development agencies have increasingly
highlighted the importance of the term ‘empowerment’ in poverty reduction dis-
courses, they have often been ‘vague over meaning, and may be using the term partly
to advance their own organisational interests’.55 Thus, the term empowerment often
implies ‘more political confrontation than international organisations are able to cope
with’.56 Furthermore, the promotion of empowerment inevitable involves addressing
questions of discrimination and power imbalances in society. As Alsop, et al.57 observe,
‘As a relational concept, empowerment often means redressing imbalances of power
between those who have it and those whom do not’. Moreover, ‘actions to empower
certain groups or individuals can meet with resistance’ and ‘Efforts to empower may be
undermined at all levels’.58
In comparison to the human rights-based approach to development (HRBA) or
strategies that highlight the role of good governance and democratization as a way out
of poverty, the LEP approach does indeed enjoy a major advantage; while human rights
and democracy are politically sensitive in many contexts, the vagueness of the term legal
empowerment appears more palatable to some leaders. Thus, it is plausible to assume
that LEP would be more acceptable in authoritarian systems than approaches that
specifically associate development with so-called ‘Western’ understandings of human
rights. Although legal mobilization can improve the livelihoods of people living in
poverty in the short term, it requires political commitment and broad-based support to
advance the long-term realisation of rights that are often thwarted by powerful interest
groups. As Domingo and O’Neill very aptly observe: ‘The outcomes of legal empower-
ment of the poor are not politically neutral and need to be understood within broader
social and political environments’. This requires efficient ‘coordination between justice,
sector and governance interventions’, aimed at maximising ‘the development and social
impact of international support for legal empowerment’.59 While developing countries
and their leaders at all levels must play an important role in translating the rhetoric into
reality, they cannot do so without the backing of multilateral institutions. Moreover,
rich countries in their roles as providers of development assistance must accept a sense
of responsibility for operationalization of the LEP agenda and integrating it with other
approaches already being implemented. Thus far, the tendency has generally been to
55
Moore, M. (2001), ‘Empowerment at Last?’ Journal of International Development 13(3):
321–9.
56
Ibid.
57
Alsop, R., Bertelsen, M. and Holland, J. (2006), Empowerment in Practice: From Analysis
to Implementation, Washington DC: The World Bank, p. 8.
58
Ibid.
59
Domingo and O’Neill (n 51), p. 1.
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support judicial and other institutional reforms, without addressing the more funda-
mental (and politically far more sensitive) issues of power imbalances in society and the
fight against the discrimination of marginalised groups. Without this explicit focus on
power and politics, approaches such as the LEP will not be able to achieve sustained
poverty reduction.
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26. The rule of law as a marketing tool: The
International Criminal Court and the branding of
global justice
Christine Schwöbel-Patel*
In an interview with the US magazine Foreign Affairs in late 2016, Fatou Bensouda, Chief
Prosecutor of the International Criminal Court (ICC), commented: ‘I really welcome the
statements from some African leaders saying they’re renewing their commitment to the
ICC. It demonstrates that there are still many countries on the continent that are com-
mitted to the rule of law.’ When asked whether the estimated US$1 billion expenditure
of the Court to date made it expensive and potentially inefficient, Bensouda responded
by saying: ‘When investing in justice, nothing is too expensive.’1 This chapter considers
the relationship between these two comments, unpacking the use of the rule of law as a
marketing tool in the global justice sector. With this, it invites an understanding of the
rule of law not as an ‘ideal of our political morality’,2 but rather as a branding concept
which has been appropriated for the sake of market rationale, i.e. for the purpose of
gaining a material advantage over the competition in a sector which struggles with scarce
resources. This view places the rule of law firmly within the neoliberal parameters which
extend market logic beyond the realm of the strictly economic into all social relationships,
including the law.3
The ICC provides an interesting case study for the employment of a marketized global
justice idea because its key actors spend large amounts of time and energy on promot-
ing and controlling its brand; disproportionately, it appears, to efforts of ensuring that
justice is done in the courtroom. I argue that the track record of the ICC’s work shows
some similarity with the practices of global superbrands which prioritize image over
substance – practices exposed compellingly in Naomi Klein’s book No Logo.4 In No Logo
Klein explains how during the 1990s a marketing trend consolidated, spearheaded by
multinational companies such as Starbucks and Nike: Successful corporations primarily
* Many thanks to Robert Knox and Padraig McAuliffe for helpful comments on an earlier
draft. All websites were last accessed on 14 September 2017.
1
‘The International Criminal Court on Trial. A Conversation with Fatou Bensouda’ (Foreign
Affairs, January/February 2017) <https://www.foreignaffairs.com/interviews/2016-12-12/internatio
nal-criminal-court-trial>.
2
‘The Rule of Law’, (Stanford Encyclopedia of Philosophy, 22 June 2016) <https://plato.
stanford.edu/entries/rule-of-law/>.
3
‘[T]he generalization of the economic form of the market beyond monetary exchanges func-
tions in . . . neo-liberalism as a principle of intelligibility and a principle of decipherment of social
relationships and individual behaviour.’ Michel Foucault’s description of American neo-liberalism
as opposed to German ordo-liberalism. Michel Foucault, The Birth of Biopolitics. Lectures at the
Collège de France (Graham Burchell tr, Palgrave MacMillan 2010) 243.
4
Naomi Klein, No Logo (Fourth Estate 2000).
434
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The rule of law as a marketing tool 435
produced brands as opposed to products. Investigating in particular the garment industry,

where production was displaced to global South sweatshops, Klein set out how corpora-
tions had become hollowed out, leaving behind a marketing shell focused on image and
lifestyle branding.5 Since her initial study, she has traced the promises of other lifestyle
brands outside the manufacturing sector, including the brands of former US President
Barack Obama,6 and current President Donald Trump.7 These examples of the public
space being consumed by market rationale (Obama and Trump as a brand) while private
companies consume public spaces (Starbucks branding itself as a community hub) are
interesting for our investigation of global public service institutions such as the ICC.
Poignantly, Klein observed: ‘There is now no aspect of our lives that is not open to being
used in this kind of theatre of the brand.’8
The rule of law is one of the key characteristics which the ICC employs to build
its global justice brand. According to Bensouda again, ‘[t]he mission to entrench the
rule of law and attain normative global justice is a continuous journey that has seen
the emergence and increasing acceptance of international criminal law as pivotal and
indispensable in the fight against impunity’.9 The ICC presents itself as the agent of an
emergent international rule of law, seeking accountability regardless of political status,
and therefore ensuring equality before the law. The Court’s insistence that it is independ-
ent of the United Nations furthermore underscores the message that it can overcome the
power-politics enshrined in Realpolitik and therefore the limitations of the principle of
state sovereignty. Antonio Cassesse, advocate and key figure in the creation of the ICC,
emphasized this sharp dichotomy by saying: ‘either one supports the rule of law, or one
supports state sovereignty. The two are not . . . compatible’.10
Much of the promotional work is undertaken by the ICC’s Public Affairs Unit. This
chapter, however, highlights in particular the marketing work of a more unusual branding
agent, namely the Court’s chief prosecutor. Magazine interviews, such as that in Foreign
Affairs, press releases, photo ops, promotional videos, cameos in documentaries are all
used as opportunities to shape the global justice brand. Of particular interest is a speech
made to the Assembly of States Parties (ASP) in November 2016, the plenary organ of the
ICC.11 The speech is significant as it was made just a few weeks after three unprecedented
declarations of withdrawal from the ICC hit the headlines, seemingly hurting the brand
substantially.
5
Ibid., 3.
6
Naomi Klein, No Logo (10th Anniversary edn Fourth Estate 2010).
7
Naomi Klein, No is Not Enough. Defeating the New Shock Politics (Allen Lane 2017).
8
Interview with Naomi Klein in No Logo: Brands, Globalization and Resistance, (2003) Media
Education Foundation, Challenging Media. (Kelly Garner, producer and editor) Transcipt avail-
able at: <http://www.mediaed.org/transcripts/No-Logo-Transcript.pdf>.
9
Fatou Bensouda, ‘A Tribute to Adam Dieng’ in Charles Riziki Majinge (ed.), Rule of Law
Through Human and International Criminal Justice. Essays in Honour of Adam Dieng (CUP 2015)
48.
10
Quote in Bruce Broomhall, International Justice & the International Criminal Court: Between
Sovereignty and the Rule of Law (OUP 2003) 56.
11
Address at the Plenary, 15th Session of the Assembly of States Parties, 16 November
2016 [emphasis in original]. Available at <https://www.icc-cpi.int/iccdocs/otp/161116-Proscutor’s-
remarks-at-the-Opening-of-the-15th-Session-of-the-ASP.pdf>.
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This study is critical of global justice marketing practices. Exposing market rationale in
international institutions such as the ICC makes visible the elements of neoliberal logic in
liberal-legal humanitarianism; it also raises issues around the problematic marketization
(and commodification) of the suffering of victims of conflict. In short, understanding
the ICC as an institution which employs marketing practices similar to those of corpora-
tions sheds light both on the political economy of the rule of law as well as the political
economy of legal humanitarianism.
Questions of political economy and the ICC, which concern issues of decision-
making and material distribution (who systematically benefits and loses), also help us
to understand the recent discontent voiced against the ICC. In relying on the symbolic
strength of the rule of law as a means to brand itself, the ICC has seemingly misjudged
its audience and its constituency. By using simplified – more marketable – messages of
good and evil, of victims and perpetrators, and of peace and justice, the ICC has been
primarily appealing to a Western donor community;12 a donor community which often
calls itself the ‘international community’. It does not seem overstated to say that the
ICC has consequently (unwittingly) presented itself as an imperialist and interventionist
institution.
Granted, there are strong structural biases which sway the interests of the Court
towards the major military and economic powers; the interventionists.13 Global systemic
forces favour the interests of former colonial powers and those who retain a grip on the
world’s resources through exploitative endeavours. The threat of withdrawals from the
ICC of former African allies – what Bensouda is responding to in her Foreign Affairs
interview – is therefore a symptom of the marketization of global justice. However,
rather than resisting these structural inequalities, the ICC has, on the contrary, embraced
marketing practices, has courted the strong economic and military powers which, in turn,
has entrenched the idea that global justice is marketable. And despite its critics, the ICC
has been relatively successful in its marketing strategy. Indeed, the international rule of
law has been described as ‘coincident with international criminal justice’14 and the ICC is
generally regarded at the very least as an ‘embryonic’ global justice system.15
At a time when there is a rise of national populism and a concern for the excesses of
executive power, the expressive possibilities attached to the rule of law should be consid-
ered seriously. The attraction of a principle which promises to keep a check on power
through law is undeniable. Appealing to the rule of law, domestic or international, is an
effective means to draw attention to excesses in governance. This chapter is an analysis of
this expressive value and a cautionary note for viewing such expressions as an articulation
of the neutrality of law. The contemporary employment of narratives of the rule of law
12
Sara Kendall, ‘Commodifying Global Justice: Economies of Accountability at the Inter
national Criminal Court’ (2015) 13 (1) Journal of International Criminal Justice 113–34.
13
Argued excellently in Tor Krever, ‘International Criminal Law: An Ideology Critique’ (2013)
26(3) Leiden Journal of International Law 701–23.
14
Ruti Teitel, ‘Humanity’s Law: Rule of Law for the New Global Politics’ (2001) 35 Cornell
International Law Journal 355, 368.
15
Phillippe Sands, ‘Seventy years after Nuremberg, global justice is still a work in progress’, The
Guardian (20 November 2015) available at <https://www.theguardian.com/commentisfree/2015/
nov/20/nuremberg-trials-global-justice-law>.
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is exposed as a potent vehicle for neoliberal policies, particularly when applied to the
international sphere. Instead of being a technique for speaking reason to power, a differ-
ent reading of the rule of law is suggested, namely as a technique to refine the reputation
of those who invoke it and increase their visibility.
THE INTERNATIONAL CRIMINAL COURT
The International Criminal Court came into being with the successful end to a diplomatic
conference in Rome in 1998. The resulting treaty, negotiated between state delegates and
civil society organizations was named the Rome Statute. Only states are parties to the
statute, but the purpose of this body of law is to make individuals accountable, namely
those who have committed grave crimes.
The Court officially opened its doors in The Hague in 2002, when the sufficient number
of ratifications to the treaty was reached.16 When ratification by a 60th state brought
the ICC into existence, Kofi Annan, United Nations Secretary-General, described it
as ‘a giant step forward in the march towards universal human rights and the rule of
law’.17 After 15 years, it has more than doubled the number of member states to 123.18
Considering that the United Nations, the world’s largest intergovernmental organization,
has 193 member states, this is a more than respectable number. ‘2.4 billion people are
under the protection of the Rome Statute system of global justice against oppression and
repression by the powerful’, stated Bensouda in 2012.19 With a 2016 budget of €139.5
million and a brand new €200 million building, this is – on numbers alone – an institution
to be taken seriously.
However, when it comes to its success in trials, the ICC record is relatively dire. There
have been only four convictions.20 In its first case, that of Prosecutor v Lubanga, there
were repeated concerns over the Office of the Prosecutor withholding crucial evidence
from the defence, resulting in the Trial Chamber twice imposing a stay of proceedings.21
In the same case, the Chamber found all but one of the witnesses to be unreliable due to
concerns over witness coaching. Such a ‘comedy of errors’ did not bode well for this new
16
Ratification is the domestic process by which a legal willingness to be bound by a treaty is
determined, i.e. an Act of Parliament in the UK. In order for the Rome Statute to come into force
(and the ICC to become functional), 60 ratifications were required.
17
‘Secretary-General says Establishment of International Criminal Court is Major Step in
March towards Universal Human Rights, Rule of Law’, United Nations Press Release L/2890, 20
July 1998, http://www.un.org/press/en/1998/19980720.l2890.html.
18
As of May 2018.
19
Fatou Bensouda, ‘Reflections from the International Criminal Court Prosecutor’ (2012) 45
(2) Vanderbilt Journal of Transnational Law 955, 956.
20
Three individuals have been found guilty and one has been acquitted; see ICC web page.
https://www.icc-cpi.int/about.
21
See the ICC’s ‘Case Information Sheet, Situation in the Democratic Republic of the
Congo, The Prosecutor v Thomas Lubanga Dyilo’, ICC-01/04-01/06, October 2016 at https://www.
icc-cpi.int/drc/lubanga/Documents/LubangaEng.pdf. See also Christian M De Vos, ‘Case Note:
Prosecutor v Lubanga’, ‘Someone who comes between one Person and another: Lubanga, Local
Cooperation and the Right to a Fair Trial’ (2011) 12 (1) Melbourne Journal of International Law
217.
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court.22 Although it has issued arrest warrants for high-profile suspects, including Sudan’s
President Omar al-Bashir and rebel leader Joseph Kony, they remain at large. Moreover,
widely discussed investigations into the post-election violence in Kenya were dropped,
including an arrest warrant against Kenya’s President Uhuru Kenyatta. Indeed, since
all cases and situations at trial stage are against Africans, the Court has been repeatedly
described as ‘anti-African’. On the basis of a suspected neo-colonial bias of the Court,
there have been consistent demands and threats from states of the African Union to with-
draw from the Rome Statute altogether – threats which in late 2016 became a reality. South
Africa, Burundi, and The Gambia all declared their intention to withdraw from the Rome
Statute.23 Russia ceremoniously declared that it was ‘unsigning’ the Statute, followed by
a public statement by Philippines President Duterte declaring that he will follow suit. In
early 2017, a ‘mass withdrawal strategy’ of African Union member states was presented
at the African Union summit.24 Additionally, despite its continued rhetoric of acting on
behalf of the international community, some of the most powerful and populous states
are not party to the Rome Statute, notably three out of the five permanent members of
the UN Security Council, the US, China, and Russia.25 India, the world’s second most
populous country, is also a non-signatory.
THE GLOBAL JUSTICE SECTOR
With such shortcomings and opposition, the ICC is in need of strong communicative
channels. In its self-promotion it certainly cannot be accused of undue modesty. It
declares on its website that it investigates and, where warranted, tries individuals charged
with the gravest crimes of concern to the international community.26 The President of
the ICC stated boldly in 2016 that the Court ‘has become an integral part of the inter-
national system for promoting the rule of law, human rights, peace and security’.27 The
Chief Prosecutor, though, is one of the most prominent promoters of the Court. At the
Assembly of States Parties in the same year, Fatou Bensouda gave a rousing speech in
which she spoke on behalf of the Court to express her gratitude for attendance – and to
massage the egos of the attendees:
22
Niamh Hayes, ‘Sisyphus Wept: Prosecuting Sexual Violence at the International Criminal
Court’ in William A. Schabas, Yvonne McDermott, Niamh Hayes (eds), The Ashgate Research
Companion to International Criminal Law: Critical Perspectives (Ashgate 2013) 7–44.
23
In mid-February 2017, The Gambia, under a new leader, rescinded its decision to leave the
ICC. South Africa has withdrawn its withdrawal.
24
Despite being dubbed a ‘mass withdrawal’, the latest document can more accurately be read
as a reform proposal for the ICC. African Union Withdrawal Strategy Document, available at:
https://www.hrw.org/sites/default/files/supporting_resources/icc_withdrawal_strategy_jan._2017.
pdf.
25
The US famously ‘unsigned’ the Rome Statute in 2002 under President George Bush. Russia
‘unsigned’ the Rome Statute in November 2016. China has always been a non-signatory.
26
See the ICC website at: https://www.icc-cpi.int/about (emphasis added).
27
Judge Silvia Fernández de Gurmendi, ‘International Criminal Court Today: Challenges and
Opportunities’ 9 June 2016, Helsinki, available at: https://www.icc-cpi.int/itemsDocuments/1600609-
Helsinki-keynote-speech-ICC-President-Fernandez.pdf.
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It means a great deal to the Court, including myself, as it demonstrates your principled and
genuine commitment to the fight against impunity for atrocity crimes, and the international rule
of law more generally [. . .].’28
As in the Foreign Affairs interview, Bensouda is equating loyalty with the ICC as a
commitment to the rule of law. In light of the growing criticism, described by former
Deputy Secretary General of the United Nations as a PR disaster,29 the Chief Prosecutor’s
words can be read as an appeal to ‘brand loyalty’, i.e. the appeal to a continued belief in
the value of the brand rather than contemplation of alternatives within a competitive
global justice sector.
What then is the global justice sector? The global justice sector is to be understood as
made up of actors who invoke global justice for legitimacy and expansion. Global justice
actors are motivated by market concerns, perpetually seeking new markets for their brand.
Such market thinking is symptomatic of a colonization of market rationale of previously
non-market sectors. This spilling over of market rationale beyond outright economic
relations and the concomitant narrowing of the public sphere is typical of the political
project known as neoliberalism. One of neoliberalism’s key features is the logic of the
market transcending the market and becoming ‘incorporated into the common sense way
many of us interpret, live in, and understand the world’.30 The market consequently has
the power to order and formalise both the state and society.31 In a competitive market,
resources are mostly allocated to those who have the highest visibility.32 Branding as a
marketing practice which enhances visibility plays a pivotal role within a competitive
market.
The ICC is only one among several actors who claim to be fighting for global justice.
Competing (liberal) global justice ideas, governmental and non-governmental, include
truth and reconciliation projects, transitional justice programmes, peace-building pro-
grammes, and other alternative justice mechanisms. Indications of an awareness of being
situated in a competitive market are evident in statements which claim legitimacy of the
ICC on the basis of a cost-benefit analysis: ‘When investing in justice, nothing is too
expensive’.33 Saving millions of victims’ lives is, also according to Bensouda, the ‘return
on the investment for what others may today consider to be a huge cost for justice’.34 The
mobilization of victims for marketing purposes is a particular feature of the ICC, and one
of its most problematic practices. Indications of attempts by the ICC to claim the global
justice sector in order to squeeze out the competition are presented by references to ‘a
28
Bensouda, ASP 2016 (note 11).
29
Lord Mark Malloch-Brown said in early 2017 that the ICC has ‘got itself on the wrong side
of a PR and political campaign in Africa’ https://www.ft.com/content/204df924-32cd-11e6-bda0
-04585c31b153.
30
David Harvey, A Brief History of Neoliberalism (OUP 2005) 3.
31
Foucault (note 3) 117.
32
For a teasing out of spectacle and International Criminal Law, see Christine Schwöbel-Patel,
‘Spectacle in International Criminal Law: The Fundraising Image of Victimhood’ (2016) 4(2)
London Review of International Law 247–74.
33
Foreign Affairs (note 1).
34
‘New ICC Prosecutor Vows to Focus on Victims’ (IRIN, 30 July 2014) <http://www.irinnews.
org/news/2012/07/30/new-icc-prosecutor-vows-focus-victims>.
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global justice system’.35 Sarah Nouwen and Wouter Werner have described such efforts as
international criminal law’s ‘monopolization’ of global justice and have expressed concern
over its impact on alternative justice mechanisms.36
One might interject that the way in which one talks about global justice has no necessary
bearing on how one does global justice. In other words, why would victims of international
crime be treated as business metrics because they have been described as such? However, it
stands to reason that the world is in part constituted by the words we use. Wittgenstein’s
famous quote that ‘words are deeds’ imposes itself.37 Words are constituents of the world
in which we live: ‘Concepts colonize our minds and we become used to thinking about
ourselves and our world in their terms; our actions are only identifiable as this action
rather than that action in terms of the language in which we describe them.’38 If justice is
something one can invest in in order to gain a return, as the current Chief Prosecutor of
the International Criminal Court has stated on numerous occasions, this should be viewed
as a certain constitutive pattern. The constitution and reconstitution of this market
indicates not only an ideational fight; it is also a material fight.
In the private sector, growth is an ingrained value and expansionism (market share
growth) is generally the aim. The fight for resources in the global justice sector is
particularly harsh given the scarcity of resources in the non-profit sector.39 Despite the
difficulty of quantifying profits in the non-profit sector, ICC expansionism tends to be
expressed in quantifiable terms, for example in terms of member states signed up to the
Rome Statute. In her speech at the 2016 ASP, Bensouda expressed expansionist intentions
of the Court by stating: ‘In order to address [the most serious] crimes and deliver justice
to the victims across the world, it is essential that States’ participation in the Rome Statute
is not only maintained and reinforced, but enlarged.’40 There is a distinct materialist
perspective on this call for enlargement. Just as capital is perpetually sent in search of new
markets in a capitalist system, so is arguably International Criminal Law.41 Apart from
a geographical quality, expansionism in the global justice sector is also normative. With
the ‘crime against humanity’, the ICC has seemingly created the ultimate expansionist
norm. Under the Rome Statute, there are only four core crimes: genocide; war crimes; the
crime of aggression (the jurisdictional parameters of which are still unclear); and crimes
35
Judge Sang-Hyun Song, ‘Statement from the President: International Criminal Justice Day’,
15 July 2013, <https://www.icc-cpi.int/iccdocs/presidency/ICJ-Day-ICC-President-Statement-Eng.
pdf>. International Criminal Justice Day marks the 17 July 1998 adoption of the Rome Statute
which constituted the International Criminal Court.
36
Sarah Nouwen and Wouter Werner, ‘Monopolizing Global Justice: International Criminal
Law as Challenge to Human Diversity’ (2015) 13 (1) International Journal of Criminal Justice
157–76.
37
Ludwig Wittgenstein, Culture and Value (Peter Winch tr, University of Chicago Press 1980).
38
Stefan Collini, Speaking of Universities (Verso 2017).
39
Indeed, the question of profit within the non-profit sector expresses itself more indirectly,
but no less urgently. The competition for investment is rationalised as in other ways profitable,
often by equating post-conflict individual accountability and peace with a secure environment for
foreign direct investment.
40
41
For a deeper analysis of this analogy see Christine Schwöbel, The Market and Marketing
Culture of International Criminal Law’ in Christine Schwöbel (ed.), Critical Approaches to
International Criminal Law (Routledge 2014) 264–80.
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against humanity. This latter crime is proving to be a catch-all crime, seemingly capable
of swallowing a whole host of crimes.42 Originally understood as a crime directed towards
physical violence, it has recently been interpreted by the Office of the Prosecutor as
including non-physical violence in the form of environmental crimes and land grabs. In
September 2016, Bensouda published a policy paper which stated its new priorities for
case selection, namely a ‘particular consideration to prosecuting Rome Statute crimes that
are committed by means of, or that result in, inter alia, the destruction of the environment,
the illegal exploitation of natural resources or the illegal dispossession of land’.43 In addi-
tion, expansionism is evidenced in the ICC’s indisputable prime position in the knowledge
production of mass atrocity.
Overall, the ICC has been more successful in attracting public and media attention
and funding than its competitors in the global justice sector. To be sure, what has not
been decisive for this success is outcomes – the ICC neither has a good track record for
achieving peace, nor of achieving justice. The following section examines how the ICC
has managed to garner attention and funds absent of the more typical legal successes of
prosecutions and deterrence.
THE INTERNATIONAL RULE OF LAW AND THE ICC
In its self-understanding, as well as its publicity, the ICC has both a narrow aim, the aim
of fighting impunity, and a wider aim, the aim of establishing and promoting the interna-
tional rule of law.44 The view projected by the Court is that there is a causal relationship
between the two, with the fight against impunity contributing to the international rule
of law.45
The choice of the international rule of law as a distinguishing characteristic is inter-
esting. As regards the appeal of the rule of law, one might simply refer to what Brian
Tamanaha has described as the ‘apparent unanimity’ in support of the rule of law and
the fact that it is singular in its ‘global endorsement’.46 And yet, despite unanimity as
to its support, much of the literature on the rule of law begins with the attempt of a
categorical definition based on a soul-searching on what the rule of law actually is. In the
face of such uncertainty, why, one might ask, should the rule of law be so effective in its
rhetorical appeal?
We begin with considering the ‘rule of law’ without its added ‘global’ or ‘international’
prefix: On the domestic level, the rule of law is mostly referred to as a tool to put a check
on power. Here, the Rule of Law is often capitalized.47 F. A. Hayek’s definition of the rule
42
Ibid., 267.
43
Office of the Prosecutor Policy Paper on Case Selection and Prioritisation, 15 September
2016, https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf.
44
Sang Hyun Song, ‘The Role of the International Criminal Court in Ending Impunity and
Establishing the Rule of Law’, (2012) 49 (4) UN Chronicle.
45
Ibid.
46
Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (CUP 2004) 3.
47
E.g. Helen Fenwick and Gavin Phillipson, Text, Cases & Materials on Public Law & Human
Rights (2nd edn, Cavendish Publishing 2008).
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of law as being ‘that government in all its actions is bound by rules fixed and announced
beforehand’ is often referenced by legal positivists.48 From a perspective which takes
political economy seriously, it is paramount to note that this definition was formulated
by someone most famous for his defence of classical liberalism, a political ideology which
foregrounds the protection of private property and is critical of the welfare state interfering
in a free market.49 Classical liberalism is widely thought to be the intellectual origins of
neoliberalism. However, not only on the Right is there admiration for the rule of law. On
the Left too, the rule of law has been described as an ‘unqualified good.’50 Despite disagree-
ment, the most common assumption about the rule of law is that it means that people are
ruled by rules: ‘Government by law and not by men’ is a phrase commonly used.
On the international or global level, the rule of law is similarly elusive, if not even more
so.51 Given the lack of a global government, in the sense of a centralized government with
executive decision-making powers, this is unsurprising. The rule of law, in its relationship
to the international, takes on different guises depending on who is invoking it. Mostly,
however, it takes on significance in a post-conflict or post-authoritarian context where it is
appealed to as a remedy for societal breakdown. Here the international rule of law can be
a solution to the lack of a domestic rule of law. As in the domestic sphere, the rule of law
is a nebulous concept, but one which is generally regarded as ‘good’. Echoing Tamanaha,
Padraig McAuliffe describes the rule of law in the post-conflict context as having a ‘his-
torically unparalleled near-unanimity of endorsement’.52 Unanimity has been followed by
ubiquity. In a much-cited article on the rule of law and intervention, Thomas Carothers
observed that ‘Western policymakers and commentators have seized on the rule of law as an
elixir for countries in transition.’53 Once a ‘venerable part of Western political philosophy’,
the rule of law ‘is suddenly everywhere’.54 Martin Krygier, a strong advocate of the rule
of law, described the ubiquity of the rule of law as ‘an unavoidable cliché of international
organizations of every kind’.55 Indeed, for the purposes of our interests of the marketiza-
tion of the rule of law, Krygier’s comments on the value of the rule of law are pertinent: ‘If
I’d known the stocks of the rule of law would soar as they have, I would have printed money,
instead of mere words, to invest in it. But I had no inkling I was talking up a goldmine.’56
48
F. A. Hayek, The Road to Serfdom (London 1944) 54. Joseph Raz refers to Hayek’s definition
as ‘one of the clearest and most powerful formulations of the ideal of the rule of law’ (although he
does not support all of Hayek’s conclusions) in Joseph Raz, ‘The Rule of Law and its Virtue’ in The
Authority of Law: Essays on Law and Morality (Clarendon Press 1979).
49
E.g. F. A. Hayek, Individualism, and Economic Order (University of Chicago Press 1958).
50
E. P. Thompson, Whigs and Hunters (1975) 266.
51
This is to be understood as the sphere which is regulated by international law. It is worth
pointing this out at this juncture, given that legal philosophers and theorists often perceive their
understandings of the rule of law to also be global or universal, albeit not strictly attached to the
international legal sphere.
52
Padraig McAuliffe, Transitional Justice and Rule of Law Reconstruction. A Contentious
Relationship (Routledge 2013) 42.
53
Thomas Carothers, ‘The Rule of Law Revival’ (1998) 77 Foreign Affairs 95, 99.
54
Ibid.
55
Martin Krygier, ‘The Rule of Law: Pasts, Presents, and a possible Future’ (2016) 12 Annual
Review of Law and Social Science 199–229.
56
Krygier, talk which led to the publication of the previous citation, available at: https://www.
law.berkeley.edu/wp-content/uploads/2015/04/Krygier-Rule-of-Law.pdf.
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The most common definition for the ‘international rule of law’ is in the 2004 report of
the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-
Conflict Societies. The report states that the international rule of law is:
A principle of governance in which all persons, institutions, entities, public and private, including
the State itself, are accountable to laws that are publicly promulgated, equally enforced, and
independently adjudicated, and which are consistent with international human rights norms and
standards. It requires, as well, measures to ensure adherence to the principles of supremacy of
law, equality before the law, accountability to the law, fairness in the application of the law, sepa-
ration of powers, participation in decision-making, legal certainty, avoidance of arbitrariness
and procedural and legal transparency.57
As with the domestic sphere, this boils down to the rule of law and not rule by an
individual. The appeal of the principle to the ICC is apparent: the ICC is an institution set
up to address atrocities committed by individuals; an institution which fights the impunity
of those most responsible for grave crimes. Indeed, the liberal view interprets the univer-
salization of the rule of law as demanding the realization of criminal responsibility in the
international as in the domestic sphere.58 After a United Nations High-Level Meeting on
the Rule of Law, the President of the Court reported proudly that ‘numerous delegates
spoke about the importance of the International Criminal Court’.59
Although invoking the rule of law, the ICC does not define the concept, and this seems
to have worked to the ICC’s advantage. Indeed, Simon Chesterman has observed that
‘the high degree of consensus on the virtues of the rule of law is possible only because of
dissensus as to its meaning’.60 Hence, the nebulous nature of the features of the rule of
law, and its general association of it being ‘a good thing’, appear to play out in favour of
the ICC. The rule of law is powerful on the basis of its rhetorical currency. This rhetorical
force may, from a marketing perspective, also be described as its utility as a branding
tool. As it turns out, the rule of law is a particularly apt branding tool; it is elusive in
terminology and it structurally enables neoliberal principles to take hold while meanwhile
appearing non-ideological.
THE INTERNATIONAL RULE OF LAW AND NEOLIBERALISM
The ideological significance of the rule of law lies in the ability of its proponents to
obscure its economic potency and its pliability for political ends. The relevance of the
political economy of the rule of law comes most clearly to the fore through the study of
the link between law and private property.61 An emphasis on private property is, in the
57
2004 report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict
and Post-Conflict Societies, S/2004/616 (23 August 2004) para. 6.
58
Martti Koskenniemi, ‘Between Impunity and Show Trials’ (2002) 6 Max Planck Yearbook of
United Nations Law 2.
59
Song (note 35).
60
Simon Chesterman, ‘An International Rule of Law?’ (2008) 56 (2) American Journal of
Comparative Law 331.
61
David Trubek has suggested that the rule of law debate is the successor of the law and
development debate, and therefore posits the question of the political economy of the rule of law
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liberal tradition, thought to be key for human freedom and progress, with the rule of law
acting as its guarantor.
When it comes to post-conflict societies, the establishing or guaranteeing of private
property rights is often prioritized as a means to enhance economic performance (under
the label of ‘development’). The rule of law is mostly introduced through new formal
institutions which emphasize equality before the law while furthering economic liberaliza-
tion in the form of opening domestic markets to trade. The rule of law as the embodiment
and structuring of formal equality ‘abstracts legal subjects from their historical and
political contexts of substantive inequality and frames social relations through the lens of
atomised equals’.62 In these emergent neoliberal societies, the role of the state is generally
reduced (and yet strengthened) to protecting private property and the market. The newly
established institutions and norms place private property as a global good to be protected
and promoted by law. The legitimacy of this is often based on the assumed neutrality (and
therefore non-ideological nature) of the market. Carothers has noted that despite its close
ties with a political form and an economic form, the rule of law is generally viewed as a
neutral, non-ideological, even technical, solution.63 This is what Judith Shklar wanted to
draw attention to in regard to legalism as a standard of organization and an operative
ideal: ‘The court of law and the trial according to law are the social paradigms, the perfec-
tion, the very epitome, of legalistic morality.’64 Legalism is expressed in the idea of the rule
of law in the way law is deemed to be the organizing and correcting influence on excesses
of power. What this obscures is the contingency of this proposition as well as biases
expressed in it, biases which lawyers in particular have an interest in presenting as natural.
The notion of the rule of law not only has stakeholders who promote it as an ideal, it
also is an ideal attached to the Western world. After all, legalism’s ‘most nearly complete
expression is in the great legal systems of the European world’.65 In the foregrounding
of the rule of law as restraining power politics, the principle is portrayed as neutral and
non-political. This not only obscures its economic relevance and propensity to the market,
it actively depoliticizes it.66 The invocation of the rule of law is, indeed considered to be,
‘the common-sense approach to global politics’.67
It has become a matter of course for critics of ICL to point out the ways in which
the ICC disavowals its political work and has promulgated the idea of law overcoming
politics. ‘I apply the law without political consideration’, stated the first Prosecutor in
as the relationship between the rule of law and economic development. David M. Trubek, ‘The
Political Economy of the Rule of Law: The Challenge of the New Development State’ (2009) 1 (1)
Hague Journal on the Rule of Law 28.
62
‘Introduction’ in Honor Brabazon (ed.), Neoliberal Legality: Understanding the Role of Law
in the Neoliberal Project (Routledge 2017).
63
Carothers (note 54).
64
Judith Shklar, Legalism: Law, Morals, and Political Trials (Harvard University Press, first
published 1964); see also Krever (note 13).
65
Shklar, ibid.
66
As Richard L. Abel remarked: ‘the belief that capitalism guarantees “equal justice under
law” is profoundly ideological’ in ‘Capitalism and the Rule of Law: Precondition or Contradiction?’
Law and Social Inquiry 686.
67
Christopher May, The Rule of Law. The Common Sense of Global Politics (Edward Elgar
2014).
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an address in 2010.68 ‘The court also does not interfere in the political affairs of any
country’, reaffirmed the current Prosecutor in an interview.69 This type of understanding
of the law as pure and neutral in contrast to politics which is tainted and biased, builds
a picture of politics being external to law.70 McAuliffe has observed that the promotion
of the rule of law is so appealing in post-conflict or post-authoritarian societies because
law is often seen as having been ‘suspended, abused or incapable’ in these situations.71
Law was suspended through politics, but it can be reintroduced through rule of law
institutions. What is left out of this narrative is the way in which law has an enabling
power for authoritarianism and conflict; what is omitted are limitations in addressing
the root causes of conflict; what is obscured is law’s enabling power of both creating and
upholding structural inequalities. M. J. Horowitz has angrily noted that the rule of law,
by promoting procedural justice and emphasizing individual rights, ‘enables the shrewd,
the calculating, and the wealthy to manipulate its forms to their own advantage. And it
ratifies and legitimates an adversarial, competitive, and atomistic conception of human
relations’.72 Law, then, is not just separated from politics, it is also firmly placed outside
of the realm of questions of inequality in distribution.
In the globalizing world of the early 1990s, the aim of a transition of the former Soviet
states to functioning legal systems came hand in hand with economic liberalization. The
rule of law played a key rhetorical role in enabling its institutionalization; indeed, the new
protection of property rights in the Eastern bloc was underlined by notions of the rule
of law.73 The promotion of the rule of law was crucially accompanied by an opening of
markets to free trade mechanisms, claimed to be a mechanism leading to development.74
Since then, there have been various forms of opening up post-conflict societies to the
market under rule of law rhetoric.75 Among the most interventionist and least sensitive to
local justice customs has been the introduction of justice packages – a type of flat-pack of
legal experts and norms imposed on states as a means of peacebuilding and development,
promoted as rule of law measures.76 As a general rule, the exposure to the free market,
68
‘Keynote address Mr Luis Moreno-Ocampo, Prosecutor of the International Criminal
Court, Council on Foreign Relations’, Washington DC, 4 February 2010.
69
‘ICC’s Prosecutor Explains Court’s Position on Gambia’, 2 June 2016, Jollof Media Network,
https://jollofnews.com/2016/06/02/iccs-prosecutor-explains-courts-position-on-gambia/.
70
Sarah Nouwen and Wouter Werner, ‘Doing Justice to the Political: The International
Criminal Court in Uganda and Sudan’ (2009) 21 (4) European Journal of International Law 942.
71
McAuliffe (note 52) 42.
72
Morton Horowitz, ‘The Rule Of Law: An Unqualified Human Good?’ (1977) 86 Yale Law
Journal 591.
73
For an analysis, see for example Frank Emmert, ‘Rule of Law in Central and Eastern Europe’
(2008) 32(2) Fordham International Law Journal 551–86.
74
See for an analysis Sundhya Pahuja, Decolonising International Law: Development, Economic
Growth and the Politics of Universality (CUP 2011).
75
Including the form of disaster capitalism described in Naomi Klein’s Shock Doctrine
(Penguin 2008).
76
McAuliffe (note 52) 46, citing Panel on UN Peace Operations, Report of the Panel on United
Nations Peace Operations, UN Doc. A/55/305-S/2000/809, 21 August 2000, paras 81–83, which
refers to an ‘on-call list’ of civilian police, international judicial experts, penal experts, and human
rights specialists who should be available at short notice ‘to strengthen rule of law institutions’ in
post-conflict societies.
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guaranteed under the rule of law, is legitimized through a development rationale. The
UN webpage dedicated to ‘The United Nations and the Rule of Law’ draws an explicit
link between legal frameworks and development. It is stated that such frameworks are
important for ‘generating inclusive, sustainable and equitable development, economic
growth and employment, generating investment and facilitating entrepreneurship, and
in modernizing and harmonizing international trade law’.77 Economic liberalism and
the rule of law are seen to exist in a mutually beneficial relationship for the purposes of
development.
In this context it is interesting to note that the United Nations Development
Programme (UNDP) has been working closely with the ICC, marked by speeches at vari-
ous conferences including the Assembly of State Parties (to the ICC).78 The Prosecutor
draws this link when she speaks of security, stability, and law as a common aim: ‘We
must do all we can to ensure that security, stability, and the protective embrace of the
law become a reality to be relished by all, in all corners of the world.’79 As exemplified
above, the speeches of the Prosecutor are replete with notions of ‘investing’ and ‘returns’,
highlighting the perceived link between the rule of law and growth. Speaking to South
African law students in the offices of one of South Africa’s leading law firms in October
2016, Bensouda made the link between international criminal justice and development
explicit:
While war crime economies thrive, ultimately they create damage to infrastructure, economy
and attracting investment. Certainly criminal justice at national and international level can play
a role in Africa’s development and as an office we are also seeking to minimize the impact of
these activities to prevent more crimes.’80
The prospect of development and peace for former conflict-affected countries is

believed to lie in their openness to foreign direct investment – a key neoliberal strategy
for increasing competition and opening economies to the global market. No one made
the link between international criminal justice and neoliberalism quite so clear as then-
Prosecutor of the International Criminal Tribunal for the former Yugoslavia Carla del
Ponte in her famous speech at Goldman Sachs. Here she spoke of the ‘dividends’ of
international criminal justice; in particular stating that the ‘profits’ of ICL lie in its ability
to stabilize war-torn countries so that private actors can invest in the state.81
77
United Nations and the Rule of Law, https://www.un.org/ruleoflaw/thematic-areas/internatio
nal-law-courts-tribunals/.
78
In a keynote speech addressed to the ASP a UNDP official highlighted where the work of
the UNDP intersects with the objectives of the Rome Statute: ‘Good governance and the rule
of law are [. . .] critical for sustained human development’ Helen Clark, ‘Keynote Address to the
11th Session of the Assembly of States Parties to the International Criminal Court. “Human
Development and International Justice”’, 19 November 2012, <https://www.icc-cpi.int/itemsDocu
ments/PR855/ICCASP11_COMPKeynote_Remarks_HCENG.pdf>.
79
80
Rebecca Haynes, ‘Engaging Youth in International Justice’ Mail & Guardian (07 October
2017) https://mg.co.za/article/2016-10-17-engaging-youth-in-international-justice.
81
Carla Del Ponte, ‘The Dividends of International Criminal Justice’, Goldman Sachs, 6
October 2005. Available at <www.icty.org/x/file/Press/PR_attachments/cdp-goldmansachs-050610
-e.htm>.
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BRANDING AND THE RULE OF LAW
‘The rule of law’s recent rise from parochial and controversial political and legal ideal to
universal international slogan has given it a great boost in brand recognition’, observed
Krygier recently.82 The Prosecutor of the ICC is not only solidifying the link between
the rule of law and economic growth, or between international criminal justice and
economic liberalization, she is also ensuring that the ICC is associated as being a key
player in the global rule of law market place. In this, she is managing the brand of global
justice.
Branding is a marketing strategy most familiar from corporations and the private
sector. Branding concerns the ‘promise’ as well as ‘recognisability’ of a product or service.
The promise of a brand refers to its purported benefits. In branding circles, it is often
described as the ‘sizzle in the sausage’, whereby the product is the sausage and its sizzle is
the emotional appeal that makes a consumer choose one sausage over another. It is widely
accepted that it is the sizzle which is sold, not the sausage.83 Branding as a tool is used as a
means to attract consumers to the product in order to maintain or increase market shares.
Branding naturally takes on most of its power in a competitive market where (similar)
products and services are vying for attention.
Part of the practice of branding is to find characteristics or slogans which are
catchy and memorable forms of describing that which is to be sold. The ICC chooses
from a selection of legal slogans to describe itself. It invokes ‘humanity’, ‘international
justice’, ‘taking action against atrocious crimes’. The ICC attempts annually to
draw attention to its slogans on 17 July, International Criminal Justice Day, where it
attempts to get the hashtag #JusticeMatters into larger circulation. Advocates include
Kip Hale, former director of the American Bar Association’s International Criminal
Court project, who wrote in the Huffington Post: ‘This #17July, Invest in International
Criminal Justice Because #JusticeMatters.’84 But even the strongest values of global
society become trite and sour if they are not followed by action and instead are
condensed to Twitter hashtags. #JusticeMatters and #buildingsupport are among the
most common on the ICC’s social media pages. Granted, the ICC has yet to join the
#RuleofLaw bandwagon, but there is certainly an aspect to the rule of law which lends
itself to quite radical simplification,85 and makes it particularly suitable for branding
campaigns.
Successful brands furthermore all have a particular emotional appeal, and this
emotional feature is considered one of the key ways of creating differentiation among
brands.86 In her book No Logo, Klein explores the phenomenon of the transcendence
of the product through branding. Ultimately, transcendence leads to concepts rather
82
Krygier (note 55).
83
David Taylor, Brand Vision: How to Energize your Team to Drive Business Growth (Wiley &
Sons 2006).
84
Kip Hale, ‘This #17July, Invest in International Criminal Justice Because #JusticeMatters’
Huffington Post (17 July 2014) <http://www.huffingtonpost.com/kip-hale/invest-in-international-
criminal-justice_b_5590013.html>.
85
May (note 67).
86
Taylor (note 83) 101.
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than commodities being keys to success: ‘the brand as experience, as lifestyle’.87 The
rule of law, partly because it is resistant to stable definitions, is associated with a
concept, a feeling, a way of life; it is a concept of the good life. The rule of law not
only sounds regal and comforting, it also provides a sense of being ruled over by an all-
knowing, rational, universal good (the faith-based connotations are neither accidental
nor incidental). The rule of law asks for submission to it. In this it does not only carry
a promise of peace and justice within it, it also carries a threat of chaos and conflict,
should loyalty to it be questioned. ‘Without the rule of law, impunity reigns’, declared
the President of the ICC in 2012.88 Hayek famously argued in favour of economic
liberalism by claiming that state intervention in the economy, and therefore interven-
tion in the redistribution of wealth, inevitably leads to totalitarianism.89a Bensouda
warned in her ASP speech: ‘Without the ICC, we will regress into an even more
turbulent world where chaos, volatility and violence take the upper hand as inevitable
norms.’89b This echoes tones emphasizing the harshness of the competitive market. ‘In
the war for customers’ hearts, messaging leads the charge’, states a website handing out
branding advice.90 Often, the rule of law is associated with struggle. ‘The struggle for
the rule of law is our long-term project, and we are in it together’, said the President of
the International Criminal Court recently.91 Lofty promises and dark threats tap into
branding rules of simplification. A professional services marketing agency explains on
its website:
Persuasive brand messages are always brief and convey critical aspects of a firm’s brand. And
they often intentionally oversimplify concepts that, in reality, may be complex and nuanced.
This oversimplification is a good thing, however, because the goal of a brand is to be noticed,
remembered, and desired.92
Branding thrives in our contemporary attention economy: it assumes that consumers

have too many choices and too little time and that therefore a simple message is the most
effective. According to one of the most widely referenced books on branding, brands
‘were created to simplify our life by helping us navigate more quickly throughout purchase
decisions’.93 The image of an international court with a loose notion of a racialized
courtroom drama is an effective visual representation of the rule of law. The rule of
law’s amenability to simplification – its amenability to vague notions of the good life; its
apparent non-ideological nature – make it a perfect branding tool.
87
Klein, No Logo (note 4) 21.
88
Song (note 44).
89a
Nicola Smith, ‘Neoliberalism’, Encyclopaedia Britannica <https://www.britannica.com/top
ic/neoliberalism>.
89b
Bensouda (note 11).
90
Lee Frederiksen, ‘Elements of a Successful Brand 8: Messaging’, Hinge, 8 February 2016,
available at: https://hingemarketing.com/blog/story/elements-of-a-successful-brand-8-messaging.
91
Judge Silvia Fernández de Gurmendi, ‘Remarks at the opening session of the 9th Session of
the Consultative Assembly of Parliamentarians on the ICC and the Rule of Law & 38th Annual
Forum of Parliamentarians for Global Action’, Dakar, 9 December 2016 https://www.icc-cpi.int/
itemsDocuments/161209_stat_pres-dakar.pdf.
92
Frederiksen (note 90).
93
Taylor (note 83), 84.
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FROM CHIEF PROSECUTOR TO CHIEF BRAND MANAGER
The 2016 speech of Chief Prosecutor Fatou Bensouda at the ASP marked a sig-
nificant turning point for her role. In 2016, the ASP took place just weeks after the
announcement of withdrawals from the ICC. It therefore provided a key opportunity
for the Court to respond to recent events and to take control over the narrative
before its most important ‘stakeholders’. The ASP is the plenary body of the ICC,
providing, among other things, management oversight and making budgetary deci-
sions. It meets once a year and is attended by at least one representative from every
state member of the Court.94 Attendance of civil society members is largely regulated
by the Coalition of the International Criminal Court (CICC). The CICC is a cluster of
NGOs which formed in the 1990s for the purpose of promoting the establishment and
the work of the ICC. It acts as gate-keeper to the ASP through providing ‘accredita-
tion’. In 2016, around 400 civil society members attended the ASP. Civil society support
in times of crisis is crucial, not just in monetary terms. Bensouda’s speech was therefore
carefully worded to provide reassurance to the donors and supporters of the Court
within the context of a role which has increasingly become one of publicity for the
Court.
By comparing a set of skills and tasks required of a brand manager with the
Prosecutor’s speech, the similarities between the roles of Chief Prosecutor and Chief
Brandmanager become clearer.95 According to the job specification on recruit-
ment website Totaljobs, a brand manager’s tasks include monitoring market trends,
meeting with clients, and organizing events, photo shoots and launch parties.96 The
Prosecutor stated in her ASP speech that notwithstanding conflicts and atrocity crimes,
‘ours is in fact the age of rights consciousness where humanity no longer accepts that
victims of gross human rights violations suffer in silence or that their perpetrators
escape justice’. Observations on the ‘age in which we live’ are arguably observations
on market trends. In order to convince her listeners of the importance of her product
(the ICC), she must set out the demand for its key features (securing the international
rule of law).
Furthermore, the ASP, as a gathering of supporters and third-party donors, could
be described as an important client or board meeting (as Art. 112 of the Rome Statute
stipulates: the ASP provides management oversight).97 It is at the ASP where the budget
for the coming year is presented – a budget which must be approved. At the ASP in 2016,
the Prosecutor appealed to these ‘clients’ and ‘board members’:
to implement the mandate I’m entrusted with, as independent Prosecutor of the International
Criminal Court, I am bound seek your continued support for our budget request [sic]. . . We
have a joint obligation to ensure the Rome Statute is alive and well, and effective in practice. The
provision of requisite funding for the Court is key in this regard.
94
See the description of the ASP on the ICC website: https://www.icc-cpi.int/asp.
95
‘Brand manager job description’ <https://www.totaljobs.com/careers-advice/job-profile/mar
keting-advertising-pr-jobs/brand-manager-job-description>.
96
Ibid.
97
Sara Kendall has described the ASP as akin to a ‘trade exhibition’ (note 12).
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When it comes to promotional events, the previous Chief Prosecutor Luis Moreno-
Ocampo undoubtedly raised some eyebrows with his love of the limelight, never missing
an opportunity for a photo shoot, a meeting with a celebrity, a film cameo, or interviews
with news and lifestyle journals. Bensouda is perhaps not as celebrity-focused, but is
nevertheless often featured in newspapers, photo shoots and videos, defending and
promoting the ICC’s mission.
THE INTERNATIONAL COMMUNITY AS CONSUMERS OF

GLOBAL JUSTICE
The ASP speech and the parallels drawn with clients and board members suggests that the
audience of the ICC would be its member states and third-party donors. This may seem
odd considering that those who are supposed to benefit from addressing global injustices
would presumably be the victims of international crimes. After all, the Court has regularly
been justified on the basis of the victims’ needs for justice.98 Victims of international
crimes are invoked but not addressed, they are rhetorically mobilzed yet politically
immobilized. In order to understand this curious position of victims of conflict, we need
to first consider in more detail which audience is addressed. Mostly, the audience is the
‘international community’. The Preamble of the Rome Statute notably affirms that ‘the
most serious crimes of concern to the international community as a whole must not go
unpunished’.99
A self-understanding as being part of an ‘international community’ arguably comes
with the experience of privileges of globalization, with its opportunities for intercon-
nectedness, travel, electronic communication, and access to global media. This stands
in contrast to experiences of the disadvantages of globalization (or, if you prefer,
neoliberalism): of wage repression, exposure to the vagaries and exploitations of the
global market, economic and environmental displacement, and ever-growing inequality.
Those who experience the privileges of globalization are generally located in the global
North and the elite ranks of the global South. Those who suffer the disadvantages of
globalization are mainly located in the global South. Far from being concerned with
the idea of an ‘international community’, this majority world is concerned with more
immediate questions of survival. Interventionism through international law moves
along this North–South-divide, with the North being the place which intervenes and
‘dispenses justice’,100 while the global South is on the receiving end of interventions
and justice.
The visual self-representation of the ICC becomes pertinent in the constitution and
re-constitution of this international community. There is, what I have called elsewhere, an
‘aesthetics of contrast’ in its imagery: Victims are generally portrayed as black women and
children ‘in the field’ and the courtroom is shown in contrast as clean, high-tech spaces,
98
See instructively on this Sara Kendall and Sarah Nouwen ‘Representational Practices at the
International Criminal Court’ (2014) 76 Law and Contemporary Problems 235.
99
Preamble, Rome Statute of the International Criminal Court.
100
Tor Krever, ‘Dispensing Global Justice’ (2014) 85 New Left Review 67–97.
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in ‘neutral’ colours and design.101 The ICC presents itself as an institution which fights
‘warlords’ and protects victims. It presents this narrative as one between the inhumane,
non-white male perpetrator, the vulnerable, weak, and non-white victim, and the rational,
assisting, mostly white, legal representative. This narrative is created in the courtroom, in
which the legal representative is at home and the perpetrator and victims are alien; it is
created outside the courtroom in video clips, photographs, and documentary films. These
are simplified messages about conflict and intervention, victims and perpetrators, lack
of knowledge and expertise, with the global South as a place of conflict, and the global
North as a place of justice.102 In its promotional video clips, the Court likes to switch
from a frame of a head-shot of an expert speaking the language of rule of law expertise
in a quiet clean-lined room to a crowded space inhabited by black people, with indistinct
chaotic chattering, children screaming, a parched land. Often, the crowds are filmed
expectantly facing a Court official, waiting to be informed.103 ‘The more spectacular the
conjuring of the victim, the more urgent the call to support – morally, fiscally, legally, – the
rule of law,’ observes Kamari Clarke.104 Much like charity appeals, the place in which the
Court has intervened is portrayed as a place of conflict, poverty, chaos, and helplessness.
The Court and its representatives in contrast are presented as ordered and benevolent.
It is no wonder that the so-called ‘international community’ has been described as
self-congratulatory.105
The ICC’s marketing campaign is arguably operating with this part of the ‘interna-
tional’ community in mind. The international community in question is invited to recoil
in horror at the perpetrator, feel sympathy with the victim, and solidarity and gratitude
for the humanitarian legal representative. This is the part of the international community
appealed to in press statements and promotional videos, in live streams of the court, and
in the op-ed sections of newspapers. These are the organizations and individuals who find
the simplified racialized, feminized, and infantilized narrative of victimhood appealing.
Few (if any) of this (particular) international community will ever need to be concerned
with coming under the remit of the Rome Statute, as victims or as perpetrators. Although
the international rule of law requires submission to it, it is not restrictive for the sponsors
of the ICC; and yet it offers the opportunity for minor engagement, for a fleeting feel-
good effect. This is humanitarianism without sacrifice, and without the consciousness
of complicity. It is these spectators, these voyeurs even, with buying and political power,
who are attracted by the brand of the rule of law. The market rationale at work therefore
displaces victims of international crime as the primary audience, placing instead the
‘international community’ as the consumers of global justice.
101
See for example the ICC website at https://www.icc-cpi.int/about/how-the-court-works/
Pages/default.aspx#organization; https://www.icc-cpi.int/about. For an analysis see Schwöbel-
Patel (note 32).
102
Elsewhere, I have discussed in more depth how this aesthetics is constructed in order to
create a ‘fundraising image’ of victimhood which legitimates intervention. Schwöbel-Patel (note
32).
103
See for example the ICC video ‘Victims’ participation before the International Criminal
Court’ https://www.youtube.com/watch?v=chymGL8teX4.
104
Kamari Maxine Clare, ‘The Rule of Law Through its Economies of Appearances: The
Making of the African Warlord’ (2011) 18 (1) Indiana Journal of Global Legal Studies 11.
105
Koskenniemi (note 58) 11.
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CONCLUSION
This chapter has invited the reader to understand the international rule of law as a brand-
ing tool which the ICC has adopted for its global justice brand. The way in which the ICC
has branded itself as being an agent for, or coincident with, the rule of law draws attention
to the (hidden) market rationale at the centre of the court’s operations. It also places the
ideological implications of the rule of law in a new light, as a concept which is intimately
entwined with marketization.
The ICC’s problems are, importantly, symptomatic of larger structural inequalities;
ones which it can hardly escape. Indeed, it is significant that the realization of the project
which then led to the establishment of the ICC took place in the 1990s, at the time of the
consolidation of neoliberalism and the rise of superbrands. Arguably, the institution and
its supporters only know the language of finite resources, competitors, private property
interests and growth as a way of making sense of themselves and the world. However,
the ICC is not just symptomatic of a neoliberal system, it is also itself productive of this
system. It has, as was shown above, embraced the marketing of global justice and made
use of the rule of law for these purposes.
It should be emphasized in closing that the ICC has run into trouble with its marketized
understanding of global justice. It has seemingly miscalculated both the audience of the
global North and of the global South. In the global North, (liberal) critics of the Court
tend to express concern over the lack of concrete results for their investment in global
justice. Others are critical of being made complicit in what appears to be a neo-colonial
project. Critics in the global South either feel they are being ‘targeted’ by the ICC or
feel that the ICC has not been able to live up to its promises, particularly for the victims
of international crime.106 The member states who have felt perceived their agency as
impinged are now reclaiming agency in a way which makes the ICC most vulnerable:
by threatening withdrawal from it, and thereby impairing its growth and committing to
competing global justice brands instead.107 Although its use of the rule of law as a brand-
ing tool may have enabled an initial flourishing of the ICC as a global justice project, it
could also be its ultimate downfall.
106
This miscalculation and overreaching of the market is referred to as ‘brandicide’ in market-
ing circles.
107
This is arguably demonstrated in the Molabo Protocol of the African Union, which gives
jurisdiction for international crimes to the African Court of Justice and Human Rights. It sets out
the aim of establishing an African Criminal Court, available at: <https://au.int/web/en/treaties/
protocol-amendments-protocol-statute-african-court-justice-and-human-rights>.
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27. The rule of law and terrorism
Clive Walker*
THE REIGN OF THE RULE OF LAW
The rule of law enjoys considerable prominence in the ideologies of lawyers, politicians,
and Parliament. Indeed, one might argue that a golden age has dawned for the rule of law,
especially in the UK where it is accepted ‘as never before’.1 Its doubters must confront a
number of incontrovertible features.
One is the outpouring of academic legal discourse on the doctrine which has been
espoused by Whigs (including the leading theorist Dicey),2 libertarians,3 and even
Marxists.4 While others have viewed it as biased, inadequate, or even a ‘noble lie’,5
they still feel compelled to discuss it. In the field of terrorism studies, some academics
have sought to formulate doctrines of exceptionalism in the face of terrorism,6 either
by demanding unassailable priority for state security or by positing the indeterminate
character of the state of emergency or exception. More have reaffirmed the current need
for the rule of law even in extremis.7
The second feature is that the judges remain wedded to the concept and continue to
voice considerable support. One of the most eminent UK judges of our era, the late Lord
Bingham, even devoted himself to writing a book on the topic.8
Third, in the political sphere, prominent politicians, such as Barack
Obama (US President 2009–17),9 and David Cameron (UK Prime Minister
* All websites listed were live at 23 March 2018.

1
Jowell, J., ‘The rule of law and its underlying values’ in Jowell, J. and Oliver, D., The Changing
Constitution (7th ed., Clarendon Press, Oxford, 2011) p.12.
2
See Dicey, A.V., Introduction to the Study of the Law of the Constitution (10th ed. MacMillan,
London, 1959).
3
See Hayek, F.A., The Road to Serfdom (University of Chicago Press, Chicago, 1944), The
Constitution of Liberty (University of Chicago Press, Chicago, 1960).
4
Thompson, E.P., Whigs and Hunters (Allen Lane, London, 1975) pp.265–6.
5
See Harden, I. and Lewis, N., The Noble Lie (Hutchinson, London, 1986).
6
See Schmitt, C., Political Theology: Four Chapters on the Concept of Sovereignty (George
Schwab (trans.), University of Chicago Press, Chicago, 2005); Agamben, G, The State of Exception
(University of Chicago Press, Chicago, 2005); Gross, O and ní Aoláin, F, Law in Times of Crisis
(Cambridge University Press, Cambridge, 2006).
7
See Finn, J.E., Constitutions in Crisis (Oxford University Press, Oxford, 1991); Dyzenhaus,
D., The Constitution of Law: Legality in a Time of Emergency (Cambridge University Press,
Cambridge, 2006); Loader, I. and Walker, N., Civilizing Security (Cambridge University Press,
Cambridge, 2007).
8
The Rule of Law (Allen Lane, London, 2010).
9
‘From Europe to the Pacific, we have been a nation that has shut down torture chambers
and replaced tyranny with the rule of law. That is who we are. And where terrorists offer only the
injustice of disorder and destruction, America must demonstrate that our values and institutions
453
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2010–16),10 have highlighted and elaborated the importance of the rule of law. Even

Chinese President Xi Jinping has joined in the discourse, though his country seems
more comfortable with a more limited concept of ‘socialist rule by law’, which
comprises a primitive version of ‘the rule of law as legality’ (explored below) in which
law is primarily an instrument without importing much moral significance to its
application.11
Finally, catching up with many endorsements in written constitutions both old and
new,12 even the UK, the last bastion of the uncodified constitution, has belatedly paid
respect to this revered doctrine by affirming the rule of law in the Constitutional Reform
Act 2005, section 1:
This Act does not adversely affect

(a) the existing constitutional principle of the rule of law, or
(b) the Lord Chancellor’s existing constitutional role in relation to that principle.
This rather abstruse recognition represents more a legal principle than a legal rule,
which is made more indeterminate by the fact that it does not seek to overcome the
competing doctrine of parliamentary sovereignty.13 Yet, such meagre foundations have
not stopped ever inventive lawyers from constructing arguments and decisions based
upon them. Thus, in R (Corner House Research) v Director of Serious Fraud Office,14 the
Serious Fraud Office (SFO) halted investigations into allegations that British Aerospace
had paid huge bribes to Saudi Arabian officials while negotiating the sale of military
aircraft, following threats from the Saudi Government that it would cancel the deal and
withdraw its cooperation from counter-terrorism collaboration. The Divisional Court
held that the decision was incompatible with the rule of law: ‘The rule of law is nothing
if it fails to constrain overweening power.’15 However, without doubting the rule of law,
the House of Lords reversed. The Director of the SFO enjoyed a broad discretion and
could take account of the danger, above all, to British public safety16 and could defer to
are more resilient than a hateful ideology.’ (https://obamawhitehouse.archives.gov/the-press-office/

remarks-president-national-security-5-21-09).
10
‘We are all British. We respect democracy and the rule of law.’ (https://www.gov.uk/govern
ment/speeches/extremism-pm-speech, 20 July 2015).
11
Rule by law must ensure that ‘the handle of the knife is firmly in the hands of the party
and the people.’ (http://chinadigitaltimes.net/2015/02/xis-sharp-words-ominous-legal-reform/, 10
February 2015). See further Stephenson, M., ‘A Trojan Horse in China’ in Carothers, T. (ed.),
Promoting the Rule of Law Abroad (Carnegie Endowment for International Peace, Washington
DC, 2006); 4th Plenary Session of the 18th Central Committee of the Chinese Communist Party,
Communique (Beijing, 20–23 October 2014, http://www.china.org.cn/china/fourth_plenary_ses
sion/2014-12/02/content_34208801.htm).
12
For example, the Treaty on European Union, art.2, states that ‘The Union is founded on the
values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for
human rights, including the rights of persons belonging to minorities.’ (Consolidated version, OJ
C 326, 26.10.2012).
13
See Shetreet, S., ‘Legislative reversals of judicial decisions’ in Wang, G. and Yang, F. (eds), The
Rule of Law: A Comparative Perspective (City University of Hong Kong Press, Hong Kong, 2013).
14
[2008] EWHC 246 (Admin), [2008] UKHL 60.
15
[2008] EWHC 246 (Admin) para.65 per Lord Justice Moses.
16
[2008] UKHL 60, para.53 per Baroness Hale.
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The rule of law and terrorism 455
the Government’s assessment of the risks to public safety from Saudi withdrawal from
bilateral intelligence exchanges.
Various reasonings may underlie these adamant affirmations across different
spheres, but one cause is surely the need for self-assurance in the face of insecuri-
ties, and one of the greatest insecurities so far faced in the twenty-first century has
been terrorism.17 It follows that the rule of law doctrine has become conspicuous in
that context, where it operates both as a legal principle and a political ideology, and
therefore an examination of legal doctrinal usage will form the bulk of this chapter.
In so far as the rule of law operates as political ideology, it forms part of the counter-
narrative to terrorism, functioning as a positive value in contrast with the negative
hearts and minds of the terrorists. Thus, the rule of law is vaunted in major counter
terrorism statements such as the United Nations Global Counter-Terrorism Strategy
2006.18 Likewise, the definition of cherished ‘British’ values in the UK’s ‘Prevent’ policy
within CONTEST includes the rule of law,19 so that opposition to its value can be
labelled ‘extremism’.20
Here is a doctrine with a long history,21 but equally with a contested history.22 It might be
more holistic to speak in terms of constitutionalism23 or legitimation.24 However, assum-
ing the rule of law is the chosen framework, no other statement of its virtues can match
the longevity or prominence of the hallowed writings of Albert Venn Dicey, especially in
UK constitutional law. His three meanings of the rule of law still have greater resonance
than competing versions.25 First is the rule of law as legality; second is the rule of law as
equality; third is the idea that the rule of law must underwrite fundamental individual
rights and seek to repel repression. These three ideals can set the structure for this chapter
in the context of terrorism and counter-terrorism. In doing so, the chapter will primarily
take its examples from the UK which has the longest and broadest experience of counter
17
Prime Minister’s Office, National Security Strategy and Strategic Defence and Security
Review 2015 (Cm.9161, London, 2015) para.3.3 depicts the increasing threat posed by terrorism as
one of four security priorities.
18
(A/RES/60/288, 20 September 2006) Part IV.
19
Prevent Strategy (Cm.8092, London, 2011) para.6.60. ‘CONTEST’ refers to Countering
International Terrorism: The United Kingdom’s Strategy (Cm.6888, London, 2006).
20
Counter-Extremism Strategy (Cm.9148, London, 2015) para.1.
21
See Loughlin, M., Swords and Scales (Hart, Oxford, 2000) chap.5; Tamanaha, B., On the
Rule of Law (Cambridge University Press, Cambridge, 2004) chap.1.
22
Waldron, J., ‘Is the rule of law an essentially contested concept (in Florida)?’ (2002) 21 Law
and Philosophy 137; Kleinfeld, R., ‘Competing definitions of the rule of law’ in Carothers, T. (ed.),
Promoting the Rule of Law Abroad (Carnegie Endowment for International Peace, Washington
DC, 2006); Trebilcock, M.J. and Daniels, R.J., Rule of Law Reform and Development (Edward
Elgar, Cheltenham, 2008) p.12.
23
See Walker, C., ‘Keeping control of terrorists without losing control of constitutionalism’
(2007) 59 Stanford Law Review 1395; Allan, T.R.S., Constitutional Justice (Oxford University Press,
Oxford, 2001).
24
See Beetham, D., The Legitimation of Power (MacMillan, London, 1991); Kuhnelt, J. (ed.),
Political Legitimization without Morality (Springer, Dordrecht, 2008); Horton, J., ‘Political legiti-
macy, justice and consent’ (2012) 15 Critical Review of International Social and Political Philosophy
129.
25
See Dicey, A.V., Introduction to the Study of the Law of the Constitution (10th ed.,
MacMillan, London, 1959) pp.188, 193, 195.
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terrorism laws of any country in the world26 and continues to exert a leading influence
elsewhere both through bilateral and multilateral fora.27 The UK model of comprehensive
and detailed counter terrorism legislation, especially the Terrorism Act 2000, has served
as a precedent for the codes of many other countries.28 Furthermore, the UK jurisdiction
has consistently embraced the rule of law doctrine in its domestic and foreign counter
terrorism policy,29 though has adhered to it far from perfectly. Nevertheless, the maxim
of UK Prime Minister, Tony Blair, in response to the 7 July 2005 London bombing, that
‘the rules of the game are changing’,30 was not followed by dramatic departures from rule
of law standards.31 In comparison, the ‘war on terror’ rhetoric adopted in the US after
9/11 (but rejected by the UK government)32 has involved severe departures from domestic
and international legal doctrines such as the rule of law. The Bush Presidency expressed
some rhetorical support for the rule of law but then diverted in practices such as detention
without trial, torture, and rendition,33 amounting to ‘a full scale assault, a war on law.’34
1. RULE OF LAW AS LEGALITY
The rule of law as legality demands a firm legal basis and open process in the applica-
tion of law, reflecting inherent attributes within the very concept of law such as clarity,
non-retrospectivity, and coherence with administrative action. These features are claimed
to amount to an ‘inner morality’.35 Such sentiments may be traced back to venerable
documents such as Magna Carta 1215, articles 39 and 40 of which contain the essence of
legality and due process:
26
See Walker, C., ‘Terrorism and criminal justice: past, present and future’ [2004] Criminal Law
Review 311.
27
For bilateral arrangements, see Murray, C.R.G., ‘Out of the shadows: The courts and the
United Kingdom’s malfunctioning international counter-terrorism partnerships’ (2013) 18 Journal
of Conflict & Security Law 193. For multilateral initiatives, see especially UNSCR 1624 of 14
September 2005 (drafted by the UK).
28
For adaptations, see; Roach, K., ‘The migration and derivation of counter-terrorism’ in
Lennon, G., and Walker, C., Routledge Handbook of Law and Terrorism (Routledge, Abingdon,
2015).
29
See the CONTEST strategy, Home Office, Countering International Terrorism: The United
Kingdom’s Strategy (Cm.6888, London, 2006) paras.44, 113.
30
The Times, 6 August 2005, p 1.
31
See Walker, C., ‘The treatment of foreign terror suspects’ (2007) 70 Modern Law Review 427.
Tony Blair later bemoaned the lack of change: Blair, T., ‘Shackled in the war on terror’ Sunday
Times 27 May 2007 p.19.
32
Compare Barron, J., ‘Bush says attack was “First War of the 21st Century”’ New York Times
13 September 2001; Miliband, D., ‘“War on terror’ was wrong’ The Guardian 15 January 2009,
https://www.theguardian.com/commentisfree/2009/jan/15/david-miliband-war-terror.
33
See Donohue, L.K., The Cost of Counterterrorism (Cambridge University Press, Cambridge,
2008).
34
Sands, P., Lawless World (Pelican, London, 2006) p. xi.
35
Fuller, L.L., The Morality of Law (Yale University Press, New Haven, 1964). See further
Raz, J., ‘The rule of law and its virtue’ (1977) 93 Law Quarterly Review 197; Barber, N., ‘Must
legalistic conceptions of the rule of law have a social dimension?’ (2004) 17 Ratio Juris 474; Riley,
S., ‘Human dignity and the rule of law’ (2015) 11 Utrecht Law Review 91.
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No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed
or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or
send others to do so, except by the lawful judgment of his equals or by the law of the land. . . ..
To no one will we sell, to no one deny or delay right or justice.36
This notion of the rule of law as legality may be the most basic of the three meanings to
be addressed but still entails more than what was described earlier as the ‘primitive’ ideas of
‘rule by law’ or ‘rule with law’, whereby law is simply a wholly malleable instrument almost
equivalent in normative value to raw coercion.37 Rule by law may be termed ‘authoritarian
legality’ involving ‘a repudiation of absolute or “non-derogable” human rights (against
torture or indefinite detention without charge); the expansion of seemingly unfettered state
secrecy and surveillance; broad judicial deference to executive discretion; and a reluctance
to remedy serious rights violations or to be held accountable for them’.38
This notion of the rule of law as legality has been insistently demanded as essential
in counter terrorism39 and is reflected in a number of ways. Ideologically, the rule of
law is specified as a prime consideration for reviewers of counter terrorism legislation.
Though some early reviewers were simply asked ‘to investigate’,40 their remit soon took on
normative aspects related to the rule of law. Thus, the seminal Diplock Report in 197241
went beyond its bare terms of reference to consider ‘arrangements for the administration
of justice in Northern Ireland . . . to deal more effectively with terrorism’ and sought to
identify, consistent with the European Convention on Human Rights (which would not
become a direct part of UK law for nearly two decades), ‘minimum requirements’ without
which ‘a tribunal should be regarded or described as an ordinary court of law’.42 Since
those days, terms of reference have become much more explicitly linked to the rule of law.
Thus, Lord Lloyd, whose report formed the basis for the Terrorism Act 2000, set in his
1996 review four principles against which the legislation should be judged:
(i) Legislation against terrorism should approximate as closely as possible to the

ordinary criminal law and procedure.
(ii) Additional statutory offences and powers may be justified, but only if they are
necessary to meet the anticipated threat. They must then strike the right balance
between the needs of security and the rights and liberties of the individual.
36
See Irvine, D., ‘The spirit of Magna Carta continues to resonate in modern law’ (2003) 119
Law Quarterly Review 227.
37
See Bowling, B., and Sheptycki, J., ‘Global policing and transnational rule with law’ (2015)
Transnational Legal Theory http://dx.doi.org/10.1080/20414005.2015.1042235.
38
Diab, R., The Harbinger Theory (Oxford University Press, Oxford, 2015) p.9.
39
See Kasper, E.T., ‘The influence of Magna Carta in limiting executive power in the war on
terror’ (2011) 126 Political Science Quarterly 547.
40
(Compton) Report of an Enquiry into allegations against the security forces of physical brutality
in Northern Ireland arising out of arrests on the 9 August 1971 (Cmnd.4828, London, 1971) para.1.
For similarly limited inquiries, see (Devlin) Report of the Nyasaland Commission of Inquiry (Cmnd
.814, London, 1959); Report of Mr Roderic Bowen QC on Procedures for the Arrest, Interrogation,
and Detention of Suspected Terrorists in Aden (Cmnd.3165, London, 1966).
41
Report of the Commission to Consider Legal Procedures to Deal with Terrorist Activities in
Northern Ireland (Cmnd.5185, London, 1972)
42
Ibid., paras.1, 12.
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(iii) The need for additional safeguards should be considered alongside any additional
powers.
(iv) The law should comply with the UK’s obligations in international law.43
No criteria are specified for the current Independent Reviewer of Terrorism Legislation
under section 36 of the Terrorism Act 2000, but the rule of law is regularly invoked in his
reports.44
Next, the rule of law as legality has been expressed in case law. In Entick v
Carrington in 1765, the Home Secretary purported to issue a warrant against Entick,
a radical publisher, for his officers to search his house and seize his papers with a
view to prosecution for seditious libel.45 When challenged, the Court of King’s Bench
demanded proof of legality but found none. There was no recognised power in
common law to conduct searches for the offence of sedition libel; nor did the Home
Secretary possess any common law or prerogative powers to order searches based
on state necessity or national security. Furthermore, the terms of the warrant were
too general. There the matter stood for many years, but, given that legality can also
be asserted through parliamentary sovereignty, search powers covering sedition and
national s ecurity were later conferred,46 but then sedition was subsequently abolished
altogether.47
An even more dramatic instance of the rule of law as legality related to Wolfe Tone
in 1798.48 Tone was the leader of a widespread rebellion by the United Irishmen
against the Crown, aided by French revolutionary forces and resulting in thousands of
deaths and the defeat of the rebels.49 Tone was captured and was sentenced to death
by court-martial. His father was granted a writ of habeas corpus by the High Court of
Ireland on the basis that the court-martial was unauthorised by law, despite it being
evident to all that Tone was guilty of the highest treason and would be executed sooner
or later (in fact he allegedly cut his own throat before the court official reached him).
Nevertheless, the rule of law as legality was enforced against the state even in those
dire circumstances.
The vitality and importance of the rule of law as legality in contemporary times may
be demonstrated by the attention to legality over external aspects of counter terrorism,
reflecting the increasingly transnational nature of terrorism. Perhaps when dealing with
transnational criminal issues, the ‘system assumes rather than develops a rule of law
framework’,50 but whenever that assumption is shown to be weak or false, it is remarkable
43
Inquiry into Legislation against Terrorism (Cm 3420, London, 1996) para 3.1.
44
See Report on the operation in 2010 of the Terrorism Act 2000 and of Part 1 of the Terrorism
Act 2006 (London, 2011) para.3.6.
45
Entick v Carrington (1765) 19 Howell’s State Trials 1029.
46
Police and Criminal Evidence Act 1984, ss.8–14; Intelligence Services Act 1994, s.5.
47
Coroners and Justice Act 2009, s.73; Criminal Justice and Licensing (Scotland) Act 2010,
s.51. For another statutory reversal of a court finding of illegality, see R v Londonderry JJ, ex parte
Hume [1972] N.I. 91 and the Northern Ireland Act 1972.
48
(1798) 27 Howell’s State Trials 614.
49
See Packenham, T., The Year of Liberty (Hodder and Stoughton, London, 1969).
50
Boister, N., An Introduction to Transnational Criminal Law (Oxford University Press, Oxford,
2012) p.278.
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how the UK courts have asserted legal rules over broad state prerogatives and have been
prepared to judicialise even sensitive intelligence issues.51
These assertions of the rule of law over external executive action have had an impact
upon complaints about treatment,52 rendition,53 lethal force,54 and detention.55 At
the insistence of the courts, the executive has also been prompted to apply the rule
of law as legality to overseas counter terrorism by means of public inquiries56 and
also policy statements.57 This refusal of the UK and European58 courts to allow ‘legal
black holes’59 is surely a strong assertion of the rule of law in its rudimentary sense.
Even the US courts have demanded basic levels of review and have asserted rights in
regard to detainees held in Guantanamo60 and have eventually brought ill treatment
into line with the terms of international law.61 Nevertheless, the US courts have
51
See Walker, C., ‘Review of the prerogative: the remaining issues’ [1987] Public Law 62;
Walker, C., ‘The judicialisation of intelligence in legal process’ [2011] Public Law 235.
52
See R (Abassi) v Secretary of State for the Foreign and Commonwealth Office [2002] EWCA
Civ 1598; R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office [2008]
EWHC 2048, 2100, 2519, 2549, 2973 (Admin), [2009] EWHC 152 (Admin), [2010] EWCA Civ 65;
R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin).
53
Al Rawi v Security Service [2011] UKSC 34; Secretary of State for Foreign and Commonwealth
Affairs v Rahmatullah [2012] UKSC 48; Rahmatullah (no.2) v Ministry of Defence, Mohammed v
Ministry of Defence [2017] UKSC 1; Belhaj v Straw and others; Rahmatullah (No 1) v Ministry of
Defence [2017] UKSC 3.
54
R (Al-Skeini and Others) v Secretary of State for Defence [2007] UKHL 26; R (Al-Sweady)
v Secretary of State for Defence (No.2) [2009] EWHC 2387 (Admin); R (Mousa) v Secretary of
State for Defence [2011] EWCA Civ 1334; R (al-Saadoon) v Secretary of State for Defence [2015]
EWHC 715 (Admin).
55
R (al-Jedda) v Secretary of State for Defence [2007] UKHL 58; al-Jedda v Secretary of State
for Defence [2010] EWCA Civ 758; Al Waheed v Ministry of Defence and Serdar Mohammed v
Ministry of Defence [2017] UKSC 2.
56
See Baha Mousa Inquiry, Report (2010-12 HC 1452); Sir Thayne Forbes, The Report of the
Al Sweady Inquiry (2014-15 HC 818).
57
See Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention
and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating
to Detainees (Cabinet Office, London, 2010).
58
Al-Saadoon and Mufdhi v UK, App. no. 61498/08, 2 March 2010; Al-Skeini v UK, App.
no. 55721/07, 7 July 2011; Al-Jedda v UK, App. no. 27021/08, 7 July 2011; El Masri v FYR Macedonia,
App. no. 39630/09, 13 December 2012; Hassan v UK, App. no. 29750/09, 16 September 2014; Nasr
and Ghali v. Italy, App. no. 44883/09, 23 February 2016. See Walker, C., ‘Detention in extremis’ in
Masferrer, A., and Walker, C., (eds), Counter-Terrorism, Human Rights, and the Rule of Law: Crossing
Legal Boundaries in Defence of the State (Edward Elgar, Cheltenham, 2013); Duffy, H., ‘War on
Terror’ and the Framework of International Law (2nd ed., Cambridge University Press, 2015).
59
See Steyn, J., ‘Guantanamo Bay’ (2003) 53 International & Comparative Legal Quarterly 1;
Sands, P., Lawless World (Pelican, London, 2006) chap.7.
60
Rumsfeld v Padilla 542 US 426 (2004); Rasul v Bush 542 US 466 (2004); Hamdi v Rumsfeld
542 US 507 (2004); Hamdan v Rumsfeld 548 US 557 (2006); Boumediene v Bush 533 US 723
(2008). The President’s policy to close the facility (Executive Orders 13492 and 13493: Review and
Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Close of Detention
Facilities and for a Review of Detention Policy Options, 22 January 2009) has been blocked by the
National Defense Authorization Act for Fiscal Year 2011 onwards.
61
See the Detainee Treatment Act of 2005, ss.1001–1006; Executive Order 13491: Ensuring
Lawful Interrogations, 22 January 2009.
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maintained a block on litigation from military operations in Afghanistan and Iraq,62

and have applied the state secrets doctrine to strike out challenges to many national
security powers.63
In conclusion, this first meaning of the rule of law secures substantial values.
First, it allows human agency and dignity by creating certainty as to the governing
regime. Second, it buttresses democracy. When government is not content with
the current demands of the rule of law, it must seek Parliamentary approval for change.
Third, it offers a standard against which to judge official action. Notwithstanding
these gains, this first meaning might be decried as an undue concentration on
‘legalism’.64 It delivers not so much ‘goodness or leniency as . . . legality’,65 which can
still be consistent with grave inhumanity.66 Therefore, further meanings should be
considered.
2. RULE OF LAW AS EQUALITY
The second of Dicey’s formulations of the rule of law is that the state must be subject to
the law, in terms of its authority, actions, and powers, and must be realistically challenge-
able by legal processes67 which can be enforced effectively.68 This attribute has often been
hard won in the field of terrorism. Accountability for misdeeds has often been wrung out
years later by court challenges or official inquiries.69
There is recent important case law which concentrates on equality, including cosmo-
politan equality.70 The leading case is A v Secretary of State for the Home Department
(the Belmarsh case) in 2004, which triggered the end of detention without trial under
Part IV of the Anti-Terrorism, Crime, and Security Act 2001. Opposition to detention
without trial and the accompanying derogation under Article 15 of the European
Convention coalesced in the condemnation by the Newton Report in 2003.71 The Home
62
See Al Maqaleh v Obama 738 F.3d 312 (2013).
63
Chesney, R.M., ‘State secrets and the limits of national security litigation’ (2007) 75 George
Washington Law Review 1249; Kalajdzic, J., ‘Litigating state secrets’ (2010) 41 Ottawa Law Review
289; Kumar, M.A., ‘Protecting state secrets’ (2013) 82 Mississippi Law Journal 1.
64
Shklar, J., Legalism (Harvard University Press, Cambridge, 1964).
65
Dicey (n 2) p.111.
66
See Mathews, A.S., Freedom, State Security and the Rule of Law (Juta, Cape Town, 1986).
67
See further O’Donnell, G., ‘Why the rule of law matters’ (2004) 15 Journal of Democracy 32;
Waldron, J., ‘The concept and rule of law’ (2008) 43 Georgia Law Review 1.
68
See M v Home Office [1993] 3 All E.R. 537.
69
See Walker, C.P. and Starmer, K., (eds), Miscarriages of Justice (Blackstone Press, London,
1999); Walker, C.P., Terrorism and the Law (Oxford University Press, Oxford, 2011) chap.1; Lord
Saville, Report of the Bloody Sunday Inquiry (2010–12 HC 29); Lord MacLean, Billy Wright Inquiry
Report (2010–12 HC 431); Morland, Sir M., Rosemary Nelson Inquiry (2010–12 HC 947); de Silva,
Sir D., Report of the Patrick Finucane Review (2012–13 HC 802); Robert Hamill Inquiry (http://
www.roberthamillinquiry.org).
70
See Walker, C., ‘Cosmopolitan liberty in the age of terrorism’ in Crawford, A. (ed.),
International and Comparative Criminal Justice and Urban Governance (Cambridge University
Press, Cambridge, 2011).
71
Anti-terrorism, Crime and Security Act 2001 Review, Report (2003-04 HC 100) para.203.
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Office response to the Newton Report anticipated no urgent reform.72 However, this
insouciance was terminally shaken by the intervention of the judicial House of Lords in
the Belmarsh case in late 2004.73 While a majority of the judges deferentially accepted
that a public emergency existed sufficient to warrant derogation under Article 15, they
found Part IV was not ‘strictly necessary’ on grounds of disproportionality and dis-
crimination. There were two troubling features: one was that it only affected deportable
aliens and ignored ‘neighbour’ terrorists;74 the other was the contradictory creation of a
‘prison with three walls’—the absent fourth wall arising from the statutory scheme which
allowed foreign detainees to opt to depart the jurisdiction and plot abroad. Anticipating
the inevitable criticism of judicial activism by politicians and the press, Lord Bingham
asserted that:
I do not in particular accept the distinction . . . between democratic institutions and the courts.
It is of course true that the judges in this country are not elected and are not answerable to
Parliament. It is also of course true . . . that Parliament, the executive and the courts have dif-
ferent functions. But the function of independent judges charged to interpret and apply the law
is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of
the rule of law itself.75
This House of Lords verdict was endorsed by the European Court of Human Rights
in 2009 by A v United Kingdom.76 As for the UK Government’s response to the Belmarsh
judgment, detention under Part IV was replaced by control orders under Prevention of
Terrorism Act 2005 which in turn gave way to the Terrorism Prevention Investigation
Measures Act 2011,77 both of which applied administrative restraints but short of
detention.
In this way, the rule of law as equality underlines the need to face down excessive
assertions of power on the part of the executive and to subject them to all aspects of the
rule of law, including respect for fundamental rights as described next. Failure to abide
by this precept can result in a form of dictatorship which wipes out all application of the
rule of law, as tragically illustrated by the position of the German Fuehrer when, on 26
April 1942, the Greater German Reichstag resolved that:
72
Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society (Cm.6147,
London, 2004) para.32.
73
[2004] UKHL 56. See Dickson, B, ‘Law versus terrorism: can law win?’ [2005] European
Human Rights Law Review 1; Walker, C, ‘Prisoners of “war all the time”’ [2005] European Human
Rights Law Review 50; Feldman, D, ‘Proportionality and discrimination in anti-terrorism legisla-
tion’ (2005) 64 Cambridge Law Journal 271; Poole, T., ‘Harnessing the power of the past? Lord
Hoffmann and the Belmarsh detainees Case’ (2005) 32 Journal of Law and Society 534; Edlin,
D.E., ‘Institutional identity and the rule of law: Belmarsh, Boumediene, and the construction of
constitutional meaning in England and the United States’ (2008) 41 Loyola of Los Angeles Law
Review 481.
74
See Walker, C, ‘“Know thine enemy as thyself ” Discerning friend from foe under anti-
terrorism laws’ (2008) 32 Melbourne Law Review 275.
75
[2004] UKHL 56, para.42.
76
App. no. 3455/05, 19 February 2009.
77
See Walker, C.P., The Anti-Terrorism Legislation (3rd ed., Oxford University Press, Oxford,
2014) chap.7.
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. . . the Führer must have all the rights postulated by him which serve to further or achieve
victory. Therefore—without being bound by existing legal regulations—in his capacity as leader
of the nation, Supreme Commander of the Armed Forces, governmental chief and supreme
executive chief, as supreme justice, and leader of the Party—the Führer must be in a position to
force with all means at his disposal every German, if necessary, whether he be common soldier
or officer, low or high official or judge, leading or subordinate official of the Party, worker,
or employee, to fulfil his duties. In case of violation of these duties, the Führer is entitled
after conscientious examination, regardless of so-called well-deserved rights, to mete out due
punishment, and to remove the offender from his post, rank, and position, without introducing
prescribed procedures.78
The enforcement of the rule of law as equality against the executive, as in the Belmarsh exam-
ple, should be demanded of both the legislature79 and the courts, but the latter has greater
independence from the executive and is more likely to focus on the plight of individuals than
of the collective. Especially in the fraught policy of area of terrorism, the courts must there-
fore assume the imperative and ultimate task of superintending the rule of law as equality.
3. RULE OF LAW AS THE RECOGNITION OF FUNDAMENTAL

RIGHTS
The notion of deep-seated individual rights being embedded in the rule of law concept
came to the fore with the International Commission of Jurists’ Declaration of Delhi
1959, which contended that the rule of law demanded respect for human rights and needs,
rights to representative and responsible government, an independent judiciary, and
remedies against wrongful governmental action.80 However, such an ambitious ‘thick’
statement of the rule of law triggers criticisms of subjectivity. Appropriate measures of
social justice are not easily determined, and the invocation of the rule of law doctrine
does not inherently solve that wider enterprise. Consequently, this third meaning can
easily degenerate into ‘a panacea’81 or an appeal to ‘all good things’.82 As stated by Raz,
‘We have no need to be converted to the rule of law in order to discover that to believe
in it is to believe that good should triumph.’83 Yet, without some insistent elements
of normative expectations, ‘thin’ depictions of the rule of law achieve too little.84 To
78
United States of America v Josef Altstötter, (http://www.loc.gov/rr/frd/Military_Law/pdf/
NT_war-criminals_Vol-III.pdf), 1947 (the ‘Judges’ Trial’, one of the war crimes trials at Nuremberg)
pp.235–6.
79
For its performance in the UK, see Horne, A. and Walker, C., ‘Parliament and national security’
in Horne, A. and Le Sueur, A. (eds), Parliament: Legislation and Accountability (Hart, Oxford, 2016).
80
See Marsh, N., The Rule of Law in a Free Society (ICJ, Geneva, 1959) p.3.
81
Carothers, T., ‘The rule of law revival’ (1998) 77(2) Foreign Affairs 95, p.95.
82
Jowell, J., ‘The rule of law and its underlying values’ in Jowell, J. and Oliver, D., The Changing
Constitution (7th ed., Clarendon Press, Oxford, 2011) p.22.
83
Raz, J., The Authority of Law (Clarendon Press, Oxford, 1979) p.211. See also Tamanaha,
B.Z., ‘A Concise Guide to the Rule of Law’ in Palombella, G. and Walker, N. (eds), Relocating the
Rule of Law (Hart, Oxford, 2008).
84
Neumann, M., The Rule of Law (Ashgate, Burlington, 2002) p.11; Dyzenhaus, D., ‘The
justice of the common law: judges, democracy and the limits of the rule of law’ in Saunders, C. and
Le Roy, K. (eds), The Rule of Law (Federation Press, Annandale, 2003) p.22.
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resolve this dilemma, and harking back to Dicey’s third meaning, many commenta-
tors tend to concentrate on the delivery of substantive justice confined to respect for
individual rights (and usually civil and political rights rather than social and economic
rights).85 Even this attenuated third meaning generates much dispute both as to how
far these supposed rights can survive challenge via parliamentary sovereignty and as
to the precise contours of the protected rights. Nevertheless, this third meaning of the
doctrine exerts considerable impact.86
As for the relationship between the rule of law and parliamentary sovereignty, the latter
has historically triumphed, albeit sometimes in a qualified way. In Phillips v Eyre,87 the
savage use of martial law to suppress rebellion in Jamaica was excused by an Immunity
Act 1865 which was upheld as harsh but valid by the courts. However, the power of this
third meaning was pushed to its limits in Oppenheimer v Cattermole by laws against Jews
in Nazi Germany, in response to which the judges were prepared to overrule the primary
doctrine of legislative supremacy at least as applied to the German legislature.88 It was
suggested in R (Jackson) v Attorney General that the same fate might apply even to
equivalent UK legislation.89
The relationship between fundamental rights and sovereignty has been affected by the
Human Rights Act (HRA) 1998, which has produced levels of vitality and specificity in
fundamental rights unimagined by Dicey. There are even specific reminders about rights
in some of the anti-terrorism legislation.90 Though the HRA, section 4, allows only a
court declaration of incompatibility rather than any power to strike down inconsistent
legislation, thus maintaining parliamentary sovereignty, the richness of human rights
discourse has been transformed to such an extent that some have criticised the judges for
overreach.91 Thus, critics view these developments as unduly hampering counter terror-
ism, as made clear by the Conservative Party Manifesto 2015 with this example: ‘We have
. . . deported suspected terrorists such as Abu Qatada, despite all the problems created by
Labour’s human rights laws. The next Conservative Government will scrap the Human
Rights Act, and introduce a British Bill of Rights.’92 The 2017 Manifesto more cautiously
85
For the distinction, see the International Covenant on Economic, Social and Cultural
Rights 1966 (United Nations, Treaty Series, vol.993 p.3) and the International Covenant on Civil
and Political Rights 1966 (United Nations, Treaty Series, vol.999 p.171); Riedel, E. et al (eds.),
Economic, Social, and Cultural Rights in International Law: Contemporary Issues and Challenges
(Oxford University Press, Oxford, 2014); Ssenyonjo, M., Economic, Social and Cultural Rights in
International Law (2nd ed., Bloomsbury, London, 2016).
86
See Allan, T.R.S., Law, Liberty, and Justice (Clarendon Press, Oxford, 1993) pp.20–25;
Sunstein, C., Democracy’s Constitution (Oxford University Press, New York, 2001) p.7.
87
(1870) LR 6 QB 1. See Handford, P., ‘The Genesis of Phillips v Eyre’ (UWA Faculty of Law
Research Paper No. 2013-08, 2008).
88
[1976] A.C. 249.
89
[2005] UKHL 56, paras 102, 107.
90
See Terrorism Prevention Investigation Measures Act 2011, sched.4 para.5.
91
See Ignatieff, M., Human Rights as Idolatry (Princeton University Press, Princeton, 2001);
Finnis, J., ‘Judicial Power: Past, Present and Future’ (http://judicialpowerproject.org.uk/wp-
content/uploads/2015/10/John-Finnis-lecture-20102015.pdf, 2015).
92
(https://www.conservatives.com/manifesto2015). See further Commission on a Bill of Rights,
A UK Bill of Rights? The Choice Before Us (Ministry of Justice, London, 2012). The case of Abu
Qatada referred to is Othman v United Kingdom, App. no. 8139/09, 17 January 2012.
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promised to maintain the HRA at least until after Brexit but with consideration of the
human rights framework thereafter.93
As for the meanings of protected rights, the degree of recognition has varied according
the rights involved. Looking first at bodily integrity, the force used against terrorists has
raised some of the most acute tensions between appeals to the rule of law and instincts
for decisive security action. For instance, in August 1971, as part of an attempt to
crackdown on the rising tide of Republican violence and challenges to state authority in
Northern Ireland, detention without trial (internment) was introduced and hundreds of
suspects were rounded up;94 14 were selected for ‘deep interrogation’ which involved the
five techniques of hooding, prolonged standing, sleep deprivation, noise, and strict diet.
The techniques were condemned in 1978 as inhuman and degrading treatment contrary
to article 3 of the Convention by the European Court of Human Rights;95 nowadays,
they would probably be labelled as torture.96 The reaction of the UK state ran the full
gamut of rule of law stances. The first urge was simply to establish what had happened,
achieved by the Compton Report in 1971.97 More contentious was what to do next;
another review, chaired by Lord Chief Justice Parker, reported in 1972.98 The majority
adopted a ‘rule by law’ approach: harsh treatment even contrary to the absolute right
in article 3 could provide invaluable information which must therefore be regularised
by new legal powers for the security authorities. To his great credit, the Prime Minister,
Edward Heath,99 sided with the minority view of Lord Gardner who argued that resort
to such conduct would be ‘a flagrant breach of the whole basis of the Rule of Law
and of the principles of democratic government’.100 This decision was implemented
by the Directive on Interrogation by the Armed Forces in Internal Security Operations
in 1972.101 However, the idea of ‘torture warrants’ resurfaced after 9/11,102 and even
beforehand, during The Troubles in Northern Ireland, there had been episodes when
the police and courts came close to endorsing a slightly milder version.103 Furthermore,
it was discovered at the time of the Iraq campaign in 2003 that the 1972 Directive ‘had
93
(https://www.conservatives.com/manifesto) p.37.
94
See Hogan, G., and Walker, C.P., Political Violence and the Law in Ireland (Manchester
University Press, Manchester, 1989) chap.3.
95
Ireland v United Kingdom, App. no. 5310/71, Ser. A.25 (1978) and request for revision, 20
March 2018.
96
Lord Hope, ‘Torture’ (2004) 53 International & Comparative Legal Quarterly 807, p.826.
97
(Compton) Report of an Enquiry into allegations against the security forces of physical
brutality in Northern Ireland arising out of arrests on the 9 August 1971 (Cmnd.4828, London,
1971).
98
(Parker) Report of the Committee of Privy Counsellors appointed to consider authorised
procedures for the interrogation of persons suspected of terrorism (Cmnd.4901, London, 1972).
99
Hansard (House of Commons) vol.832 col.744 2 March 1972.
100
(Cmnd.4901, London, 1972) para.20.
101
Hansard (House of Commons) vol.832 col.743 2 March 1972.
102
See Dershowitz, A., Why Terrorism Works (Yale University Press, New Haven, 2002);
Ignatieff, M., The Lesser Evil (Edinburgh University Press, Edinburgh, 2005); Gross, O., ‘Are
torture warrants warranted?’ (2004) 88 Minnesota Law Review 1481; Ginbar, V., Why Not Torture
Terrorists? (Oxford University Press, Oxford, 2008).
103
See R v McCormick [1977] NI 105; (Bennett) Report of the Committee of Inquiry into Police
Interrogation Procedures in Northern Ireland (Cmnd.7497, London, 1979).
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come to be forgotten’,104 and so new instructions were issued105 followed by a wide rang-
ing Iraq Historic Allegations Team as well as two public inquiries.106 Another aspect of
ill treatment has arisen from alleged complicity in US investigations and renditions in
pursuance of their ‘war on terror’; 27 instances have been found to be worthy of further
investigation, and large amounts of compensation have been paid.107
Lethal force has been another site of controversy.108 Doubts arise as to whether the
security authorities have been honest at inquiries,109 and judges have sometimes appeared
to adopt attitudes inconsistent with the concept of the rule of law as equality.110 The
adequacy of English laws about lethal force, including the need for stricter preparations
so as to avoid the creation of ‘shoot to kill situations’ was criticised in the case of the
shooting of three IRA suspects in Gibraltar in 1988,111 but no changes have ensued. There
is also still much rule of law work to be completed in the indistinct guidelines produced for
non-lethal baton rounds112 and for responses to suicide attacks (as contained in a police
guide, Operation Kratos).113
Issues of improper ill-treatment and deprivation of liberty have next been raised in
connection with rendition, and the rule of law has again provided a riposte by the courts.
In R v Mullen,114 Mullen had been convicted and sentenced to 30 years’ imprisonment in
1990 for conspiracy to cause explosions on behalf of the IRA after being returned from
Zimbabwe whence he had fled to avoid arrest.115 The UK authorities had decided against
seeking his formal extradition so as to avoid challenges and delays. Instead, the British
Secret Intelligence Service (MI6) negotiated with their Zimbabwean counterparts unlaw-
fully to render Mullen to the UK without reference to Ministers or courts, all in breach
104
An Investigation into Cases of Deliberate Abuse and Unlawful Killing in Iraq in 2003 and 2004
(Ministry of Defence, London, 2008) para 19.
105
See Walker, C., ‘Detention in extremis: transferring lessons from counter-terrorism polic-
ing to military detentions’ in Masferrer, A., and Walker, C., (eds), Counter-Terrorism, Human
Rights and The Rule of Law: Crossing Legal Boundaries in Defence of the State (Edward Elgar,
Cheltenham, 2013).
106
See Hansard (House of Commons) vol.506 col.93ws (1 March 2010) Bill Rammell. For the
specific inquiries, see fn.56.
107
See Sir Peter Gibson, The Report of the Detainee Inquiry (London, 2013); Cobain, I., Cruel
Britannia: A Secret History of Torture (Portobello, London, 2013)
108
See further in re McKerr [2004] UKHL 12; McKerr v UK, App. no. 28883/95, 2004; Ní
Aoláin, F, The Politics of Force (Blackstaff, Belfast, 1999); Taylor, P., Brits: The War against the
IRA (Bloomsbury, London, 2002); Cadwallader, A., Lethal Allies: British Collusion in Ireland
(Mercier Press, Dublin, 2013).
109
See Lord Saville, Report of the Bloody Sunday Inquiry (2010–12 HC 29).
110
See Cory Collusion Inquiry, Report: Lord Justice Gibson and Lady Gibson (http://cain.ulst.
ac.uk/issues/collusion/cory/cory03gibson.pdf, 2003) para.1.27.
111
McCann v UK, App. no. 18984/91, Ser. A.324 (1995).
112
Association of Chief Police Officers, Guidelines on the Use of Baton Rounds and Firearms
in Situations of Serious Public Disorder (see Northern Ireland Human Rights Commission, Baton
Rounds, Belfast, 2003).
113
Operation Kratos (Metropolitan Police Service, London, 2005).
114
[2000] Q.B. 520. But see also R v Secretary of State for the Home Department (Appellant) ex
parte Mullen [2004] UKHL 18 (refusal of compensation). US courts have not endorsed this abuse
of process argument: US v Alvarez-Machain 504 U.S. 655 (1992).
115
See R v Mullen (1991) 12 Cr. App. R. (S.) 754.
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of Zimbabwean and public international law, and without disclosure even to the English
trial judge. These actions were subsequently held to be unacceptable:
This Court recognises the immense degree of public revulsion which has, quite properly, attached
to the activities of those who have assisted and furthered the violent operations of the IRA and
other terrorist organisations. . . . Against that, however, the conduct of the security services and
police in procuring the unlawful deportation of the Appellant in the manner which has been
described, represents, in the view of this Court, a blatant and extremely serious failure to adhere
to the rule of law with regard to the production of a defendant for prosecution in the English
courts.116
Rendition from the UK of suspected terrorists has also encountered principled objec-
tions. In Chahal v United Kingdom,117 an attempt to deport a Sikh extremist to India, despite
fears of torture, was halted by the European Court of Human Rights which doubted that
half-hearted official assurances about treatment would sufficiently guarantee safety. The
decision was described by the Home Secretary, John Reid, as ‘outrageously dispropor-
tionate’118 and has been followed by repeated attempts to convince both domestic and
European courts that more elaborate assurances should dampen the risks. After a number
of false starts, these efforts succeeded in the case of Abu Qatada119 as regards treatment but
not in respect of the guarantee of a fair trial because of the fear that evidence derived from
torture would be adduced, contrary to rights to due process: ‘Torture evidence is excluded
to protect the integrity of the trial process and, ultimately, the rule of law itself.’120 The same
exclusionary rule has been applied within the UK courts in A v Secretary of State for the
Home Department (No 2): ‘Torture, one of most evil practices known to man, is resorted
to for a variety of purposes . . .. The temptation to use it in times of emergency will be
controlled by the law wherever the rule of law is allowed to operate.’121
But their Lordships did not rule out the executive taking account of torture statements
for the initiation of security actions such as arrests or securing public safety. Further,
it was left uncertain as to whether the same exclusionary rule extends to inhuman and
degrading treatment.
The courts also have been particularly strong in asserting due process rights in the
face of counter terrorism measures.122 Special criminal offences have been interpreted
narrowly to avoid overbreadth in R v G and J.123 As for the fairness of executive control
116
[2000] Q.B. 520, p.535 per Lord Justice Rose.
117
App. no. 22414/93, 1996-V.
118
Hansard (House of Commons) vol.460 col.1433 24 May 2007.
119
Othman v UK, App. no. 8139/09, 17 January 2012. See Guiffré, M., ‘An appraisal of
diplomatic assurances one year after Othman (Abu Qatada) v United Kingdom (2012)’ (2013)
2 International Human Rights Law Review 266; Anderson, D. and Walker, C., Deportation with
Assurances (Cm.9462, London, 2017).
120
Othman v UK, para.264.
121
[2005] UKHL 71, para.101 per Lord Hope. See Human Rights Watch, ‘No Questions Asked’
(New York, 2010).
122
See Walker, C., ‘Counter-terrorism and human rights in the UK’ in Breen-Smyth, M. (ed.),
The Ashgate Research Companion to Political Violence (Ashgate, Farnham, 2012).
123
[2009] UKHL 13. See Walker, C.P., Terrorism and the Law (Oxford University Press, Oxford,
2011) chap.5.
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orders, in Secretary of State for the Home Department v MB and AF,124 the House of
Lords decided that, although these executive measures did not involve the determina-
tion of a ‘criminal charge’,125 there must still be accorded ‘a substantial measure or
degree of procedural justice’.126 Out of respect for ‘human rights and the rule of law’,
this requirement was translated as requiring disclosure of at least the ‘gist’ of the case
against the suspect, as enunciated in Secretary of State for the Home Department v AF
(No 3) and meaning ‘. . .sufficient information about the allegations against him to
enable him to give effective instructions in relation to those allegations’.127 This lead has
in turn been followed by the European Court of Human Rights128 and the European
Court of Justice.129 Fair disclosure has even been enforced in civil claims to damages in
the Binyam Mohammed case,130 much to the chagrin of the US Government,131 but that
bold step prompted the institution of ‘Closed Material Proceedings’ in civil proceed-
ings under the Justice and Security Act 2013.132 Only in one highly exceptional case,
Guardian News and Media Ltd v Incedal, has due process in criminal proceedings been
compromised in a terrorist prosecution by severe restrictions on attendance and report-
ing (but not disclosure to the defendant), even though ‘the court proceeds on the basis
that the principle of open justice is fundamental to the rule of law and to democratic
accountability’.133
Personal liberty has received more limited endorsement. The extreme case of deten-
tion without trial could be readily condemned in A v Secretary of State for the Home
Department:
Indefinite imprisonment without charge or trial is anathema in any country which observes the
rule of law. It deprives the detained person of the protection a criminal trial is intended to afford.
Wholly exceptional circumstances must exist before this extreme step can be justified.134
124
[2007] UKHL 46.
125
Ibid., para 24.
126
Ibid., para 32.
127
[2009] UKHL 28 paras 7, 59. For its major impact, see Joint Committee on Human Rights,
Counter–Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control
Orders Legislation 2010 (2009–10 HL 64/HC 395) paras 17–28. Compare Tariq v Home Office
[2011] UKSC 35.
128
A v UK, App no 3455/05, 19 February 2009.
129
European Commission v Kadi, Joined Cases C‑584/10 P, C‑593/10 P and C‑595/10 P, 18 July
2013.
130
R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office [2008]
EWHC 2048, 2100, 2519, 2549, 2973 (Admin), [2009] EWHC 152 (Admin), [2010] EWCA Civ
65.
131
See Bingham, J., ‘Hillary Clinton made security help ‘threat’ to David Miliband over Binyam
Mohamed case’ The Daily Telegraph 29 July 2009 http://www.telegraph.co.uk/news/uknews/law-
and-order/5934016/Hillary-Clinton-made-security-help-threat-to-David-Miliband-over-Binyam-
Mohamed-case.html.
132
See Walker, C., ‘Living with national security disputes in court processes in England and
Wales’ in Martin, G., Scott Bray, R., and Kumar, M., Secrecy, Law, and Society (Routledge,
Abingdon, 2015).
133
[2016] EWCA Crim 11, para.47. See also Bank Mellat v Her Majesty’s Treasury (No 1)
[2013] UKSC 38.
134
2004 UKHL 56, para.74 per Lord Nicholls.
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However, the courts have been less ready to curtail police powers exercised under the
stress of operational circumstances.135 Even in the context of executive control orders, an
indulgent limit of 16 hours per day for curfews was allowed.136
Balanced rights, such as expressive rights, arising in the contexts of challenges to pro-
scription orders137 and journalists’ wishes to interview prisoners,138 have been indulged,
but the courts have been less inclined to endorse claims by visiting extremist speakers139 or
to uphold objections to offences against incitement to terrorism.140 However, the curtail-
ment of property rights demanded clear statutory authority in Ahmed v HM Treasury on
the basis that: ‘If the rule of law is to mean anything, decisions as to what is necessary or
expedient in this context cannot be left to the uncontrolled judgment of the executive.’141
Due process must also be accorded in proceedings relating to the freezing of assets.142
Most problematic has been the fate of privacy in counter terrorism. For instance,
though Lord Bingham warned against counter-terrorism powers being exercised by
public officials on ‘any personal whim, caprice, malice, [or] predilection’, the stop and
search powers under section 44 of the Terrorism Act 2000 were upheld in R (Gillan and
Quinton) v Commissioner of Police for the Metropolis by the House of Lords143 but not by
the European Court of Human Rights.144 Section 44 has since been replaced by a more
regulated power under section 47A but is still exercisable without reasonable suspicion
at point of application.145 Even more troublesome than personal searches has been
electronic surveillance in the context of transnational counter terrorism. The revelations
by Edward Snowden about global surveillance have given new impetus to the demands for
the rule of law.146 As far as the UK is concerned, the courts have at least been prepared to
examine, but not so much to control, these sensitive powers of data capture147 and data
135
See McE v Prison Service of Northern Ireland [2009] UKHL 15; Magee, Duffy, and Magee
v United Kingdom, App. nos.26289/12, 29062/12, 29891/12, 12 May 2015; Beghal v DPP [2015]
UKSC 49; Miranda v Secretary of State for the Home Department [2016] EWCA Civ 6.
136
[2007] UKHL 45, paras 105, 106.
137
Lord Alton of Liverpool v Secretary of State for the Home Department [2008] EWCA Civ
443. See further Walker, C., ‘“They haven’t gone away you know.” The persistence of proscription
and the problems of deproscription’ (2018) 30 Terrorism & Political Violence 236.
138
R (BBC) v Secretary of State for Justice [2012] EWHC 13 (Admin).
139
R (Lord Carlile) v Secretary of State for the Home Department [2014] UKSC 60.
140
R v Faraz [2012] EWCA Crim 2820.
141
[2010] UKSC 2, para.45 per Lord Hope.
142
Bank Mellat v HM Treasury [2013] UKSC 39; Council v Bank Mellat EUECJ C176/13, 18
February 2016.
143
[2006] UKHL 12.
144
Gillan and Quinton v UK, App. no. 4158/05, 12 January 2010.
145
See Walker, C.P., The Anti-Terrorism Legislation (3rd ed., Oxford University Press, Oxford,
2014) chap.4.
146
See Greenwald, G., No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance
State (Metropolitan Books, New York, 2014); Harcourt, B.E., Exposed: Desire and Disobedience in
the Digital Age (Harvard University Press, Cambridge, 2015); Lyon, D., Surveillance After Snowden
(Polity, Cambridge, 2015).
147
Kennedy v UK, App. No. 26839/05, 18 May 2010; Liberty v GCHQ [2014] UKIPTrib
13_77-H; Liberty v Secretary of State for the Foreign & Commonwealth Office [2015] UKIPTrib
13-77-H and [2015] UKIPTrib 13_77-H_2); Privacy International v Secretary of State for Foreign
and Commonwealth Affairs [2016] UKIPTrib 14_85-CH, [2017] IPT/15/110/CH.
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retention.148 Several expert inquiries have demanded more comprehensive legal frame-
works with much stronger oversight,149 and the Investigatory Powers Act 2016 promises
to deliver change, especially in terms of the clearer grant of, and stricter oversight over,
bulk collection powers.150
In summary, the rule of law as the recognition of fundamental rights has been by far the
most vibrant of the three meanings examined in this chapter. Some of the most prominent
decisions from the UK courts in the past decade or so have arisen from terrorism cases,
and much the same applies in other jurisdictions, including the US.151 However, three
notes of caution should be entered. First, the performance of the courts in applying this
third meaning has been distinctly uneven, with some rights receiving more due care than
others. Second, especially in the UK, the efforts of the court are subject to the doctrine
of parliamentary sovereignty which has especially ensured that executive measures and
broad policing powers have lived on and that ‘Closed Material Proceedings’ have been
instituted. Third, the challenge of the rule of law as the recognition of fundamental rights
has been met with some political resistance, indicated above all by the plans of the current
UK government plans to repeal or at least attenuate the HRA 1998.
CONCLUSION
‘We adopt the rule of law because we fear the rule of man.’152 The force of the rule of law
is especially important in counter-terrorism because terrorists expressly aim to skew the
rule of men through emotion and reaction. Therefore, resort to the rule of law has value
as a nebulous symbol but also as a righteous pathway to a just response. Both aspects
are encapsulated in the Northern Ireland (Stormont Agreement and Implementation
Plan) Act 2016153 which is another step towards seeking to dampen the vestiges of
paramilitarism in that jurisdiction. Sections 7 and 8 involves a new pledge for Ministers
and members of the Northern Ireland Assembly, added to the Northern Ireland Act 1998,
148
See Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources
(C-293/12) [2015] Q.B. 127; R (Davies and Watson) v Secretary of State for the Home Department
[2015] EWCA Civ 1185, [2018] EWCA Civ 70; Tele2 Sverige AB v Post-och telestyrelsen (C-203/15),
21 December 2016: EU:C:2016:970; R (National Council for Civil Liberties (Liberty)) v Secretary
of State for the Home Department [2018] EWHC 975 (Admin).
149
See Anderson, D., A Question of Trust – Report of the Investigatory Powers Review (Home
Office, London, 2015); Intelligence and Security Committee, Privacy and Security: A modern and
transparent legal framework (2014-14 HC 1075).
150
See Draft Investigatory Powers Bill (Cm.9152, London, 2015); McKay, S., Blackstone’s
Guide to the Investigatory Powers Act 2016 (Oxford University Press, Oxford, 2017).
151
See Aranda, A., ‘The Supreme Court’s post-9/11 war-on-terror jurisprudence: special
considerations, threshold determinations, and anticipatory review (2008) 73 Brooklyn Law Review
64; Garrison, A.H., Supreme Court Jurisprudence in Times of National Crisis, Terrorism, and War
(Lexington, Lanham, 2013).
152
Gordley, J., ‘Why the rule of law matters: a natural law perspective’ (2012) 57 American
Journal of Jurisprudence 1, 17.
153
For background, see http://www.northernireland.gov.uk/a-fresh-start-stormont-agreement
.pdf, 2015, para.2.5; McGrattan, C., ‘The Stormont House Agreement and the New Politics of
Storytelling in Northern Ireland’ (2016) 69 Parliamentary Affairs 928.
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which contains a commitment to challenge paramilitarism and ‘to support the rule of law
unequivocally in word and deed and to support all efforts to uphold it’. In this way, rule
of law symbolism is prominent, but there is also the more practical heuristic effect of the
administration of public pledges both for politicians and the electorate.
Despite the evidence of many legal advances under the rule of law banner given in this
chapter, it also contains, almost in equal measure, evidence of failure to live up to rule
of law standards. So, one might question whether counter terrorism can realistically be
conducted in accordance with the rule of law. The emotions engendered by terrorism
being what they are, compliance even by true believers will be tested ‘to the utmost’.154 Yet,
the discourses of lawyers and law, as illustrated in this chapter, suggest that compliance is
possible in principle, and it is remarkable how few states have resorted to express or wide
derogations from rule of law standards since 9/11 because of terrorism; within Europe,
just the UK in 2001 and France in 2015.155 Hopefully, the experience of these recent dark
days and the even darker days of past episodes of terrorism and war will instil sufficient
fortitude to support the rule of law. If not, the reassertion of the rule of law should follow,
perhaps in belated circumstances, against those who fail to abide, including lawyers and
judges.156
154
Lord Bingham, The Rule of Law (Allen Lane, London, 2010) p.158.
155
For the UK see Walker, C.P., The Anti-Terrorism Legislation (3rd ed., Oxford University
Press, Oxford, 2014) chap.1. For France, see Comte, R., State of emergency: proportionality issues
concerning derogations under Article 15 of the European Convention on Human Rights (Doc. 14506,
Council of Europe, Strasbourg, 2018).
156
See United States of America v Josef Altstötter, (http://www.loc.gov/rr/frd/Military_Law/
pdf/NT_war-criminals_Vol-III.pdf, 1947).
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28. Post-conflict peacebuilding and the rule of law
Teresa Almeida Cravo
INTRODUCTION
Peacebuilding has become a guiding principle for actors engaged in peace-promotion

activities in the periphery since its inclusion in the United Nations’ (UN) 1992 report,
An Agenda for Peace. This new conceptual framework offered a strategy to confront the
nature of post-Cold War armed conflicts that granted peace-promoting actors a deeper
role in war-torn countries, justifying unprecedented prerogatives in their reconstruction.
Aimed at supporting structures which consolidate peace and prevent a return to violent
conflict, peacebuilding is a multidimensional undertaking, involving security, political,
legal, economic and social institutions and practices, each understood as complementary
and mutually reinforcing. The goal is no longer merely the absence of war, but the
construction of a different social order conducive to non-violent relations.
If the goals of peacebuilding have remained consistent since its introduction, the focus
of specific interventions has shifted over time. Renewed attention to the root causes of
armed conflict and instability has increasingly led to their interpretation as products, in
part, of the breakdown of the rule of law. In turn, weak rule of law institutions are under-
stood as a major challenge to early post-conflict reconstruction and long-term conflict
prevention. In the last decade and a half, increasing attention has therefore been paid to
the rule of law as essential to the re-establishment of order and the advancement of peace
and development. As a consequence, support for the establishment and strengthening of
the rule of law has become a priority for interventions by foreign actors in post-conflict
contexts, progressively incorporated into their comprehensive peacebuilding approaches.
Yet, results have often been disappointing, with reforms struggling to gain the necessary
legitimacy within disrupted communities to function authoritatively. Despite an increase
in the scope and pace of rule of law reforms, great conceptual confusion exists about
what specifically such activities should entail, how they can be adapted to fit specific
local needs, and even the exact nexus between the rule of law and peacebuilding’s ends of
post-conflict peace and stability.
This chapter explores the prioritisation of the rule of law in the context of peacebuild-
ing initiatives. It begins with an overview of peacebuilding, presenting its intellectual
origins and international practice, as conceived and materialised by the UN and major
western donors. It then analyses the assumptions underlying rule of law promotion and
the concomitant discourse now hegemonic in international peacebuilding, as well as typi-
cal legal reforms supported by external actors in the periphery. Finally, the chapter turns
to challenges facing rule of law reform in post-conflict societies, reflecting on recurrent
criticisms in light of the purported goal of building a sustainable peace.
471
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PEACEBUILDING: CONCEPTIONS AND PRACTICE
The concept of peacebuilding was introduced in the academic lexicon long before it
became consensual in the world of policymaking. Johan Galtung, widely considered the
founder of Peace Studies, first introduced the term in his 1976 article ‘Three Approaches
to Peace: Peacekeeping, Peacemaking and Peacebuilding’.1
Galtung had already sought to move beyond received notions of peace as simply the
absence of war and violence, where the latter is understood narrowly as a deliberate act
by one identifiable actor to incapacitate another. Such a definition was too limited: ‘if
this were all violence is about, and peace is seen as its negation, then too little is rejected
when peace is held up as an ideal’.2 Direct violence, and a concomitant focus on large-scale
social conflict such as war, needed to be complemented by an awareness too of structural
and cultural violence.3 Peace, too, Galtung insisted, should be understood in its broadest
sense. If negative peace referred to the absence of direct violence and war, positive peace
required much more to further human flourishing.4
Surveying existing practices of international intervention, Galtung concluded, in his
1976 article, that both peacekeeping and peacemaking were insufficient approaches for
building a sustainable, positive peace.5 A new concept and set of practices, which Galtung
called peacebuilding, would go further, tackling the deeper roots of violence. While the
concept, in its infancy, lacked theoretical clarity, Galtung’s innovation was unapolo-
getically maximalist, an ambitious reimagining of peace-oriented activities anchored in
a notion of the struggle for peace as necessarily comprehensive and covering ‘countless
fronts’.6
Galtung’s insights into understandings of violence and peace went far beyond a mere
academic exercise. The theoretical innovation of peacebuilding carried with it clear
practical implications, especially once adopted by the UN in the 1990s. The close of the
Cold War and the apparent triumph of liberalism was marked by a renewed ‘multilateral
optimism’.7 At the same time, the period was marked by a dramatic increase in the
number of violent intrastate conflicts in the periphery: some 50 countries were affected
in 1991 alone.8 Interpreting these as ‘wars of the international community’ that required
the organisation to respond with determination,9 then-UN Secretary-General, Boutros
Boutros-Ghali, presented an ambitious proposal to address the challenges to international
1
Johan Galtung, ‘Three Approaches to Peace: Peacekeeping, Peacemaking and Peacebuilding’,
in Johan Galtung, Essays in Peace Research. Copenhagen: Ejlers, 1976, vol.II, 283–304.
2
Johan Galtung, ‘Violence, Peace and Peace Research’, Journal of Peace Research, 1969,
vol.6(3), 168.
3
Galtung (1969) 167–91; Johan Galtung, ‘Cultural Violence’, Journal of Peace Research, 1990,
vol.27(3), 291–305.
4
Johan Galtung, ‘An Editorial’, Journal of Peace Research, 1964, vol.1(1), 1–4.
5
Galtung (1976) 282–297.
6
Galtung (1976) 304.
7
Teresa Almeida Cravo, ‘Peacebuilding: Assumptions, Practices and Critiques’, Janus.net–e-
Journal of International Relations, 2017, vol.8(1), 48.
8
Peter Wallensteen and Margareta Sollenberg, ‘Armed Conflict, 1989-2000’, Journal of Peace
Research, 2001, vol.38(5), 629–44.
9
Almeida Cravo (2017) 48.
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Post-conflict peacebuilding and the rule of law 473
peace and security in the post-Cold War period. Set out in An Agenda for Peace10 (1992),
it proposed four action strategies: (i) preventive diplomacy, intended to prevent disputes
from arising, escalating into violence and spreading across borders; (ii) peacemaking,
intended to bring hostile parties to agreement through the peaceful means specified in
Chapter VI of the Charter;11 (iii) peacekeeping, intended to stabilise areas of tension,
through the deployment of a military and civilian presence in the field, with the consent
of all parties concerned; and (iv) post-conflict peacebuilding, presented as the organisa-
tion’s new priority and intended to ‘identify and support structures which will tend to
strengthen and solidify peace in order to avoid a relapse into conflict’. 12
This fourth pillar, in particular, signalled a new focus for the UN: its interventions
would seek no longer merely to end or prevent war, but to contribute to the construction
of a new social order, one conducive to nonviolent relations. Peacebuilding, then, entailed
two distinct but complementary tasks: on the one hand, preventing the resumption of
hostilities (peace understood negatively as the absence of violence); and, on the other,
addressing the root causes of conflicts in order to build a self-sustainable peace (peace
understood positively as a self-reinforcing institutional framework promoting peaceful
relations). This articulation closely followed Galtung’s earlier theoretical scheme with
its promotion of a maximalist agenda of positive peace as a prerequisite to any lasting
negative peace – that is, to the end of direct violence.13 Boutros-Ghali too saw in peace-
building a means to deal with ‘economic despair, social injustice and political oppression’
as sources of the violence plaguing the international system.14
The dramatic change in international relations, with the collapse of the Soviet Union
and the assertion of a western liberal hegemony, provided an opening for an era of greater
international interventionism. World organisations – and, gradually, various other collec-
tive and individual actors – became involved in attempts to mediate and resolve crises, as
well as to assist nations ravaged by the so-called ‘new wars’15 in their transition to peace.
Starting with the UN’s involvement in Namibia in 1989, large-scale interventions were
conducted in a growing number of countries involving a multiplicity of international
actors taking on myriad projects from disarmament to financial and humanitarian assis-
tance to the facilitation and monitoring of elections. Increasingly, following the scheme
set out in An Agenda for Peace, these tasks were framed under the rubric of peacebuilding.
Peacebuilding, as adumbrated by Boutros-Gali, was a relatively malleable framework
with its nod to both of Galtung’s negative and positive conceptions of peace and a
potentially pluralist view of the institutions conducive to peaceful relations. In practice,
10
UNSG, An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping: Report
of the Secretary-general Pursuant to the Statement Adopted by the Summit Meeting of the Security
Council on 31 January 1992, A/47/277, S/24111, http://www.un-documents.net/a47-277.htm, 17
June 1992.
11
The Agenda for Peace also refers to peace enforcement, included in the UN Charter, as an
instrument available within this new framework for action (UNSG (1992) paras 42–45).
12
UNSG (1992) para 21.
13
Oliver Ramsbotham, ‘Reflections on UN Post-Settlement Peacebuilding’, in Tom Woodhouse
and Oliver Ramsbotham (eds.), Peacekeeping and Conflict Resolution (Frank Cass Publishers 2000)
171; 175.
14
UNSG (1992) para 15.
15
Mary Kaldor, New and Old Wars. Cambridge: Polity Press, 1999.
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owever, it was constrained by the post-Cold War juncture marked by the apparent
h
triumph of western liberalism. Its ambitions quickly narrowed, transforming into what
has been called the ‘liberal peace’,16 with a distinctively western approach. Indeed, as
Christopher Clapham points out, the victors of the bipolar confrontation – not only
dominant western capitalist and liberal democratic states but also their civil societies, and
the mass of NGOs and international institutions they control – sought to restructure the
international system in their own image, promoting the set of values and beliefs that had
triumphed with the collapse of the Soviet Union.17 The peace strategy that emerged, then,
was synonymous with the creation of liberal democracies and market economies beyond
the West – in other words, ‘pacification through political and economic liberalisation’.18
The focus here was on rebuilding state-society relations along western liberal lines,
amounting, as Mark Duffield explains, to the transplantation of western modes of
organisation to replace indigenous ones.19
The fall of the Communist Bloc and its alternative model meant that this interventionist
approach was readily encouraged, imposed without rival across the global south through
political and economic conditionalities, in what has been labelled the ‘end of history
syndrome’.20 The convergence around what Kahler has called the ‘New York Consensus’21
reflected the liberal dream of creating multiparty democracies with market economies
and strong civil societies, and, as Newman et al. rightly remind us, of promoting western
liberal practices and values, such as secular authority, centralised governance, the rule
of law and respect for human rights.22 As Richmond explains, peace is viewed by the
western international community as an ‘achievable ideal form, the result of top-down and
bottom-up actions, resting on liberal social, political and economic regimes, structures
and norms’.23 To think of ‘peace as governance’24 also involves looking at peacebuilding
as a means to an end: that is, as an institutionalised model embodied in a set of steps
16
See David Spiro, ‘The Insignificance of the Liberal Peace’, International Security, 1994,
vol.19(2), 50–86; Roland Paris, ‘Bringing the Leviathan Back In: Classical Versus Contemporary
Studies of the Liberal Peace’, International Studies Review, 2006, vol.8(3), 425–40; Oliver
Richmond, ‘The Problem of Peace: Understanding the ‘Liberal Peace’’, Conflict, Security &
Development, 2006, vol.6(3), 291–314; Michael Doyle, Liberal Peace: Selected Essays (Routledge
2011); Jarrod Hayes, ‘The Democratic Peace and the New Evolution of an old Idea’, European
Journal of International Relations, 2012, vol.18(4), 767–91.
17
Christopher Clapham, ‘Rwanda: The Perils of Peacemaking’, Journal of Peace Research,
1998, vol.35(2) 193–4.
18
Roland Paris, ‘Peacebuilding and the Limits of Liberal Internationalism’, International
Security, 1997, vol.22(2) 56.
19
Mark Duffield, Global Governance and the New Wars: The Merging of Development and
Security (Zed Books 2001) 42.
20
Chih-yu Shih, Collective Democracy: Political and Legal Reform in China (The Chinese
University Press 1999) vii.
21
Miles Kahler, ‘Statebuilding After Afghanistan and Iraq’, in Roland Paris and Timothy Sisk
(eds), The Dilemmas of Statebuilding: Confronting the Contradictions of Postwar Peace Operations
(Routledge 2009) 288.
22
Edward Newman et al., ‘Introduction’ in Edward Newman et al. (eds), New Perspectives on
Liberal Peacebuilding (United Nations University Press 2009) 12.
23
Oliver Richmond, The Transformation of Peace (Palgrave Macmillan 2005) 110.
24
Richmond (2005) 52–84.
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needed to build liberal peace. This understanding, initially dominant in the UN but
quickly spreading to other organisations,25 not only reflected the growing appetite for
interventionism but also contributed to its normative acceptance, necessarily questioning
the inviolability of territorial integrity.26
The practice of peacebuilding involved, therefore, a ‘standard operating procedure’27
that sought to take on a universal and hegemonic character. The great potential for
opening the concept of peacebuilding to numerous definitions based on different under-
standings and approaches – which could have gained a multitude of concrete forms in
post-conflict contexts – was instead reduced to the specificity of the western and liberal
worldview, and thus closed to other experiences and alternatives. Though the concept and
practice of peacebuilding continue to evolve in response to experiences in the field and
acute critiques of both its western imprint and concrete interventions, the original cultural
and ideological assumptions have remained largely unscathed in hegemonic international
peacebuilding. 28
RULE OF LAW AS A PEACEBUILDING TOOL
Peacebuilding in most post-conflict countries has long encompassed numerous activities

across various institutions – security, political, social and economic – and these have
often contained an implicit legal component. Increasingly, though, the importance of law
and legal institutions and their reform has become explicit, as the root causes of armed
conflicts have been interpreted as, in part, products of the breakdown of the rule of law.
In other words, a weak rule of law and weak legal institutions are understood as major
contributors to instability and key challenges to short-term reconstruction and long-term
peace and development.
Rule of law reform has thus become a priority in external interventions aimed at the
reestablishment of order and the promotion of peace in war-torn countries and societies.
As Krygier puts it, ‘[i]f celebratory rhetoric is to be believed, or money devoted to a cause
regarded as a sign of its success, ours is the era of the rule of law. No one will be heard to
denounce it, leaders of countries all round the world claim to have it, vast sums are spent
to spread it’.29 The rule of law is now regarded as essential for modern governance, indeed
as the ‘foundation of civilised society’.30
Yet, conceptual clarity is not the hallmark of international thinking on the rule of
25
The UN sought to strengthen the generalised consensus on peacebuilding’s institutional
practice and streamline its missions within a framework of liberal peace through administrative
reforms such as the creation of the Department of Peacekeeping Operations as early as 1992 and
the Peacebuilding Commission in 2005, as well as through the more systematic use of the Special
Representatives of the Secretary-General.
26
Newman et al. (2009) 5.
27
Ramsbotham (2000) 170.
28
See Almeida Cravo (2017).
29
Martin Krygier, ‘Philip Selznick: Incipient Law, State Law and the Rule of Law’, in Hanneke
van Schooten and Jonathan Verschuure (eds), International Governance and Law. State Regulation
and Non-State Law. (Edward Elgar Publishing Ltd 2008) 31.
30
International Bar Association (IBA), ‘Rule of Law Resolution’, 2005, available at https://
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law. References to the rule of law appear in the preamble to the Universal Declaration
of Human Rights and other international legal texts without ever being defined. Indeed,
‘few concepts in political discourse garner so much attention and yet remain so plastic
in definition’.31 Different meanings have attached at various times to the rule of law
and, even today, behind the apparent consensus over its necessity, rule of law advocates
– including academics, donors and recipients – espouse manifold and even conflicting
visions.32
Historically, the rule of law has stood for procedural justice with a focus on those
features that any legal system must possess to function effectively as a check on arbitrary
state power. On this formalist or ‘thin’ view, governmental action must be based on rules
that are clear, consistent, publicly declared and prospective. Moreover, the law must bind
all individuals equally, including those in power. Under such requirements, government
officials have little discretion or ability to act arbitrarily, hence the ‘rule of law’ as opposed
to the ‘rule of man’. In sum, at a minimum, the rule of law is understood to offer juridical
equality and, on the classical liberal view, protection from arbitrary government.33 In this
conception, the rule of law is largely about ‘imposing meaningful restraints’.34
Critics have lamented that this narrow, negative view of the rule of law is blind to any
normative content of the law so long as it follows certain formal, procedural prescrip-
tions. They have instead advocated a substantive or ‘thick’ conception of the rule of law,
concerned with the creation of a just society and hence standing not simply for judicial
equality and a government bound by law, but for a longer list of substantive rights and
institutions. These have included political democracy or even a complete juridico-political
system encompassing a supreme constitution, a bill of rights, the separation of powers,
constitutional judicial review, judicial independence, etc. This perspective, besides insist-
ing ‘that the rule of law cannot be divorced from fundamental elements of political
morality and institutional practicality’, also establishes a clear interconnection with liberal
democracy, espousing a ‘democratic rule of law’.35
This broader debate about the meaning of the rule of law is mirrored in international
policymaking, even as the need for its active promotion in the periphery gradually became
set in stone. The idea of advancing rule of law reform in the context of international
www.ibanet.org/Document/Default.aspx?DocumentUid=a19de354-a0d7-4b17-a7ff-f6948081cd85
(accessed on 10 July 2017).
31
Teresa Almeida Cravo and Tor Krever, ‘The Prioritisation of Rule of Law Support from a
Peacebuilding Perspective’, NOREF Report, 2012, 2.
32
See Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University
Press 2004); Thomas Carothers (ed.), Promoting the Rule of Law Abroad: In Search of Knowledge
(Carnegie Endowment for International Peace 2006); Per Bergling et al. (eds), Rule of Law
Promotion: Global Perspectives, Local Applications (Iustus Förlag 2009); Mortimer Sellers and
Tadeusz Tomaszewski (eds), The Rule of Law in Comparative Perspective (Springer 2010); Rachel
Kleinfeld, Advancing the Rule of Law Abroad: Next Generation Reform (Carnegie Endowment for
International Peace 2012).
33
Albert Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund
2012[1885]).
34
Randall Peerenboom, China’s Long March Toward Rule of Law (Cambridge University Press
2002) 2.
35
Amichai Magen, ‘The Rule of Law and its Promotion Abroad: Three Problems of Scope’,
Stanford Journal of International Law, 2009, 45, 62–3.
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interventionism is fairly recent, having emerged only in the 1960s, with the US Law and
Development movement and the experience of American aid to developing countries. It
was championed by leading American legal scholars – and mainly funded by USAID and
the Ford Foundation – who linked economic and social development in the periphery, in
particular Latin America, with the reform of national legal systems. The US’s own legal
system and institutions were taken as the appropriate model and, in practice, reform
largely consisted of the transplantation of US institutions. By the 1970s the movement
had already declared this attempt at transplantation a failure.36 But in the 1970s and
1980s, a revival of rule of law reform took place in the context of international assistance
to the democratic transitions of authoritarian states, first in Latin America, and, in the
aftermath of the Cold War, in the post-Soviet states of Eastern Europe. The EU’s enlarge-
ment process, and the concomitant legal changes required of prospective member states
to join the Union, represented a particularly prolific terrain to broaden the geographical
scope of the rule of law.
From the 1990s onwards, its promotion expanded further, especially on the Asian and
African continents, now explicitly within the framework of post-conflict peacebuild-
ing. This new strategy of the post-Cold War peace and security agenda, provided the
perfect window of opportunity to encourage a complete reconfiguration of laws and
institutions in countries ravaged by war. Both the US and the EU, drawing on their
own assumptions about the rule of law as one of the core values upon which they are
founded,37 as well as on their own experience in their respective peripheries, gained
prominence in assisting transitions in countries beyond their immediate neighbourhoods
and dedicated considerable resources to this field. So too the UN, which, in the 2000s,
moved the rule of law from the realm of the High Commission for Human Rights, and
slowly affirmed its centrality to all UN activities38 – ‘a concept at the very heart of the
Organization’s mission’39 and ‘the bedrock’ upon which it is built.40 Contemporary rule
of law promotion became therefore a ‘global phenomenon, supported by a far greater
36
See David Trubek and Marc Galanter, ‘Scholars in Self-Estrangement: Some Reflections on
the Crisis in Law and Development Studies in the United States’, Wisconsin Law Review, 1974, 4,
1062–102. See also Tor Krever, ‘Law, Development and Political Closure under Neoliberalism’, in
Honor Brabazon (ed.), Neoliberal Legality: Understanding the Role of Law in the Neoliberal Project
(Routledge 2017).
37
The rule of law is enshrined in the EU Treaties and it is also explicit in the Charter of
Fundamental Rights of the EU, which entered into force with the Lisbon Treaty in 2009. In the
Union’s own words, ‘the EU is based on the rule of law. Everything the EU does is founded on
treaties, voluntarily and democratically agreed by its member countries.’ (European Union, ‘The
EU in Brief’, available at https://europa.eu/european-union/about-eu/eu-in-brief_en, accessed on
10 July 2017). In turn, the rule of law is well established as a foundation of US common law and,
arguably, reflected in the US Constitution.
38
Chandra Sriram et al., ‘Promoting the Rule of Law: From Liberal to Institutional
Peacebuilding’, in Chandra Sriram et al. (eds), Peacebuilding and Rule of Law in Africa: Just Peace?
(Routledge 2011) 11.
39
UNSG, Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict
and Post-Conflict Societies, A/2004/61, 23 August 2004, para 6.
40
Jan Eliasson, ‘The Role of the UN in Promoting the Rule of Law: Challenges and New
Approaches’, UN Chronicle, December 2012, vol.XLIX(4), available at https://unchronicle.un.org/
article/role-un-promoting-rule-law-challenges-and-new-approaches (accessed on 10 July 2017).
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number of agencies and countries, rationalized on the basis of economic development,

democracy and peace’.41
Rule of Law Reform in Post-conflict Countries
Within the sphere of peacebuilding, international donors have, at least rhetorically, tended
to favour a substantive conceptualisation – that is, one which is not merely about formal
legality, but assures ‘justice based on the recognition and full acceptance of the supreme
value of the human personality and guaranteed by institutions providing a framework for
its fullest expression’.42 But, as with debates over the optimal breadth of other reforms,
there is disagreement about how capacious a conception of the rule of law should be. While
the activities and policies pursued under this heading are varied, and little agreement on
its exact content and parameters prevails, they can be grouped under two broad pillars:
(1) reforms aimed at creating a system of laws that provide the ‘rules of society’ and
offer reliability, predictability and justice, while also providing norms that define
appropriate societal behaviour and protect individual rights; and
(2) reforms aimed at creating a set of institutions that provide for the peaceful resolution
of disputes, enforce laws, and regulate the political and judicial system.
Laws and rights

A central focus of rule of law assistance under the aegis of peacebuilding is legislative
reform. Laws and legal codes may require provisions for the protection of minority rights,
as in the OSCE’s mission in Kosovo;43 removing openly discriminatory legislation against
women, as in the UN’s mission in Afghanistan;44 or the protection of basic rights in crimi-
nal procedures, as in the EU’s mission in post-Soviet Georgia.45 Increasingly, international
donors also seek the recognition and enforcement in national law of various international
human rights standards and agreements, focusing on the ratification of and accession
to various international treaties and protocols as, for instance, with UN assistance in
East Timor.46 Commercial laws, banking legislation and property rights regimes are also
41
Kirsti Samuels, ‘Rule of Law Reform in Post-Conflict Countries: Operational Initiatives and
Lessons Learnt’, Social Development Papers – The World Bank, 2006, no37, 1.
42
OSCE, ‘Document of the Copenhagen Meeting of the Conference on the Human Dimension
of the CSCE’, 1990, 3, available at http://www.osce.org/odihr/elections/14304 (accessed on 10 July
2017).
43
See OSCE mission in Kosovo: www.osce.org/mission-in-Kosovo (accessed on 10th July
2017).
44
See United Nations Assistance Mission in Afghanistan and Office of the High Commissioner
for Human Rights in Afghanistan, ‘A Long Way to Go: Implementation of the Elimination of
Violence Against Women Law in Afghanistan’, 2011, available at https://unama.unmissions.org/
sites/default/files/november_23_unama-ohchr-joint-report-on-implementation-of-evaw-law_eng_1.
pdf (accessed on 10 July 2017).
45
See Damien Helly, ‘EUJUST Themis in Georgia: an ambitious bet on rule of law’, in
Agnieszka Nowak (ed.), Civilian Crisis Management: the EU way. Chaillot Paper No.90, Institute
for Security Studies, 2006.
46
See Helen Durham, ‘From Paper to Practice: The Role of Treaty Ratification Post-Conflict’,
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common areas of reform,47 as are civil and political rights, often inscribed in newly created
or redrafted national constitutions, ‘intended to bind all members of the society’.48
While the content of laws has been an important focus for donors, many have also
concentrated on improving legal certainty in post-conflict societies. Such certainty allows
individuals and businesses to plan their activities by knowing what conduct is permissible
and can be undertaken without fear of government sanction. Citizens may also interact
with one another knowing in advance how disputes will be resolved and what rules will be
applied to a dispute. Reforms thus also aim to ensure that laws are crafted through public
processes and made public, decisions of courts made binding, limitations introduced on
the retroactivity of laws, and laws (as well as court decisions) drafted in clear, accessible
language.49
Institutions
For laws to function as intended, an institutional framework is needed. The increased
competency, efficiency and accountability of legal institutions has therefore been a second
important focus of rule of law reform efforts. Basic steps include providing improved
training and salaries for judges and court staff to ensure judicial independence, as well
as establishing an efficient system for the authoring and easy dissemination of judicial
decisions. Prosecutors and public defenders, police and other law enforcement bodies such
as customs and border guards, and prisons are all central to the rule of law and benefit
from reform to improve skills and root out corruption. Similarly, improved legal educa-
tion and new or redrafted ethics codes and professional standards for lawyers and other
judicial actors improve the quality of legal representation and decision-making. Finally,
in some jurisdictions entirely new court structures may be required. In post-war Bosnia,
for example, a new Constitutional Court and Human Rights Chamber were established
with jurisdiction to hear claims and investigate human rights violations, in an attempt to
foster a vision of a multicultural state and reject often institutionalised discrimination. In
Mexico, the German aid agency has been building the Office of the Attorney General’s
capacity to investigate drug-related crimes, with a special focus on improved procedures
to deal with enforced disappearances.
In the post-Cold War world of interventionism, the rule of law rubric has merged
several concerns. It regularly implicates extra-legal sectors, with interventions under the
rubric of the rule of law increasingly also linked to broader security sector management,
electoral reform and economic restructuring.50 Of course, in light of the support provided
to courts, government legal offices or specialised law enforcement agencies, as well as
in Brett Bowden et al., The Role of International Law in Rebuilding Societies after Conflict: Great
Expectations, (Cambridge University Press 2009) 189.
47
See Ioannis Glinavos, Neoliberalism and the Law in Post Communist Transition: The Evolving
Role of Law in Russia’s Transition to Capitalism (Routledge 2010).
48
Kirsti Samuels, ‘Postwar Constitution Building: Opportunities and Challenges’, in Roland
Paris and Timothy Sisk (eds), The Dilemmas of Statebuilding: Confronting the Contradictions of
Postwar Peace Operations (Routledge 2009) 173.
49
Magen (2009) 59–63.
50
On the connections between peacebuilding, the rule of law and SSR, see Teresa Almeida
Cravo, ‘Linking Peacebuilding, Rule of Law and Security Sector Reform: The European Union’s
Experience’, Asia Europe Journal, 2016, vol.14(1) 107–24.
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engagement in legislative reform encompassed by rule of law promotion, its central role in
these other areas was entirely predictable. In fact, under this all-encompassing conception,
the rule of law has quickly begun to look like governance writ large.
Promoting peace
How, then, are such reforms understood to contribute to the promotion of peace? The
assumption prevalent in both international institutions and the academy is that these rule
of law reforms contribute to the ends of peacebuilding by helping establish stability and
security in post-conflict or unstable societies and prevent the (re)emergence of violent
conflict. It is often the case that, in post-war societies, various institutions constituting the
rule of law are absent, dysfunctional, or simply considered illegitimate. A dysfunctional
system of governance may be incapable of providing, or unwilling to provide, security and
prosperity to its citizens. This may be a matter of institutional weakness, but it may also
be a product of a governance apparatus acting outside the rule of law or flaunting demo-
cratic principles and respect for human rights. Abuse of power, impunity, discrimination
and corruption exacerbate social conflicts and hamper reconciliation. Grave injustice and
inequality feeds conflicts.
Judged essential for upholding a societal expectation of peaceful relations and for
providing the concrete instruments for that end, the transplantation of a liberal legal
framework into post-war scenarios seeks to address issues ranging from human and insti-
tutional capacity to conflict resolution mechanisms and institutions that allow disrupted
societies to settle disputes in accordance with the law, as well as address the underlying
inequalities and grievances. As Daniel Levin writes, ‘when institutional power is distrib-
uted in such a way that each potentially violent faction can see their interests being better
protected by legal institutions’ then ‘violent conflict becomes less attractive’.51 The rule
of law is thus not only about the provision of a legal framework that enables governance,
but also about making governance accessible and accountable to civilian oversight. In
other words, on the view of the rule of law’s proponents, reforms should aim to (re)build
a country’s institutional legal framework which is effective and efficient, while simultane-
ously democratic and consistent with good governance.52 By building mechanisms and
procedures that provide for the peaceful resolution of disputes, while also constraining
individuals’ or groups’ ability to resort to violence, the argument goes, rule of law reform
can not only decrease the likelihood of an escalation of violent conflict but also form an
institutional structure for instilling habits and patterns of behaviour, instrumental to the
attainment of broader peace goals.
The rule of law encapsulates therefore not merely an absence of violence, with disputes
being resolved in a peaceful way, but the institutional environment in which to pursue
one’s livelihood and enjoy the fruits of development. It is thus hardly surprising that rule
of law promotion rapidly became common practice and a central plank of the peacebuild-
51
Daniel Levin, ‘Rule of law, Power Distribution, and the Problem of Faction’, in Mortimer
Sellers and Tadeusz Tomaszewski (eds), The Rule of Law in Comparative Perspective (Springer
2010) 151.
52
See Isabelle Ioannides, Rule of Law in European Union External Action: Guiding Principles,
Practices and Lessons Learned (International Institute for Democracy and Electoral Assistance
2014).
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ing agenda, given this understanding of its relevance for the promotion of self-sustainable
peaceful social relations.
LIMITATIONS OF RULE OF LAW REFORM IN POST-CONFLICT

CONTEXTS
Notwithstanding the prioritisation for the past two and a half decades of the reform of
laws and legal institutions in war-torn societies as a tool for post-conflict peacebuilding,
the success of external actors in fostering stability, peace and development in the periph-
ery has been disappointing. A number of problems and challenges can be identified.
Uncoordinated Activities and the Absence of a Comprehensive Approach
Peacebuilding entails numerous activities in a variety of fields, within virtually all of

which some aspect of the rule of law is implicated. The legal dimension of peacebuilding
policies involves therefore an expanding number of programmatic areas. Such activities as
drafting national justice strategies, assisting constitution-making processes, strengthening
police and law enforcement institutions, improving gender equality, investigating allega-
tions of human rights violations, and addressing housing, land and property issues all
now fall under rule of law reform. In this context, delineating a coordinated approach
that prioritises those specific legal reforms most needed in a given post-conflict society
has proven a significant challenge.
Individual reforms alone are unlikely to achieve desired ends without a comprehensive
approach that recognises the interrelationship between various reforms and their results,
let alone between legal reform and the broader goals of peacebuilding. For instance,
in any attempt to improve law and order, a focus solely on criminal law and police
reform will likely be ineffective if corrupt judges release criminals, and prisons allow
criminal networks to continue operating across prison walls. Training judges, ensuring
judicial independence, improving prison services, strengthening judicial institutions, court
structures, prosecutorial services: each is implicated.53
A further concern is that rule of law improvements in one area may actually undermine
those in others. For instance, strengthening the judicial independence needed to protect
against government abuse of power may be in tension with efforts to eliminate corruption
in the judiciary. Similarly, a myopic concern with the protection of foreign investors’
private property rights and the enforcement of their contracts may be in tension with
efforts, legal or otherwise, to support poor citizens and indigenous communities.
Despite repeated calls for a ‘comprehensive approach’, this has remained an elusive goal
for most rule of law components of peacebuilding, which have tended to be short-term
and piece-meal in both design and practice. Notwithstanding a theoretical edifice in which
rule of law and peacebuilding are interconnected, self-reinforcing elements, in practice a
53
Rachel Kleinfeld, ‘Competing Definitions of the rule of Law’, in Thomas Carothers
(ed.), Promoting the Rule of Law Abroad: In Search of Knowledge (Carnegie Endowment for
International Peace 2006) 41.
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comprehensive approach has meant little more than placing every and all activities within
these areas under a single rhetorical banner. An actual integrated approach to reach
specific societal goals, in this case, peace and democratic governance, remains unrealised.
Broad Rhetoric, Narrow Focus
Notwithstanding rhetoric about a comprehensive approach – governance-oriented,

people-centred, democratic, accountable, legitimate and efficient – pursuant of the
wider goals of peacebuilding, when moving from conception to actual practice, law
reform efforts have tended to narrow dramatically in ambition. Substantively varied and,
inevitably, long-term programmes of reform have rarely been implemented.
The focus on formalism over substance can be seen, for example, in the EU’s mission
in Guinea-Bissau, where the immediate implementation of shallow legislative reforms
displaced concern with investment in long-term substantive reform commitments.54
Structural transformation – recognised, at least rhetorically, as essential to self-sustaining
peace – remains out of reach. Legislative reform is of course an important aspect of the
justice and security sectors, and any institutional restructuring will necessarily have its
counterpart in the relevant legal framework. But, here, as in many missions, ambition
has gone no further than changing, so to speak, the ‘law on the books’. This criticism
points to a narrow and shallow form of intervention on the part of donors, one that
displaces ‘thick’ versions of the rule of law and instead advances a formalist approach
– a liberal checklist of mostly technical and fragmented reforms, which have in practice
proven inadequate to foster concrete and sustainable change in challenging post-conflict
contexts.
Indeed, in many cases, reforms have privileged quantity over quality. That is, easily
measurable outputs – such as the number of international treaties signed, of laws drafted,
of judges trained or of courts built – have replaced the normative and cultural work of
consulting the community, incentivising debate over norms and genuinely incorporating
them into daily practices and expectations. As Helen Durham reminds us, this donor
mindset was clearly illustrated by the UN’s rejoicing of Liberia’s accession to 103 treaties
on a single day, in 2005, dismissing pertinent concerns over the country’s technical and
financial capacity to actually implement such international obligations.55
Moreover, donors often adopt a myopic focus on narrow areas of reform at the expense
of other areas. For example, in both Cambodia in the early 1990s and East Timor a
decade later, a focus on military reform and electoral assistance was accompanied by a
failure to address institutional weaknesses and the development of a sustainable judicial
system.56 They also increasingly adopt a business-oriented focus to rule of law reform
activities, concentrating on securing the private property rights of international investors
54
See Teresa Almeida Cravo, What’s in a Label? The Aid Community’s Representations of
Success and Failure in Mozambique and Guinea-Bissau. Doctoral thesis, Department of Politics and
International Studies, University of Cambridge, 2012.
55
Durham (2009) 189.
56
Kuong Teilee, ‘Transitional Justice in Cambodia: A New Challenge to the Development
of Rule of Law?’, Per Bergling et al. (eds), Rule of Law Promotion: Global Perspectives, Local
Applications (Iustus Förlag 2009) 151–73; Susanne Alldén and Ramses Amer, ‘The United Nations
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and entrenching neoliberal contractarian market relations, thus diminishing labour

protection regimes and overlooking the legal concerns of subaltern citizens, which, in
turn, exacerbates grievances which can precipitate violent conflict.57
Maintenance of Illiberal Regimes
In numerous cases the establishment of rule of law programmes has not prevented
the persistence of authoritarian regimes in recipient countries. In fact, conceived in
its thin, procedural form, the rule of law is not necessarily incompatible with illiberal
or even repressive regimes.58 Where reform is focused narrowly, it may even become a
coercive instrument to suppress dissident political activities. For instance, in Nigeria, anti-
corruption laws have been manipulated to target political opponents. Moreover, a narrow
focus on the formal legal equality of individuals before the law may actually obscure (or
even legitimate) a markedly unequal social order and the grievances that give rise to social
conflict. For example, in labour disputes the law is applied neutrally with workers and
owners of capital treated as equals. With the celebration of the juridical equality of all
citizens and the neutrality of the law, power relations and broader questions regarding
the distribution of and access to material and cultural resources in society that constrain
the enjoyment of formal freedoms risk being eclipsed.
Lack of Rights Awareness and Legal Empowerment
Narrow and haphazard approaches to law reform are often associated with inattention to,
or even disregard for, the quality of access to justice, especially for those most marginal-
ised and excluded in conflict-ridden societies. A checklist of formal rules and institutions,
no matter how extensive, will always be insufficient. For example, even though they are
recognised in law, citizens’ rights can be dramatically limited simply by difficulties in
accessing courts and legal services. No less important is increased awareness, both of
officials’ obligations and individuals’ rights. People will only use legal protections and
avenues for dispute resolution if they know about them. Individuals, but especially the
poor, need skills and knowledge to access the legal protections that may be theoretically
available, but otherwise difficult to obtain. An important aspect of rule of law reform is
thus necessarily legal empowerment. Yet, reforms have not focused enough on broadening
awareness and access to justice – be it in the form of judicial courts or alternative dispute
resolution mechanisms.59
and Peacekeeping: Lessons Learned from Cambodia and East Timor’, in Per Bergling et al. (eds.),
Rule of Law Promotion: Global Perspectives, Local Applications (Iustus Förlag 2009) 111–27.
57
See Tor Krever, ‘The Legal Turn in Late Development Theory: The Rule of Law and the
World Bank’s Development Model’, Harvard International Law Journal, 2011, vol.52, 287–319.
58
For a debate on the dynamics of judicial politics in non-democracies, see Tom Ginsburg and
Tamir Moustafa (eds), Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge
59
See Stephen Golub, ‘Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative’,
Carnegie Endowment for International Peace Working Paper – Rule of Law Series, October 2003,
no 41.
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Gender Equality and Women’s Rights
One group in particular often excluded from formal, state-centric rule of law is women.
Recent efforts by international donors have seen the mainstreaming of a gender perspec-
tive into the policy and practice of rule of law reform. Two assumptions have undergirded
this development: that gender equality is fundamental for peace and development; and
that gender-sensitive legal frameworks have to take into account, and give space for,
women’s experiences of both violence and peacebuilding.
The first has led to attempts at eliminating all existing forms of gender discrimination
under the law and the drafting and implementation of relevant legislation for the protec-
tion of the rights of women and girls and the promotion of equality, both during and
after armed conflicts. A specific focus of attention has been the protection of women
from gender-based violence perpetrated by belligerents in a conflict. But a wider net is
also cast, with efforts to ensure women’s capacity to claim rights and access resources
to exercise them. Empowering women in the legal sphere, in this respect, is seen as
directly translating into gains for society as a whole with, for instance, increased food
security, health, and schooling flowing from such reforms.60 The second assumption was
highlighted by the UN Security Council Resolution 1325 in 2000,61 which recognised the
importance of the role of women in conflict prevention, resolution and peacebuilding
and called for their representation and participation, on an equal basis, in all efforts
towards peace and security. The resolution emphasised the idea that the sustained
involvement of women was a necessary condition to both understanding and eliminating
violence.
Ultimately, the goal of these interventions within the scope of the rule of law is to trans-
form societal structures towards gender equality in post-conflict settings, as an essential
contribution for a more peaceful society. Here too, however, results have been limited.
As Amy Maguire reminds us, ‘prevailing patriarchy’ remains ‘a key limitation on law’s
power to protect’ and advance women’s rights and needs.62 ‘Legal silences’ persist, ‘created
or entrenched by the marginalisation of women from lawmaking’63 and their particular
contributions seldom penetrate the decision- and policy-making spheres.64 An emphasis
on victimhood, the persistence of the ‘women-and-children’ label, which assumes both as
equally vulnerable, a lack of literacy, experience and visibility, and cultural expectations
that women return to more traditional roles when war ends, all remove women’s agency
and capacity to transform their environment, risking shutting them off from the political
and public life.65 As such, the structures that fuelled inequality, insecurity and violence
often remain in place.
60
See Rachel Sieder and John-Andrew McNeish (eds), Gender Justice and Legal Pluralities:
Latin American and African Perspectives (Routledge 2013).
61
United Nations Security Council Resolution S/RES/1325(2000), 31 October 2000.
62
Amy Maguire, ‘Security Starts with the Law’: The Role of International Law in the
Protection of Women’s Security Post-conflict’, in Brett Bowden et al., The Role of International
Law in Rebuilding Societies after Conflict: Great Expectations, 2009, 225.
63
Ibid., 227.
64
Ibid.
65
Ibid., 218–43.
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Dismissing the Plural Legal Landscape
International actors have often been accused of being insensitive to the plurality of
legal systems that may exist and operate in post-conflict countries. The rule of law
advocated by such actors, in its thin or thick incarnations, is, with its focus on individual
rights and state-centred institutions, a distinctly liberal western conception. In Aceh,
for example, attempts to institute a formal land titling system clashed with traditional
community-based land systems.66 Similarly, in Somalia, efforts to strengthen individual
rights conflicted with customary systems of communal and shared rights and duties over
land, water and crops.67 Dispute resolution systems are also often community based,
operating through informal institutions rather than a formal, state-organised system of
courts and judicial bodies. ‘Many people live under plural legal constellations’;68 to focus
exclusively on the formal system and exclude or even dismiss these alternate legal orders
undermines the legitimacy of reforms and may ultimately undermine citizens’ access to
law and justice.69 Especially since the main providers of justice for the majority of the
population – informal and/or traditional institutions – are largely outside the spectrum
of these reforms. It is easy for a European expert to fly in and proclaim the importance
of, say, increasing the efficiency of courts. But if most day-to-day disputes are in practice
resolved through informal community institutions, even a successful efficiency-boosting
reform will have little impact on the regular lives of citizens.
Some international donors70 have started to recognise the advantages of traditional
community justice mechanisms: they are more culturally and linguistically familiar to
parties, have lower costs, and are often based on conciliation and mediation rather than
the adversarial model of European and American justice systems. This is not to say that
all forms of community justice are democratic; indeed, some reproduce social inequali-
ties and there is a risk of creating an ‘ethnic law’ for de facto second-class citizens.71 Yet,
acknowledging the normative heterogeneity present in most societies and the porosity
between different legal norms presents an opportunity to strengthen more democratic
forms of justice and the means to better induce compliance. Exploring the complex and
66
See Arthur Green, ‘Title Wave: Land Tenure and Peacebuilding in Aceh’, in Jon Unruh and
Rhodri Williams (eds), Land and Post-conflict Peacebuilding (Routledge 2013) 293–319.
67
See Andre Le Sage, ‘Stateless Justice in Somalia: Formal and Informal Rule of Law
Initiatives’, Centre for Humanitarian Dialogue Report, July 2005, available at https://www.files.ethz.
ch/isn/20303/Somalia_stateless_justice.pdf (accessed on 10 July 2017).
68
Franz von Benda-Beckmann et al., ‘Space and Legal Pluralism: An Introduction’, in
Franz von Benda-Beckman and Keebet von Benda-Beckmann (eds), Spatializing Law: An
Anthropological Geography of Law in Society (Ashgate 2009) 4.
69
See Boaventura Sousa Santos et al. (eds), Law and Justice in a Multicultural Society: The
Case of Mozambique (CODESRIA 2006).
70
See, for instance, Department for International Development (DFID), ‘Non-State Justice
and Security Systems’, DFID Briefing, May 2004, available at http://www.gsdrc.org/docs/open/
ssaj101.pdf (accessed on 10 July 2017); Ewa Wojkowska, ‘Doing Justice: How Informal Justice
Systems can Contribute’ (United Nations Development Programme 2006), available at http://
www.eldis.org/vfile/upload/1/document/1201/UNDP%20DoingJusticeEwaWojkowska130307.pdf
(accessed on 10 July 2017).
71
Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late
Colonialism (Princeton University Press 1996).
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hybrid legal landscape, instead of revising the legal framework of war-torn states to
model that of western states, accounts better for local social and cultural understandings
and practices of justice, ultimately facilitating enforcement and the promotion of peace.
Experiences of legal pluralism, such as in Mozambique, East Timor or Afghanistan,
point to a more productive way of assisting in the implementation of a rule of law that
strengthens non-violent relations as the norm and simultaneously secures accessibility to
and legitimacy among local actors of both formal and traditional justice systems. But they
are far from being the norm.
Legal Transplants and the Liberal Peace
It is tempting to see the post-conflict setting as a clean slate onto which a new rule of law
can be introduced. Such a view has encouraged the wholesale transplantation of western
legal institutions and cultural societal models, with little appreciation for local contexts
or the substantive peacebuilding goals that such reforms are intended to advance. Past
experience suggests that many societies and institutions are resistant to formal legal trans-
plantation, while transplants often have unpredictable or even counterproductive effects.72
Even today, the local political and economic dynamics that underpin both enactment of
and resistance to reforms are often ignored, with the drafting of legal blueprints guided by
western standards. The growing embrace of legislative reform as the main step to solve the
problem of instability in the periphery reflects the imposition of a discourse and practice of
expert knowledge, which disregards political specificities and local attempts to reconfigure
the meaning and contents of these reforms. Such legal transplants contribute to the hol-
lowing out of everyday politics in the reconstruction of the state’s governance architecture.
The technical approach revealed by donor practice dismisses, or at least ignores, the politics
inherent to any substantive reform in societies torn by conflict. Such reforms will regularly
impact the political, military and economic elites of recipient countries, confronting their
power and economic status. Ambivalence about reform programmes by local elites can be
expected and addressing their fears and finding drivers for change in the face of potential
opposition needs to be an essential dimension of any assistance. Likewise, any number of
legal and institutional reforms can be introduced but will likely prove insufficient for the
rule of law to operate in a society unless accompanied by a culture of respect.
Proposing a one-size-fits-all model, donors often fail to focus on the idiosyncrasies of
each post-conflict context, disregarding the input of local actors and their precise needs
and priorities. As such, most interventions lack a coherent strategy tailored to the specific
objectives of the country and society concerned. The result is that the prescribed recipes
to tackle weaknesses and gaps – at least those apparent when recipient countries are com-
pared with western states – often do not actually engage with the specific nature of state-
society relations or address the specific local sources of insecurity or arbitrary exercises
of power. Rather, they tend to be a technical and standardised set of legislative proposals
and capacity-building tasks, usually guided by the deployment of expert advisers. In this
context, not only is the reform top-down – rather than bottom-up – but also aligned with
donors’ values and interests – rather than with the targeted population’s needs and wishes.
72
David Trubek and Marc Galanter (1974) 1062–102.
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Lack of Legitimacy and Local Ownership
Notwithstanding claims of support for local ownership and donors’ need to ‘avoid supply-
driven technical assistance’73 which permeate aid rhetoric, rule of law promotion remains
informed and undergirded by a liberal ethos and a practice of expert knowledge. This
exercise in legal transplantation is thus characterised by low involvement of local authorities
and the local population, from consultation to planning, as well as low commitment, with
national strategies often written for donor approval and, most importantly, funding. The
lack of understanding of internal political dynamics has led foreign actors to underestimate
resistance from local authorities towards these transplantation efforts, as well as political
interference with the reforms adopted on paper. In fact, many interventions demonstrate
the constraints to real and profound national transformation through a thin, top-down and
external exercise of reform promotion with a tendency for ‘quick fixes’ and short-term goals.
The rule of law is not simply the sum of legislation, courts, legislatures, police and other
legal institutions. ‘Law is also a normative system that resides in the minds of the citizens
of a society’ and, as such, reforms are supposed to look not only to build institutions,
but also ‘to intervene in ways that would affect how citizens understand, use, and value
law.’74 Any number of legal and institutional reforms will be insufficient for the rule of
law to foster peace, unless they are accompanied by widespread acceptance across society:
individuals and organs of state power – such as the executive, legislature, police, armed
forces, etc. – must recognise that they are subject to the law and operate according only
to those powers consistent with the rule of law.75 So, for example, if one wants to address
issues of law and order, improving the operation and reliability of a country’s police and
courts may be an important step, but individuals’ compliance with the law will be equally
a product of the perceived legitimacy of the law and, in turn, the legitimacy of political
law-making processes. Of course, such respect will develop over time as the law is shown
to address and respond to the needs of individuals and groups.
In the short term, however, legitimacy can be enhanced through the local ownership
of rule of law reform projects, pursued through consultative processes, not only with
political or economic elites, but also those broader segments of the population directly
affected by reform. Where international actors, impatient with drawn-out processes of
local consultation and local ownership, delineate reforms unilaterally, as happened in the
EU’s mission in Georgia76 or in Guinea-Bissau,77 countries may end up with laws or even
73
OECD, OECD DAC Handbook on Security System Reform: Supporting Security and
Justice (OECD 2007) 86.
74
Thomas Carothers, ‘The Problem of Knowledge’, in Thomas Carothers (ed.), Promoting the
Rule of Law Abroad: In Search of Knowledge (Carnegie Endowment for International Peace 2006)
20–21.
75
Erik Wennerström, ‘Measuring the Rule of Law’, in Per Bergling et al. (eds), Rule of Law
Promotion: Global Perspectives, Local Applications (Iustus Förlag 2009) 65.
76
Xymena Kurowska, ‘The Rule-of-law Mission in Georgia (EUJUST Themis)’, in Giovanni
Grevi et al. (eds.), European Security and Defence Policy: The First Ten Years (1999–2009)
(European Union Institute for Security Studies 2009) 201–9.
77
Caroline Bahnson, ‘The European Union and SSR in Guinea-Bissau’, in Magnus Ekengren
and Greg Simons (eds), The Politics of Security Sector Reform: Challenges and Opportunities for the
European Union’s Global Role (Ashgate 2010) 259–72.
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constitutions written by foreign experts that ‘are never accepted or implemented by the
national stakeholders’.78
Ideology Critique
This narrow, myopically western-oriented approach to rule of law reform largely mirrors
the ideological contours of the liberal peace to which peacebuilding initiatives have
increasingly conformed. In other words, rule of law reform and the thought and practice
of contemporary international interventionism share an ideology which critical authors
have denounced for (re)producing the biases and inequalities of the international system.79
Both the liberal peace and the rule of law are western hegemonic models of interven-
tionism – hierarchical, centralised and elitist. They promote western culture, identity
and norms at the expense of others,80 hence the recurrent analogies with colonialism.
The structural problems of the design and implementation of both the peacebuilding
model and rule of law reform are thus seen in their relationship with the inequality of
the international system: interventions impose a top-down model, create and reinforce a
clear hierarchy between interveners and the intervened, and act as an instrument of global
governance of the west in the periphery, thus contributing to power asymmetries between
the global north and south. In particular, the transplantation of a liberal legal framework
into post-war scenarios consolidates and legitimises the west’s hegemony, defends its
geostrategic interests and promotes its values.81
Notwithstanding some internal divergence amongst specific authors, this critique, as
a whole, effectively puts in question: (1) the goodwill of the intervention model, drawing
attention to the imperialist features of the paradigm and the way it serves the interests
and particular agendas of Northern countries in the South; (2) its nature, challenging
the centrality of security (which favours order and stability at the expense of emancipa-
tion) and its elitist, technocratic and standardised essence; (3) its legitimacy, questioning
the presumption of the universality of western liberalism and its eurocentrism, imposed
at the expense of local participation; and (4) its efficacy, stressing the maintenance
and reproduction of the very violence they were ostensibly meant to solve,82 depend-
ency on external actors and the adverse consequences of downplaying endogenous
contributions.
78
Shelby Quast, ‘Rule of Law in Post-conflict Societies: What is the Role of the International
Community?’, New England Law Review, 2004, vol.39, 47.
79
See, for example, Duffield (2001); Michael Pugh, ‘The Political Economy of Peacebuilding:
A Critical Theory Perspective’, International Journal of Peace Studies, 2005, vol.10(2), 23–42;
David Chandler, Empire in Denial: The Politics of State-building (Pluto 2006); Philip Darby,
‘Rolling Back the Frontiers of Empire: Practising the Postcolonial’, International Peacekeeping,
2009, vol.16(5), 699–716.
80
Kristoffer Lidén, ‘Peace, Self-governance and International Engagement: From Neo-
colonial to Post-colonial Peacebuilding’, in Shahrbanou Tadjbakhsh (ed.), Rethinking the Liberal
Peace: External Models and Local Alternatives (Routledge 2011) 57.
81
See David Chandler, ‘The Uncritical Critique of Liberal Peace’, Review of International
Studies, 2010, vol.36(1), 137–55.
82
Mark Duffield (2001); Michael Pugh (2005).
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CONCLUSION
The reality of societies devastated by war has proven far more complex than anticipated
by foreign actors that take on peace-promotion activities today. The prioritisation of
rule of law reform in war-torn countries in the last two decades, within the context of
peacebuilding, as a recipe for building national, regional and international peace in places
where violence and insecurity reign, has been far from easy or consensual.
Rule of law reform appears to have followed a similar pattern observed of peacebuild-
ing more broadly. Peacebuilding, a conception that sought to broaden understandings of
peace and its social basis, has given way to a narrower so-called Liberal Peace. In turn,
rule of law promotion has all too often become synonymous with the transplantation of
liberal legal frameworks into the state institutional apparatus. The pattern of intervention
is one in which intervener applies beyond its borders its own experience within. This
has led to a blueprint of western liberal prescriptions which war-ravaged countries are
expected to follow. Rule of law activities have, in short, reinforced international peace-
building’s distinctly western modus operandi. Such an understanding of rule of law reform
has undermined, or at the very least impeded, efforts to curb instability and hitherto
unfulfilled the goal of building a sustainable peace in the periphery.
The appreciation of rule of law reform in contexts of peacebuilding and as a response
to extreme levels of violence plaguing the system cannot therefore fail to reveal an impact
that is at least disappointing and often counterproductive. Certainly the embrace of
peacebuilding and the attendant willingness to go beyond the militarised model of nega-
tive peace should be celebrated, as should the renewed commitment of the international
community towards the periphery devastated by violence. Nonetheless, scepticism about
international efforts have clearly been justified. The limitations in the way peacebuild-
ing in general, and rule of law reform as a peacebuilding tool in particular, have been
conceived and materialised on the ground remain a serious concern and will continue to
plague the peacebuilding endeavour.
ACKNOWLEDGMENTS
The author would like to thank the editors, Christopher May and Adam Winchester, as
well as Tor Krever for comments on an earlier draft. The author also wishes to grate-
fully acknowledge the financial support of the Portuguese Foundation for Science and
Technology through her post-doctoral research grant (SFRH/BPD/89773/2012).
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29. Rule of law in Asia: The case of China
Thomas E. Kellogg*
There is no single mode of legality, no lone pathway toward the rule of law, in the Asian
context. As befits a region of remarkable racial, ethnic, and cultural diversity, the legal
systems across the region vary, in some cases quite widely. From the vibrant constitutional
democracy of India to the classic totalitarian state of North Korea, there is no one model
of legality that can be said to define or describe a particularly Asian rule of law.
That said, there are some regional and sub-regional affinities. In East and Southeast Asia,
for example, the rule of law and legal development have often been viewed through the prism
of the developmental state and its goal of rapid economic growth. Indeed, many states in
the region first embraced legal institutions and norms as a means of attracting foreign
capital, which was needed to jump-start economic growth. Such states – including pre-war
Japan, pre-democratic Taiwan and South Korea, contemporary Singapore and Malaysia,
and sub-national jurisdictions like Hong Kong – have used law both as a tool of domestic
social control and as a crucial vehicle to facilitate foreign direct investment. While states like
South Korea can be said to have graduated, so to speak, to full constitutional democracy
with strong legal institutions and deep political commitment to the rule of law, other states,
including Malaysia and Singapore, remain committed to the strange and contradictory
mixture of law and authoritarianism that is often referred to as ‘authoritarian legality.’
For some time, scholars have recognized that authoritarian regimes might self-inter-
estedly and selectively embrace certain elements of the rule of law.1 Authoritarian rulers
seek to selectively gain certain benefits that can be had from increased legalization. The
potential benefits are many, including improved social control, stronger political legitima-
tion, improved governance, increased ability to attract international investment, or the
legalisation of thorny political questions.2 At the same time, authoritarian regimes want
to avoid other, less attractive (from their perspective) aspects of the rule of law, including
judicial protection of individual rights or legislative oversight of executive authority.
As this dichotomy shows, the move to partially embrace legal values, norms, and institu-
tions carries with it certain risks. How best can those risks be managed, and how does
an authoritarian regime strike the right balance between the authoritarian and the rule
of law elements of authoritarian legality? This question has vexed both Chinese scholars
and Chinese officials alike since the reintroduction of legality as a core governance tool
in the late 1970s.
* All websites were live at 19 April 2018.

1
Peter H. Solomon, ‘Courts and Judges in Authoritarian Regimes,’ (October 2007) 60(1) World
Politics 122–45.
2
This list is drawn from Tamir Moustafa and Tom Ginsburg, ‘Introduction: The Functions of
Courts in Authoritarian Politics,’ in Rule by Law: The Politics of Courts in Authoritarian Regimes,
Tom Ginsburg and Tamir Moustafa (eds) (New York, NY: Cambridge University Press, 2008),
2–11.
490
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Rule of law in Asia 491
Authoritarian legality has sometimes been characterized as using law to open to the
outside world, while at the same time using legal tools to maintain more control over the
domestic scene. Some scholars have argued that the dichotomy between economic law
and other areas of law best describes China’s approach to authoritarian legality: Chinese
officials have an interest in tying their own hands when it comes to commercial matters,
so as to affirm to investors that their investment dollars would be protected by law, and
enforced by strong legal institutions.3
For many would-be reformers in China, the hope was that economic and commercial law
reforms would launch something of a virtuous circle of legal reform. The idea was simple,
if elusive in practice: the development of legal institutions to attract and manage interna-
tional investment would spread. Over time, more citizens would demand the same legal
protections that the state extended to private economic interests. Building on that private
law foundation, rule of law values and practices could be extended outward, to embrace
first less sensitive areas (including criminal justice for ordinary, non-political crimes, or
anti-discrimination law protections for women or migrant workers), and then more sensitive
ones (such as basic constitutional rights protections enforced by Chinese courts).
And in the early years of the reform era, this precarious balance did, more or less,
describe China’s approach. In the early 1980s, China set about resurrecting its legal
system. A core goal was to create the legal conditions necessary to attract international
investment. At the same time, the Party, nudged by a growing cadre of young lawyers
and other advocates, moved to apply legal values and processes to a growing number of
non-economic spheres. Many began to hope that the CCP would allow itself, eventually, to
be more tightly bound by a genuine constitutional order, and only exercise political power
through legally-bound government institutions.
Experts differ as to when the Party shifted away from legal reform as a key element of
its overall reform package.4 But there is general consensus that the trend has accelerated
since Xi Jinping took office in 2012. Over the past five years, many of the core elements
of the legal authoritarian playbook have been de-emphasized, or in some cases jettisoned
altogether. In particular, the Xi regime has stepped away from authoritarian legality in
two key ways: first, legal reform has been de-emphasized as a key element of the regime’s
political legitimation strategy, and its substantive commitment to legal reform has been
scaled back. Second, the CCP’s commitment to rule of law as a means of attracting foreign
investment has waned, as has its commitment to use law as a bridge to the international
community more generally.
3
Yuhua Wang, Tying the Autocrat’s Hands: The Rise of the Rule of Law in China (New York,
NY: Cambridge University Press, 2015), 3. According to Wang, ‘I define the rule of law that exists
in authoritarian regimes as a partial form of the rule of law in which judicial fairness is usually
respected in the commercial realm, but not in the political realm.’ See also Randall Peerenboom,
China Modernizes: Threat to the West or Model for the Rest? (Oxford, UK: Oxford University
Press, 2008).
4
For an excellent discussion of the shifts in Beijing’s policy toward legal reform, see Carl F.
Minzner, ‘China’s Turn Against Law,’ (2011) 59 American Journal of Comparative Law 935–84.
See also Hualing Fu and Richard Cullen, ‘From Mediatory to Adjudicatory Justice: The Limits of
Civil Justice Reform in China,’ in Chinese Justice: Civil Dispute Resolution in Contemporary China,
Margaret Y. K. Woo and Mary E. Gallagher (eds) (New York, NY: Cambridge University Press,
2008), 25–57.
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Primarily, law and legal reform as an element of state legitimation has been scaled back,
replaced, at least in part, by the anti-corruption campaign and appeals to nationalism. At
times, top leaders have explicitly rejected reforms that would allegedly ‘Westernize’ China’s
legal system. In a January 2017 speech, for example, Supreme People’s Court Chief Judge
Zhou Qiang warned against any efforts to push for judicial independence or separation of
powers, and urged Chinese judges to ‘show the sword’ against such threats.5
Such statements are common among senior CCP officials. What made Zhou Qiang’s
comments stand out was the fact that he, as one of the country’s top legal officials, was
leading the rhetorical charge against liberal legal reform. The comments were especially
troubling given Zhou Qiang’s reputation as a moderate reformer, genuinely committed to
the development of the rule of law.
Some observers downplayed Zhou’s remarks, suggesting that he was merely regurgitat-
ing the Party line, most likely in order to demonstrate his loyalty to the Party leadership.
At the same time, however, Zhou’s remarks also reflect the Party leadership’s own view,
that CCP political control over the courts must take precedence over any efforts to reform
the judiciary.6 Zhou’s speech, then, is a clear signal that wide-ranging reforms to China’s
judiciary, in line with the Singaporean authoritarian legality model, are not part of the
Party’s near-term agenda.7
Senior Party leaders are not merely altering their rhetorical approach to legal reform;
more importantly, over the course of Xi Jinping’s tenure, the Party’s commitment to
substantive legal reform has been scaled back. Since Xi Jinping took office, progress on
legal reform has advanced at a snail’s pace. Large-scale institutional reforms that would
improve the functioning of the courts, of national and local legislatures, and of key
government agencies, have remained largely off the table. In some cases, the Party has
suggested that progressive legal reforms should be undone. Some officials have suggested
changes to the 2008 Labor Contract Law that would reduce worker protections, for
example.8
To be sure, the Party has not completely abandoned legal reform as part of its legiti-
mation strategy. At times, even Xi Jinping himself has called for constitutional reform,
although he has remained vague about what such reforms might entail.9 For his part,
Zhou Qiang has pushed some reforms that would strengthen judicial autonomy. Yet
the changes that Zhou has proposed will not set China towards the level of rule of law
enjoyed by key authoritarian legality states like Singapore and Hong Kong; nor are they
intended to. Overall, the Party seems less interested in maintaining its legal reformist
5
Michael Forsythe, ‘China’s Chief Justice rejects an independent judiciary, and reformers
wince,’ New York Times, January 18, 2017.
6
Chang Ping, ‘Chang Ping Canguan: Fan Sifa Duli – Haizi yu Liumang’ [Chang Ping
Commentary: Anti-Judicial Independence – Children and Hooligans], Deutsche Welle Chinese
Service, January 19, 2017.
7
Stephan Ortmann and Mark R. Thompson, ‘China and the Singapore Model,’ (January
2016) 27(1) Journal of Democracy 39–48.
8
Aaron Halegua, Who Will Represent China’s Workers? Lawyers, Legal Aid, and the Enforcement
of Labor Rights, New York: New York University School of Law U.S.-Asia Law Institute (2016), 5.
9
Thomas E. Kellogg, ‘Arguing Chinese Constitutionalism: The 2013 Constitutional Debate
and the ‘Urgency’ of Political Reform,’ (2016) 11(3) University of Pennsylvania Asian Law Review
337–407.
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credentials, and has redoubled its efforts to find and develop other sources of potential
political legitimacy.
Second, the Party has stopped using law to facilitate the flow of international goods
– including not just investment capital, but also expertise, ideas, cultural products, and
civil society contacts, among others – into China. Simply put, the Party no longer sees
law as a bridge to the outside world. More often over the past five years, new laws have
been used to limit or control international engagement. The Foreign NGO Law is perhaps
the best-known such law, but it is but one of many new laws that restrict international
engagement, commercial or otherwise, inside China.
As noted above, authoritarian legality regimes generally tend to use law to
facilitate international investment. Before it joined the WTO in 2001, the Chinese
government engaged in a massive overhaul of its economic and trade laws, seeking
to bolster China’s status among international investors. The push to join the WTO
in the late 1990s was preceded by an explosion of outward engagement in the 1980s,
when China’s thirst for external ideas was fuelled in part by a desire to end the PRC’s
decades-long estrangement from the world, from 1949 to 1976. In many ways, the
Party itself led the charge to deepen international engagement, adopting slogans
like zou xiang shijie (‘stride toward the world’), and yu guoji jiegui (‘link up with the
international’).
While there have been various periods of retrenchment over the years, including after
the June 4, 1989 Tiananmen Square crackdown, nonetheless many international actors
operating inside China – including multinational companies, American and European
universities, Western philanthropic entities, and non-governmental organizations –
assumed that, over time, China would indeed become increasingly open to the global
community.10
The past five years have dashed those hopes. On the commercial side, Western com-
panies are increasingly critical of new laws and practices that are seen as protectionist.
Laws and institutions meant to facilitate corporate entry into China are less welcoming
than they once were.11 Many top international firms have expressed concern about
growing protectionism in China, and some firms operating in particularly crucial sectors
worry that they may be targetted by state regulatory bodies. In an April 2017 report, the
American Chamber of Commerce in China expressed concern that the business environ-
ment had reached its lowest point in decades, and lamented that ‘(t)he pace of economic
reforms and market opening has been slow and faltering’.12
Some companies have encouraged their home country governments to push back
against Beijing. ‘German companies here feel that there has been a considerable rise
in protectionism,’ Germany’s ambassador to China, Michael Clauss, told a Reuters
journalist. ‘We are receiving more and more complaints, especially since the beginning of
10
For a critique of this view, see James Mann, The China Fantasy: How Our Leaders Explain
Away Chinese Repression (New York, NY: Viking Penguin, 2007), 1–27.
11
Michael Martina, ‘U.S. lobby says China protectionism fueling foreign business pessimism,’
Reuters, January 18, 2017.
12
Bloomberg News, ‘U.S. Firms in China Face Worst Conditions in Decades: AmCham,’ April
17, 2017.
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this year.’13 In March 2017, several key American tech companies raised concerns with
their US Congressional representatives, who in turn wrote to Chinese Ambassador to
the US Cui Tiankai to urge China to reverse course on ‘fundamentally protectionist and
anticompetitive’ draft regulations on cloud computing services.14
It is possible, of course, that the negative trend could be reversed. But as of this
writing, there is no sign that Beijing will amend the various new laws meant to limit
international engagement, or pass new laws to facilitate international entry. It seems
more likely that the use of law as a filter or even a barrier to international investment
will continue.
In the sections that follow, I discuss constitutional development in China as a window
into the use of rule of law ideals to pursue political ends. In particular, I argue that the
Chinese Communist Party uses constitutionalist rhetoric to bolster its political legitimacy,
rather than as a signal that genuine progressive legal reforms are in the offing. This
approach has undercut the development of strong and independent legal institutions,
thus limiting the progress that the Chinese legal system as a whole has made toward the
rule of law.
AUTHORITARIAN CONSTITUTIONALISM AND CHINA
Any debate over the political and legal relevance of the Chinese constitution, or of
authoritarian constitutions in general, starts with a simple question: why bother? What
positive role can a constitution play for a regime that, in most cases, has no intention of
following its precepts?15 Why are constitutions of such value to authoritarian rulers that
virtually every authoritarian regime – from the neo-totalitarian Kim dynasty in North
Korea to the soft authoritarian regimes in Malaysia and Singapore – adopts one?16 For
its part, China has adopted four separate constitutions during the 65-year history of
the People’s Republic, and has amended the most recent 1982 Constitution four times,
in 1988, 1993, 1999, and 2004.17 Surely such extensive attention to constitutional draft-
ing and re-drafting suggests that authoritarian rulers see some benefit to creating and
maintaining a constitutional document.
13
Ben Blanchard, ‘Germany says receiving growing protectionism complaints in China,’
Reuters, December 2, 2016.
14
Sui-Lee Wee, ‘As zeal for China dims, global companies complain more boldly,’ New York
Times, April 19, 2017.
15
Tom Ginsburg and Alberto Simpser (eds) Constitutions in Authoritarian Regimes (New York,
NY: Cambridge University Press, 2014) 2.
16
For an extended analysis of whether a genuine form of authoritarian constitutionalism could
exist in certain soft authoritarian regimes, see Mark Tushnet, ‘Authoritarian Constitutionalism:
Some Constitutional Issues’, Ginsburg and Simpser, ibid., 36, 36–49.
17
Because the 1982 Constitution was adopted in the early years of the Reform Era, it is gener-
ally seen in the Chinese context as a foundational political document that helped launch China’s
decades-long run of rapid economic growth. The 1982 Constitution embraced market reforms,
and signalled clearly to the Chinese public that the CCP wanted to focus on domestic stability and
economic growth, rather than on (as in decades and constitutions past) Marxist orthodoxy and
class struggle.
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Ginsburg and Simpser identify four key functions of constitutions in authoritarian

states: they can act as operating manuals; billboards; blueprints; and window dressing.18 Not
every element of an authoritarian constitutional document is false. For many authoritar-
ian rules, maintaining a constitutionally-mandated allocation of authority between
different state actors can be beneficial, even though doing so may limit the ruler’s freedom
of action. As Ginsburg and Simpser point out, adherence to such a constitutional
structure might lessen the likelihood of friction or even conflict among different govern-
mental actors, and also encourage cooperation between intra-state elements by laying out
clearly-defined rules of the game.19 Ginsburg and Simpser call this the ‘operating manual’
function of an authoritarian constitution.
Admittedly, this function does have some limited applicability in the Chinese context.
Chinese officials, including many would-be reformists, put great stock in the preeminent
constitutional role of China’s legislative body, the National People’s Congress (NPC). The
NPC is granted extensive powers under the current (1982) Constitution, but given the
Party’s complete control of all state organs and the fact that no state actor can exercise its
constitutionally-vested powers independent of Party interference, the operating manual
function to Chinese constitutional practice is only slightly relevant.
Even those provisions of the Chinese constitution which are superficially adhered
to – those that limit senior officials to two terms in office, for example – are not fully imple-
mented.20 Throughout the reform era, it has been the practice of top officials to continue
to exercise power for years, even decades, after they formally relinquished their posts.21
In both authoritarian and liberal systems, perhaps the most common function of
constitutional documents is the billboard function, in which the ruling regime signals
to a domestic audience key political precepts. Because a nation’s constitution occupies a
prominent place – at least rhetorically, if not in practice, in authoritarian systems – in the
domestic political order, an amendment that signals a change in the authoritarian ruler’s
governing philosophy or policy direction can be seen as both authoritative and definitive.
Such a change can capture the attention of both the domestic polity and international
observers. This signals to both audiences that they should look closely at a change that
the regime itself sees as significant.
The CCP has made liberal use of the billboard function throughout its tenure. The
1954 Constitution, the PRC’s first such document, emphasized the leadership position of
the Communist Party, signalling the importance that the CCP placed on consolidating its
rule.22 The 1975 Constitution, with its extensive use of radical leftist rhetoric, is little more
18
Ginsburg and Simpser, supra note 15, 6.
19
Ibid.
20
Article 79 of the Constitution, for example, limits the President and Vice-President of the
PRC to two five-year terms. Xianfa art. 79 (China) (1982).
21
It is true, however, that succession politics have become more and more institutionalized over
the past two decades. See Andrew J. Nathan, ‘Authoritarian Resilience’, (2003) 14 J. Democracy 6.
However, this institutionalization process has largely been conducted by the Party rather than the
state. If the Party were to alter its approach, presumably the state structure would follow. More
importantly, Party hierarchies, including informal ones, continue to trump the formal constitu-
tional power structure and rules.
22
William C. Jones, ‘The Constitution of the People’s Republic of China’, (1985) 63 Wash. U.
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than a billboard for various extreme Cultural Revolution-era slogans.23 The adoption
of the 1982 Constitution, with its stronger pro-market reform and rule of law rhetoric,
was seen by many observers as the Party’s way of sending a message to both the Chinese
public and to the international community that China’s post-Mao leadership team was
serious about economic and legal reform.24 Subsequent amendments, including a series
of amendments in 2004 which reaffirmed the state’s role in protecting human rights,
strengthened language relating to private property rights,25 and generally sought to
reinforce these pro-market and legal reform messages.
Ginsburg and Simpser describe the window dressing role as ‘one in which the text is
designed to obfuscate actual political practice’.26 The rights provisions of the Chinese
constitution, which are not legally enforceable and are, in practice, regularly violated,
exemplify the window dressing issue. One probable reason authoritarian constitutions
include such provisions is that they are now considered de rigueur: without them, a con-
stitution is seen, especially by external observers, as incomplete and the absence of such
provisions would be so glaring as to undermine the entire document.27 In other words,
leaving out such window dressing would subvert the key legitimacy-enhancing goals of
the constitutional drafting project.
Finally, Ginsburg and Simpser argue that authoritarian constitutions can serve as
blueprints for future reforms, ‘describing things not as they are but as they might be’.28
As an example, Ginsburg and Simpser cite Mexico’s 1917 constitution, which contained
a number of progressive economic and social rights provisions including rights to land
and education for the Mexican peasantry. Although not legally actionable at the time
of their drafting, these provisions nonetheless may have influenced subsequent Mexican
land reforms which did in fact redistribute a significant amount of farmland to Mexican
peasants.29
One could argue that steps by the CCP to enhance the authority of the National
L. Rev. 707, 712: ‘[t]he 1954 constitution showed that the new government regarded itself as firmly
established. Military and political control were complete.’.
23
Jerome Alan Cohen, ‘China’s Changing Constitution’, (1978) 76 China Q. 794. Interestingly,
Cohen notes that the 1975 Constitution, adopted just as the Cultural Revolution was winding
down, may have incorporated many radical political slogans that, by the time the Constitution was
formally promulgated, were losing favour, ibid., 802–3. Pragmatists were gaining ground on the
radicals within the Party leadership, and they dimmed the lights on the radical billboard that had
been so painstakingly constructed.
24
Hungdah Chiu, ‘The 1982 Chinese Constitution and the Rule of Law’, (1985) 11 Rev.
Socialist L. 143. See also Jones, supra note 22.
25
Qianfan Zhang, The Constitution of China: A Contextual Analysis (Oxford: Hart Publishing,
2012) 57.
26
Ginsburg and Simpser, supra note 15, 7.
27
See Tom Ginsburg, Zachary Elkins and James Melton, ‘The Content of Authoritarian
Constitutions’, in Ginsburg and Simpser, ibid., 143: ‘there are very few statistically significant dif-
ferences between authoritarian and democratic constitutions when controlling for other factors . . .
[this convergence] indicates a continual process of lagged adaptation by authoritarians, who seek
to model their texts on those of their democratic counterparts.’
28
Ginsburg and Simpser, ibid., 8.
29
James J. Kelly, Jr., ‘Article 27, and Mexican Land Reform: The Legacy of Zapata’s Dream’,
(1994) 25 Colum. Hum. Rts. L. J., 541.
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People’s Congress30 and the quality and integrity – if not the independence – of the
judicial system31 are examples of the application of the blueprint role in the Chinese
context. In my view, the incomplete, even stalled nature of these reforms means that the
blueprint model is somewhat limited in its application in contemporary China.32 While
state organs exercise greater authority than they did at the onset of the reform era, it
remains the case that Party officials make virtually all the important decisions which are
then simply ratified by state organs.33
Also, the notion of a blueprint implies a desire to reach a certain constitutionally-
described destination. As I argue below, there is little if any evidence to suggest that
state-led reforms are in fact geared toward creating the constitutionally-mandated gov-
ernance structure and thus the blueprint concept has limited application in the Chinese
context. This does not mean, however, that the idea of the constitution as an authoritar-
ian reformist blueprint is irrelevant to the Chinese context. The fact that the Chinese
constitution lays out a system of constitutional governance and rights protection similar
to fully-developed liberal constitutional regimes allows the CCP to use the constitutional
document as a legitimacy-enhancing tool.34
It is this legitimacy-enhancing function that creates a fifth role. Here, I argue that,
for the CCP, and likely for other authoritarian regimes as well, the constitution has a
fifth function that is related to, but is somewhat distinct from, the other four. That fifth
function is a false blueprint. As noted above, the CCP has shown little if any intention
of actually moving forward with a set of reforms that would, formally and finally, insti-
tutionalize the exercise of political power within state organs. Instead, the Party seeks to
use the Constitution to legitimize its rule by maintaining the political fiction that China
is transitioning to constitutional governance.
This false blueprint function also highlights another purpose of the window-dressing
language found in authoritarian constitutions. If an authoritarian constitution is going
to be successfully presented to elite audiences and the general public as a false blueprint,
30
Michael William Dowdle, ‘Of Parliaments, Pragmatism, and the Dynamics of Constitutional
Development: The Curious Case of China’, (2002) 35 NYU J. Int’l L. & Pol. 1. See also Kevin J.
O’Brien, Reform without Liberalization: China’s National People’s Congress and the Politics of
Institutional Change (New York, NY: Cambridge University Press, 2008).
31
Benjamin L. Liebman, ‘China’s Courts: Restricted Reform’, (2007) 191 China Q. 620–38.
But see Randall Peerenboom, ‘Judicial Independence in China: Common Myths and Unfounded
Assumptions’, in Peerenboom (ed.) Judicial Independence in China: Lessons for Global Rule of
Law Promotion (New York, NY: Cambridge University Press, 2010) 69, 74: arguing that while
the independence of individual judges in the Chinese court system remains weak, the ‘collective
independence of the Chinese courts has been strengthened through increased budgets, more
streamlined and efficient processes, and efforts to increase the authority of the courts.’
32
See Carl F. Minzner, ‘China’s Turn Against Law’, (2011) 59 Am. J. Comp. L. 935.
33
Christopher K. Johnson and Scott Kennedy, ‘China’s Un-Separation of Powers: The Blurred
Lines of Party and Government’, Foreign Affairs, July 24, 2015, https://www.foreignaffairs.com/
articles/china/2015-07-24/chinas-un-separation-powers.
34
For an excellent study of the ways in which the CCP uses institutional reform to enhance its
political legitimacy. See Bruce Gilley, ‘Legitimacy and Institutional Change: the Case of China’,
(2008) 41 Comp. Pol. Stud. 259. Gilley focuses less on the Chinese constitution, and more on
broader political reforms that, in some cases, dovetail with constitutional norms. See also Bruce
Gilley, The Right to Rule: How States Win and Lose Legitimacy (Columbia University Press, 2009).
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it needs to contain provisions that lay out a transition to a constitutionalist governance

structure by increasing protections for individual rights. Without such window dressing
language, the state cannot – disingenuously – point its citizens towards a final outcome.
Maintaining the false blueprint requires the CCP to walk a very fine line: it needs to
regularly extoll the values found in the 1982 Constitution, while obscuring the fact that
it has no intention of living up to them. In other words, it should talk the talk of consti-
tutionalism, all while avoiding walking the walk. It needs to be perpetually ‘in transition’
without ever arriving anywhere.35 I call this the authoritarian constitutional dilemma.
Perhaps, unsurprisingly, such a balancing act gets more and more difficult over time.
More observers – including academics, intellectuals, and activists – start to lose faith
in the Party’s commitment to reforms that they pledge to make repeatedly. In other
words, authoritarian governments face a significant temporal challenge of authoritarian
constitutional legitimacy. How (and whether) an authoritarian regime can maintain the
legitimacy-enhancing benefits of constitutionalist rhetoric over time is a very interesting
question, one that China’s experience, both in 2013 and over the past 30 years of reform,
can shed light on.
For a number of reasons, the CCP faces particularly significant difficulties in maintain-
ing the public’s belief in the false paradigm. First and foremost, the CCP has been offering
up Constitutional reform rhetoric for quite some time. For over 30 years, since the passage
of the 1982 Constitution, the CCP has touted its efforts to develop constitutionalism.
Over that time, the Party has twice proclaimed December 4 as a day of reflection on the
importance of constitutional values. In 1982, the CCP dubbed December 4 as ‘Implement
Constitution Day,’ and in 2014, December 4 became ‘National Constitution Day.’ In
effect, the Party was trying to get double the political mileage out of the same propaganda
tool.
A second difficulty for the CCP in maintaining public buy-in for the false blueprint is
the emergence of a much more diverse and pluralistic intellectual class that can expose
the public to a much broader range of ideas. In particular, the emergence of a growing
number of liberal constitutional voices – a group that did not really exist a generation
ago – poses a significant challenge to the Party’s efforts to maintain the public façade of its
false blueprint. As the 2013 debate demonstrated, Liberals are often the only group willing
to directly and publicly question the sincerity and validity of the Party’s constitutionalist
rhetoric. But for those liberal voices, it would be much easier for the Party to maintain its
false constitutionalist credentials.
Finally, the Internet revolution also makes it more difficult for the Party to maintain
public belief in the false blueprint. In contemporary China, constitutional reform can
become a question of public debate, and views can be expressed – more often than not,
indirectly – about whether or not constitutional reform will move forward anytime soon.
This is exactly what happened in 2013: an unprecedented number of individual citizens
followed the academic debate online, many expressing their own support for c onstitutional
implementation as they did so.
35
Thomas Carothers, The End of the Transition Paradigm, 13 J.DEMOCRACY 5 (2002).
Though Carothers is focused on transition to liberal democracy, many of his insights are relevant
to constitutional development within a one-Party system.
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Although I discuss only the case of China in this chapter, the ideas I raise here, including
the false blueprint paradigm, the authoritarian constitutional dilemma, and the temporal
challenge of authoritarian constitutionalism, are relevant to the study of authoritar-
ian constitutionalism more generally. The former Egyptian authoritarian ruler, Hosni
Mubarak, for example, amended the Egyptian constitution in 2005 and 2007, claiming
that such reforms were putting Egypt on the path to fuller electoral democracy.36 He, too,
sought to put forward a false blueprint for constitutional development. Just days before
his ouster in 2011, Mubarak put forward further constitutional reforms in a last-ditch
effort to mollify thousands of street protesters who demanded his resignation. Those
efforts failed in part because, after three decades in power with little to show in the way
of institutional reforms, Mubarak’s constitutionalist promises rang hollow. In some ways,
Mubarak’s downfall represented an extreme case of the temporal challenge: he simply
could not maintain the political viability of constitutional reform rhetoric over time.
THE FALSE BLUEPRINT IN CHINA: CONSTITUTIONAL

REFORM OR RHETORICAL TOOL?
The failure to understand the role of the Chinese constitution as a legitimacy-enhancing

false blueprint has led some scholars to overstate either the potential for constitutional
reform within the existing structure, or the extent to which constitutional reform (as
opposed to legal reform) has already taken place. While such efforts might seem construc-
tive in that they seek to highlight the developmental potential of the existing Chinese
constitution, even within the limits of one-party rule, nonetheless such approaches can
have a downside: they can put a positive gloss on the status quo, which, in turn, helps the
Party legitimize authoritarian rule.
At the risk of stating the obvious, China has made much progress on legal reform over
the 30 years since the reform and opening era began. But framing what may often be
genuine reforms as evidence of constitutional development may overstate the nature of
the change while falsely suggesting a potential for robust institutional development along
constitutional lines. Since the Party embarked on another round of constitution-based
public messaging in late 2014,37 it makes sense to look very closely at what reformist efforts
have achieved (and what they have not achieved) over the past decade and how best to
classify the reforms which have taken place.
In essence, despite the limited progress that China has made on legal reform over the
past decade, China’s constitution remains a sham constitution,38 one that, on balance,
simply does not describe the system of governance in place in China today.39 Its rights
provisions remain unenforceable, and the allocation of powers to different state entities
36
Kristen Stilt, ‘Constitutions in Authoritarian Regimes: The Egyptian Constitution of 1971’,
in Ginsburg and Simpser, supra note 15, 111.
37
Rules of the Party, The Economist, Nov. 1, 2014, http://www.economist.com/news/china/21629
528-call-revive-countrys-constitution-will-not-necessarily-establish-rule-law-rules.
38
David S. Law and Mila Versteeg, ‘Sham Constitutions’, 101 Cal. L. Rev. 863 (2013).
39
Xin He, ‘The Party’s Leadership as a Living Constitution in China’, in Ginsburg and
Simpser, supra note 15, 245: ‘China’s constitution . . . does not tell how the state actually operates.’
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it describes is fundamentally compromised by Communist Party oversight (not to say

outright usurpation) of the exercise of those powers. Nor can China’s constitution be
called aspirational: given the lack of a functional interpretative mechanism, it seems
unlikely that constitutional rights provisions that are currently inactive will be given life
anytime soon.40
This may seem an uncontroversial contention but in recent years, a small but growing
body of scholarly literature has questioned the Chinese constitution’s moribundity. A
number of authors, both Chinese and Western, have sought to draw attention to various
reformist efforts in which the constitution was invoked, in order to argue that China is
taking steps toward genuine constitutional governance.41 Michael Dowdle, for example,
has stated that ‘recognizable constitutional structures are, in fact, beginning to appear in
China,’ and cautions that less careful observers of China’s constitutional development
might miss the ‘powerful potentiality’ of the constitutional document.42
To be sure, the majority of these authors warn that it is too early to say whether China
will continue to develop into a full-blown constitutional state (even if one that is still
authoritarian in character).43 They do, however, believe that there is more constitutional
activity than meets the eye, and that closer scrutiny is needed.
I believe that these scholars run the risk of overstating recent developments. I also
question whether framing what progress has been made as truly constitutional in nature
makes sense. My concern is this: that constitutional framing may mischaracterize what are
essentially political debates as legal or constitutional ones. This in turn may exaggerate the
impact and permanence of those changes that have taken place and generally overstate the
capacity of the system for long-term constitutional development at the institutional level.
To be sure, countries that are in transition to constitutionalism may not yet possess all
of the elements of constitutional governance.44 But in order to be in transition, a system
must be actively developing the institutions (judicial or otherwise) that will interpret
the constitution, and apply such interpretations to laws, regulations, and the state use
of power more generally. Such a system would also be beginning to adopt some set of
institutional checks and balances, so that each branch of government was constrained in
its use of power, both by the constitutional document itself and by the exercise of power
by the other branches.45 Without these two core elements (or at least the beginnings of
these core elements) then it is hard to argue that constitutional development is underway.
40
Michael C. Dorf, ‘The Aspirational Constitution’, (2009) 77 Geo. Wash. L. Rev. 1631.
41
Dowdle, supra note 30. See also Dibid., 2: ‘China provides us with a prime example of
significant constitutional development in an otherwise authoritarian regime . . . [readers should
pay attention to] significant evidence of constitutional development in China’.
42
Ibid.
43
Stephanie Balme and Michael W. Dowdle, ‘Introduction’ in Stephanie Balme and Michael
W. Dowdle (eds) Building Constitutionalism in China (Palgrave MacMillan: US, 2009) 2: ‘[w]hat we
find in China. . . is a transitional constitutionalism whose future success is by no means certain,
but whose dynamics and possibilities are significantly more interesting and robust than generally
is recognized at present.’
44
Ibid. See also Tushnet, supra note 16.
45
This application of core elements to transitional constitutions is by no means unique to this
chapter. Giovanni Sartori, for example, argues that, in essence, a constitution is ‘a fundamental
law, or a fundamental set of principles, and a correlative institutional arrangement, which would
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It is true that, contrary to what once was the established view, authoritarian systems can
in fact successfully integrate into their governance structures constitutional norms that
genuinely constrain authoritarian rulers. As Barros has shown, the Chilean military junta
under the leadership of Augusto Pinochet subjected itself to some limited institutionalized
constraints, even as it exercised unlimited repressive power against its political enemies.
Barros refers to the Chilean experience as a key example of what he calls ‘authoritarian
self-limitation’.46
In some ways, the Chilean experience sheds light on the lack of progress in China.
While the Chinese Party-state has been forced, on occasion, to take action in response
to external reformist pressures,47 it has never fully implemented any reforms that would
institutionalize political power along constitutional lines. The past three decades are rife
with examples of half-measures and abortive reforms that, if they had been zealously
implemented and built upon, might have served to constrain Party power in some
meaningful way.48 The fact the CCP has not done this speaks to its own lack of interest
in authoritarian self-limitation.
Perhaps the clearest signal of the Party’s lack of interest in subjecting itself to institu-
tional constraints comes from the Party itself. In his comprehensive survey of the CCP’s
responses to the collapse of the Soviet Union, Shambaugh shows that the CCP engaged
in an intensive study of the demise of the Soviet system in order to learn from (and, the
CCP leadership hoped, avoid) the mistakes that Soviet leaders made.49 According to
Shambaugh, the studies carried out by various Party-affiliated think tanks and scholars
identified a range of economic, political, and cultural factors that led to the collapse of the
Soviet Union, not least among them the ‘dogmatic, ossified, inflexible, (and) bureaucratic
ideology and thinking’ of many top Soviet leaders, with the exception of Gorbachev.50
Shambaugh also notes that official studies pointed to the dangers of many of the
‘Rightist’ (liberal) reforms instituted by Gorbachev, including ‘advocacy of pluralist
ideology,’ ‘negating the leadership position of the Communist Party’, separating Party and
restrict arbitrary power and ensure a ‘limited government.’’ Giovanni Sartori, ‘Constitutionalism:
A Preliminary Discussion’, (1962) 56 Am. Pol. Sci. Rev. 853, 855. Although Sartori was speaking
of constitutionalist systems in general, his emphasis on institutions that restrict the use of political
power is, I believe, at the heart of what a developing constitutional system must be aiming for in
order to be truly in transition towards genuine constitutionalism.
46
Robert Barros, Constitutionalism and Dictatorship: Pinochet, the Junta, and the 1980
Constitution (New York, NY: Cambridge University Press, 2002) 16–28.
47
See discussion of the Sun Zhigang case, infra note 70 and accompanying text at 505–507.
48
One key example is the Administrative Litigation Law (ALL). Enacted in 1989, the ALL
was meant to serve as a key vehicle for allowing citizens to play a role in limiting abuse of power
by local officials. Yet a range of factors contributed to the effective neutering of the ALL, and it
is largely seen by Chinese scholars as having failed in its initial ambition to serve as a meaningful
constraint on local governments. Some scholars have argued in fact that the key goal of the ALL
is not to make local governments accountable to the people they serve, but rather to make local
governments more accountable to the centre. See Xin He, ‘Administrative Law as a Mechanism for
Political Control in Contemporary China’, in Balme and Dowdle, supra note 43, 144–5.
49
David Shambaugh, China’s Communist Party: Atrophy and Adaptation (University of
California Press, 2008).
50
Ibid., at 67.
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government functions, and ‘negating democratic socialism’.51 Real constitutional reform

would invoke all of these concerns, so much so that, as outlined below, Leftist attacks on
proponents of constitutional reform in mid-2013 would recite very similar charges against
their adversaries. This suggests that the Party has not forgotten what it perceives as the
lessons of the Soviet experience.
Shambaugh’s study shows that, whatever congruence there may be between specific
reforms and a comprehensive constitutional reform agenda, the end goal of the CCP in
enacting those specific reforms differs fundamentally from the reformist goal of a true
constitutional system in which power is institutionally constrained.52 Shambaugh’s study
strongly suggests that the Party believes a genuine embrace of constitutionalism, rather
than reinforcing its own position, might well lead to the collapse of the one-party system
altogether, just as similar reforms did in the Soviet Union.
CONSTITUTIONAL RHETORIC OR CONSTITUTIONAL

REFORM?
Doubtless it can be tempting to see various specific instances of liberal reform as part
of a larger picture of long-term constitutional development. In my own prior work on
Chinese constitutionalism, I have analysed attempts by would-be reformers to ‘judicial-
ize’ the Chinese constitution, and in so doing to make state action subject to at least
a limited form of judicial review.53 I have also analysed cases of judicial innovation by
Chinese judges who, contrary to the general understanding of their quasi-constitutional
role, have applied constitutional norms to specific cases. These actions, in essence, have
created additional legal requirements for certain litigants not found in Chinese laws and
regulations.54 I have argued that Chinese courts should be given more space to engage in
more such innovation, and that their actions might serve as a key element in a renewed
push by the Party-state to the build a rule of law system.55
Though these articles remain, I hope, relevant contributions to the study of Chinese
law, they did not, at least as of this writing, serve as a predictor of the developmental
path of the Chinese constitution. In the end, the Party-state chose not to follow up on
the openings highlighted by the cases I described. Indeed, in one instance, the Supreme
51
Ibid., 68–70.
52
Ibid., 3: ‘the CCP has zero interest in transitioning to a Western, or even an Asian, democratic
system of competitive parties.’ Although Shambaugh does not specifically address constitutional
reforms, his study generally makes clear that far-reaching liberal reforms that would limit Party
authority have been rejected. Constitutionalism would certainly be in this category.
53
Thomas E. Kellogg, ‘Constitutionalism with Chinese Characteristics? Constitutional devel-
opment and civil litigation in China’, (2009) 7 Int’l J. Const. L. 215. In particular, I argued that
growing public rights consciousness generated in part by constitutional litigation might force the
Party-state’s hand: ‘If more and more Chinese citizens begin to see constitutional rights as both
relevant to their own lives and legally enforceable, then the government may face growing public
pressure to respond with more far-reaching reforms.’ Ibid., 245–6.
54
Thomas E. Kellogg, ‘“Courageous Explorers”? Education Litigation and Judicial Innovation
in China’, (2007) 20 Harv. Hum. Rts. J. 141.
55
Ibid., 187–8.
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People’s Court formally annulled the 2001 Qi Yuling case, which remains the only attempt
at full-fledged top-down constitutional reform.56 The failure to build on these successes
speaks to the Party’s reluctance to cross the Rubicon of constitutional development and
develop a mechanism by which the Party-state is genuinely circumscribed in its exercise
of political power. Until that metaphorical river has been crossed, it will be hard to argue
that the Chinese constitution is a truly meaningful legal document.
Similarly, many analysts have focused on various incidents in which constitutional
arguments have played a role to argue that the Chinese constitution has in fact become
operationalized. Ginsburg and Lin, for example, highlight various cases in which the
officials have made reference to the constitution in order to resolve various legislative
disputes. For them, these cases show that the Chinese constitution ‘plays an increas-
ingly important role within the party-state’.57 In their view, ‘China’s top legislature has
routinely engaged in interpreting the Constitution during the legislative process, and has
already accumulated a rich body of constitutional norms.’58
It is true that, in the various examples they cite, the constitution seems to have played
some role. That said, most of the cases that they cite are of relatively limited significance
from a constitutional development perspective, in the sense that they do not limit state
power or create a new interpretative norm that must be followed in future. In general, in
the various cases that Ginsburg and Lin describe, state authorities use the constitution
to justify state action; they fail to uncover a case in which the legislature reluctantly
concluded that an action it wanted to take was constitutionally prohibited.
Ginsburg and Lin also fail to deal with the (much more numerous) cases in which the
NPC fails to grapple with constitutional questions raised during the legislative process.
In 2014, for example, the NPC Standing Committee passed a Counter-Espionage Law.
That law, which replaced the 1993 National Security Law, allowed for the seizure of
various assets being used for espionage by Chinese or international organizations.59 Such
provisions would seem to implicate several constitutional rights protections, including
the right to be protected against unlawful search,60 and the right to privacy of personal
communications.61
Although the law did state that ‘counterespionage work must be carried out in accord-
ance with the law and respect and protect human rights, as well as protect the legal rights
of civil society organizations’,62 nonetheless no prophylactic protections were put into
place to ensure that the law would not be misused by state authorities to conduct surveil-
lance against or seize the assets of civil society organizations engaged in various forms of
56
Thomas E. Kellogg, ‘The Death of Constitutional Litigation in China?’ (2009) 9(7)
Jamestown China Brief 4, https://jamestown.org/wp-content/uploads/2009/04/cb_009_7_02.pdf.
57
Yan Lin and Tom Ginsburg, ‘Constitutional Interpretation in Lawmaking: China’s Invisible
Constitutional Enforcement Mechanism’, (2015) 63 Am. J. Comp. L. 467, 467.
58
Ibid., 469.
59
Didi Kristen Tatlow, ‘China approves security law emphasizing counterespionage’, New
York Times, Nov. 2, 2014, http://www.nytimes.com/2014/11/03/world/asia/china-approves-security-
law-emphasizing-counterespionage.html.
60
Xianfa art. 39 (China) (1982).
61
Xianfa art. 40 (China) (1982).
62
‘China passes Counterespionage Law for comprehensive state security’, Xinhua, Nov. 1,
2014, http://news.xinhuanet.com/english/china/2014-11/01/c_133759158.htm.
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advocacy work. Indeed, as far as can be assessed, constitutional values failed to influence
the legislative drafting process in any way.
Perhaps most importantly, Ginsburg and Lin overstate the legal value of constitutional
arguments raised during the legislative process. In fact, such arguments, regardless of
their strength, are not binding on future legislative action.63 For example, Ginsburg and
Lin discuss various cases in which the NPC and the National People’s Congress Standing
Committee (NPCSC) have been called upon to clarify the meaning of constitutional
provisions relating to public ownership of natural resources and land, a key issue in China
in recent years.64 As Ginsburg and Lin themselves point out, in drafting laws that give
meaning to these constitutional provisions, the NPC and the Standing Committee have
taken a largely ad hoc, ‘case-by-case’ approach, and have even given ‘strikingly different
answers’ in response to different laws as to the meaning of public ownership of different
resources.65
No jurisprudence was developed by the NPC and the NPCSC during the law-drafting
process, and even the legal norms that were codified in laws were not applicable to future
laws.
Constitutional arguments put forward during the legislative process are more rhetori-
cal and political in nature than they are legal or constitutional. In practice, if the Party
decided that it wanted to reverse recent property law reforms to reclassify the ownership
of various natural resources, or to strengthen the ownership rights of the state versus
private property rights holders, it would face few legal barriers in doing so. Such
action may well be politically unlikely, but it is by no means legally or constitutionally
impermissible.
Without doubt, Ginsburg and Lin’s examination of the rhetorical role of the Chinese
constitution in the legislative process contributes to a fuller understanding of how laws
are made in China. It is also undoubtedly a positive sign that constitutional arguments
carry some rhetorical weight in certain NPC deliberations. But it seems an overstatement
to suggest that the cases they examine demonstrate that the NPC and the NPCSC ‘have
been fairly active in illuminating constitutional meanings in China’66 or to suggest that the
legislative process has become ‘a major venue for constitutional evolution’.67
POPULAR CONSTITUTIONALISM CHINESE STYLE? THE

LIMITS OF BOTTOM-UP REFORMS
The lack of state-led constitutional activity has led a number of both Chinese and Western
scholars to shift their attention to Chinese society itself as the likely key force for con-
stitutional development. Indeed, bottom-up reforms have achieved more than top-down
efforts over the past several years. For the foreseeable future, such efforts – often labelled
63
Ginsburg and Lin also do not address the question of failure to implement laws, and the lack
of a constitutional mechanism to address failed implementation by local or provincial governments.
64
Xianfa arts 9–10 (China) (1982).
65
Lin and Ginsburg, supra note 57, 14.
66
Ibid., 16.
67
Ibid., 18.
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as Chinese examples of ‘popular constitutionalism’68 – represent the best hope for new
reforms.69
That said, however, labelling those reforms that have been achieved through social
mobilization efforts as moments of meaning constitutional development is problematic.
Given that virtually all of the reforms that have been achieved by citizen activism are
limited in their broader impact, and are, at the end of the day, not binding on future Party
or state action, the constitutional moniker may not fit.
Take, for example, the 2003 Sun Zhigang case. In April 2003, the tragic death of a
young student named Sun Zhigang in detention stirred nationwide outrage.70 Sun had
been detained under the so-called Custody and Repatriation regulations, which allowed
local officials to detain individuals found residing in places other than their official place
of residence as designated on their household registration, or hukou.71
After Sun’s death, apparently at the hands of local detention centre officials, made
newspaper headlines nationwide, three young scholars in Beijing – Teng Biao, Xu
Zhiyong, and Yu Jiang – submitted a constitutional review proposal to the NPCSC,
which is formally empowered to interpret the Chinese constitution. They argued that
the Custody and Repatriation regulations were both illegal and unconstitutional, in that
they violated the Constitution, the Legislation Law, and the Administrative Punishment
Law.72
Within weeks of the scholarly petition, the State Council announced that it was
scrapping the regulations, replacing them with voluntary measures to aid migrants.73
The State Council announcement was rightly hailed as an important victory for Chinese
constitutionalism, and has since been seen as a key milestone in China’s constitutional
development.
It was indeed an important victory, but was it a developmental milestone? It is true
that, as a result of public pressure largely framed in constitutional language, the Chinese
government scrapped a pernicious form of arbitrary detention that, on the face of it,
would seem to violate Chinese constitutional rights provisions. But for all of its success,
the Sun Zhigang case did not change the meaning of the Chinese constitution: it did
not, for example, create a constitutional norm prohibiting arbitrary detention. Though
Custody and Repatriation was scrapped, a number of other forms of arbitrary detention
68
Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review
(Oxford University Press, 2004) 7. Kramer argues that, in the early years after its inception in 1789,
the American constitutional republic featured an active and dynamic role for the American people
in constitutional development. It was they, Kramer argues, and not merely the courts, the Congress,
or the executive, who ‘were responsible for seeing that [the Constitution] was properly interpreted
and implemented. The idea of turning this responsibility over to judges was simply unthinkable’.
69
Thomas E. Kellogg, ‘Western Funding for Rule of Law Initiatives in China: the importance
of a civil society-based approach’, (2012) 3 Chinese Perspectives 53, https://chinaperspectives.
revues.org/5954.
70
For an excellent account of the Sun Zhigang case and its aftermath, see Keith J. Hand,
‘Using Law for a Righteous Purpose: The Sun Zhigang Incident and Evolving Forms of Citizen
Action in the People’s Republic of China’, (2006) 45 Colum. J. Transnat’l L. 114.
71
Ibid., 120.
72
Ibid., 124.
73
Ibid., 128.
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remained on the books, some of which remain in effect to this day.74 In addition, the con-
stitutional petition issued by Xu, Teng, and Yu did not create a new process for petitioning
for constitutional change: the NPCSC has failed to take any formal constitutional action
on all subsequent constitutional petitions addressed to it.
Even in Sun’s case, the Party-state took great pains to deny the constitutional
implications of its own actions. In a historic first, the NPCSC did formally accept
the constitutional review petition authored by the three scholars.75 However, rather
than publicly responding to the constitutional petition or stating that it was issuing an
interpretation of the Chinese constitution, the State Council merely voided the regula-
tions without any constitutional explication or explanation whatsoever. While it is true
that the Party did initially allow extensive public discussion of the case online and in
the Chinese media,76 it likely did so in order to bolster its own constitutional credentials
at a time when its public credibility had been damaged, rather than as a signal of any
willingness to accept additional reforms.77 The Party’s decision to act through the State
Council rather than the NPCSC also meant that no formal constitutional precedent was
set. This meant that the Party-state remained free of formal constitutional constraints
on its authority.
A better understanding of the Sun Zhigang case might be arrived a through a study
of the underlying political dynamics, rather than through an emphasis on its legal-
constitutional dimensions. In essence, the Sun Zhigang case was a significant political
victory, which showed, more or less for the first time, that the Party could be forced to bow
to political pressure to enact progressive reforms, assuming that pressure was sufficiently
strong and sustained.
From the Party’s perspective, an excessive emphasis on the legal-constitutional elements
of the Sun Zhigang case and other such cases might obscure what is actually happening.
At times, the Party is forced to compromise, but it always preserves its monopoly on politi-
cal power and its ability to exercise that power without any institutional constraints. While
it is true that such forms of negotiation and compromise are an important development,
nonetheless they are just that: forms of political contestation and negotiation, which,
sadly, are all too rare78 and have virtually no permanent institutional impact. Perhaps the
74
‘Changing the Soup but not the Medicine: Abolishing Re-Education Through Labor in
China’, (2013) Amnesty International, https://www.amnesty.org/en/documents/asa17/042/2013/en.
See also ‘“An Alleyway in Hell”: China’s Abusive “Black Jails”’, (2009) Human Rights Watch.
75
Hand, supra note 70, 149.
76
Keith Hand, ‘Resolving Constitutional Disputes in Contemporary China’, (2102) 7 U. Pa.
E. Asia L. Rev. 51.
77
The government also enacted some minor improvements to the NPCSC’s legislative review
process, in particular by creating a new office to review and resolve legislative conflicts. Hand, supra
note 70, at 152. Over the first decade of its existence, however, that office, known as the Bei’an Shi,
has failed to play a meaningful role, either in resolving legal conflicts, or in constitutional develop-
ment more generally. Chinese constitutional scholar Guobin Zhu, for example, concludes that ‘the
symbolic significance of the (Bei’an Shi) reaches farther than the actual significance.’ Guobin Zhu,
‘Constitutional Review in China: An Unaccomplished Project or a Mirage?’ (2010) 43 Suffolk U.
L. Rev. 625.
78
Qianfan Zhang, ‘A Constitution Without Constitutionalism? The Paths of Constitutional
Development in China’, (2010) 8 Int’l J. Const. L. 950, 968–76.
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best that one can say about the constitutional implications of cases like the Sun Zhigang
tragedy is that they constitute important victories for constitutionally enumerated values.
Nonetheless, they have not brought China any closer to actual constitutional enforce-
ment. Therefore, framing them as part a process of ongoing constitutional development
(rather than as discrete and often important victories for liberal reformers) may not make
sense. This is not to say that efforts by academics, lawyers, and activists are not deeply
important, of course they have been. Such efforts have been especially successful in terms
of educating the public on how constitutions should work to limit state power and protect
individual rights. But there are limits to what such approaches can accomplish, first and
foremost because they are not easily reproduced.79 Given that only extreme miscarriages
of justice (most likely including death) are enough to capture public attention, the model,
such as it is, comes with a high human cost.
Overall, China’s experience over the last decade or more speaks more to the limits of
bottom-up constitutional development strategies within an authoritarian system than it
does to the potential of such strategies to produce fundamental systemic change. From a
ruler’s perspective, China’s experience indicates that authoritarian governments have to
carefully balance the legitimacy-enhancing benefits of legal reform with the concern that
such reforms could, if taken too far, eventually limit the authoritarian ruler’s power and
undercut the ruler’s political legitimacy.80 Such a balancing act requires constant vigilance
and, when necessary, repressive retrenchment to censure or perhaps forcibly retire those
scholars, lawyers, and activists who would push reforms farther than the Party is willing
to see them go.81
79
Ibid., 968–72:
[r]ather than improving the institutional capacity of the regime to prevent abuses of power, the
Sun Zhigang model, in essence, provides only a trigger for initiating a remedial process. The
process itself is not only too late, in view of the occurrence of the tragedy and the inability to
prevent conflict, but is seriously limited, as well, in its capacity to correct the wrongs produced by
an anachronistic institutional arrangement naturally prone to corruption and abuses of power.
80
See Fu Hualing et al., ‘Challenging Authoritarianism through Law: Potentials and Limit’,
(2011) 6 Nat’l Taiwan U. L. Rev. 339, 358:
there are inequality and injustice [in China] and people who have suffered are entitled to legal
remedies. But a legal mobilization, as rights lawyers have envisaged and are practicing, is too
interruptive to political stability that is essential for the survival of the Party/state. Injustice as
prevalent as it is, can only be brought to solution at a pace and according to a method with which
the CCP is comfortable. Lawyers cannot be the representative of the interest of the people. Only
the Party can.
81
One such moment of retrenchment took place in July 2015, when the Party-State detained or
harassed close to three hundred lawyers and activists, in one of the largest attacks on civil society
in China in recent memory. See Andrew Jacobs and Chris Buckley, ‘China targeting rights lawyers
in a crackdown’, New York Times, July 22, 2015, http://www.nytimes.com/2015/07/23/world/asia/
china-crackdown-human-rights-lawyers.html.
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CONCLUSION
In this chapter, I have argued that, in many key ways, China under President Xi Jinping
is moving away from the authoritarian legality paradigm. The Chinese Communist Party
no longer sees law as a central tool to facilitate foreign direct investment for example.
At times, it has relied more heavily on political repression than on legal tools to deal
with domestic critics; this too, represents a step away from the authoritarian legality
model. Moreover, as noted above, the Party-state has refused to act on calls from various
domestic actors including rights lawyers, legal academics, and even in some cases its own
judges to enact constitutional reforms that would further entrench the rule of law and
bring China closer to both the Singaporean model of authoritarian legality and to the
constitutional democratic model of neighbors like Taiwan and South Korea.
Beijing’s renunciation of key tenets of authoritarian legality and its refusal to embrace
meaningful institutional legal reforms begs a more fundamental question: will it work?
Will China continue to enjoy robust economic growth, even in the face of growing
complaints from both foreign investors and some domestic businesses over what they see
as an uneven playing field? Will increasing curbs on political discourse, along with an ever-
tightening overall political environment, have a splash-on effect on China’s economy or
will China continue to enjoy robust economic growth in the years to come? Would doing
so refute those who have argued that legal reform and economic development are both
inter-connected and mutually-reinforcing? There are no easy answers to these questions.
One thing however is clear: as the Chinese economy slows and the Party leadership
doubles down on its control-first strategy, Beijing has very little margin for error. Over the
past two decades, Chinese leaders have put most of their political chips down on the idea
that gradualist (and at times even minimalist) legal reforms could be paired with strong
political control with little or no cost to economic growth and largely, the Communist
Party has been rewarded for its go-slow approach to legal and institutional reform.
Whether the same strategy can continue to work as well over the next several years remains
to be seen. On this point, sceptics, including this author, strongly outnumber optimists.
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30. Court development in Timor-Leste: ‘Handover’
and its long shadow*
Pip Nicholson and Samantha Hinderling
This chapter explores the ‘dynamics’ of international rule of law assistance in Timor-Leste,
focussing on court reforms between 1999 and 2015.1 We offer a long-term retrospec-
tive analysis of court reform as interpreted by local judges and other observers closely
familiar with the sector in Timor-Leste. These local narratives are located in the context
of international donor documents and academic commentary. This analysis of the export
and reception of court reform draws heavily on debates about the transplantation of laws
and legal institutions and the role of the recipients of legal reforms in their ‘translation’.2
More particularly, this chapter takes up the issue of demand-versus-supply-side aid
to Timorese courts in the post-conflict reconstruction efforts and their aftermath. The
tension between donor-supplied solutions to court development and its resonance or
dissonance with demand-driven rule of law aid initiatives has been taken up explicitly
elsewhere.3 This analysis highlights how justice sector interventions that are ill-conceived
and unidirectional can have fundamental, unintended consequences, especially where the
aspired outcome is a ‘handover’.4
Handover assumes stakeholders to whom the newly minted legal institutions will be
passed, but in the case of Timor-Leste, the political elite (the partners with whom donors
talked during the post-conflict phase) no longer entirely share a vision for courts and their
reform with judges. Kahn-Freud’s argument that similar political orientation will assist
with the take-up of legal transplants,5 and that political will to make reforms produces
* The authors acknowledge the support of the Folke Bernadotte Academy, Sweden, for the
project, ‘Post-Conflict Rule of Law: The Local Experience in Timor-Leste’, from 2013–15 which
enabled the empirical work and literature reviews that inform this chapter.
1
‘Dynamics’ here is used generically. See further, Michael Zürn, André Nollkaemper
and Randall Peerenboom, ‘Introduction’ in Michael Zürn, André Nollkaemper and Randall
Peerenboom, Rule of Law Dynamics: In an Era of International and Transnational Governance
(Cambridge University Press, 2012) 1–17; using the term ‘rule of law dynamics’ to describe a com-
plex of processes that Zürn et al disaggregate into promotion, diffusion, and conversion dynamics.
2
John Gillespie and Pip Nicholson, ‘Taking the interpretation of legal transfers seriously’ in
John Gillespie and Pip Nicholson (eds), Law and Development and the Global Discourses of Legal
Transfers (Cambridge University Press, 2012) 6; Pip Nicholson and Sally Low, ‘Local Accounts of
Rule of Law Aid: Implications for Donors’ (2013) 5(1) Hague Journal on the Rule of Law 1–43; also
Zürn et al, ibid. (the authors’ focus on conversion considers how rule of law concepts are received,
translated, adapted and/or rejected in the local context).
3
Nicholson and Low, ibid. and Zürn et al, (n 1).
4
Pip Nicholson, Borrowing Court Systems: The Experience of Socialist Vietnam (Leiden,
Martinus Nijhoff, 2007) 239–40.
5
Otto Kahn-Freud, ‘On Uses and Misuses of Comparative Law’ (1974) 37(1) The Modern Law
Review 1, 12.
509
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a commitment to their implementation comes into play here.6 We also suggest, as a

result of this case study, that reform traction is compromised over time when the initial
consultations are limited and rushed.
In short, we contend that in Timor-Leste court-focussed justice sector reform,
between 1999 and 2002, was characterised by a lack of local ownership and interna-
tional and local political commitment resulting in the rebuilding of Timor-Leste’s justice
system (in 1999) with no short-term strategy for that rebuilding or the ‘handover’ of the
justice system, post-independence. Neither was there a long-term vision based on local
consultation and consensus about the future direction of reform, at least not until the
introduction of the Justice Sector Strategic Plan for Timor-Leste in 2010.7 This, we sug-
gest, reflects the supply-side focus of those entrusted with court reform. Consequences
include: different understandings of rule of law between donor and locals; restricted
access to justice due to language issues; and tensions between the informal and formal
justice system.8
We argue further that the Timorese ownership deficit stems, at least in part, from the
UN’s approach to ‘handover’ which aspired to see the Timorese government ‘handed’ a
‘fully functioning justice sector’ at independence, but gave very little guidance to the UN
Transitional Administrator in Timor-Leste, Sergio Vieira de Mello, on how to realise this
ambition, particularly in respect of courts.9 Additionally, such ambitions were inevitably
compromised by circumstances in Timor-Leste including: a short timeframe; constraints
imposed by the imperatives of peace-keeping operations; ‘crises’ of the early post-conflict
phase; and the minimal or non-existent local capacity to carry out judicial functions.
Ingrained rule of law development practices, including top-down approaches that favour
technocratic transplantation of Western court institutions with little or no regard for legal
pluralism and local conditions (effectively supply-side rule of law aid), compromised the
ambition of the interventions.10
These failings culminated in a schism between the political and legal elites about
Timor-Leste’s court reform trajectory erupting in 2014–15 with the Parliament’s expul-
sion of all international judges, much to the dismay of local judges. We contend that the
current political-legal divide is both a consequence of the United Nations Transitional
Administration of East Timor (UNTAET) privileging certain political actors in the
immediate post-conflict phase and successfully empowering voices of protest in legal
actors. These legal voices may yet fail to withstand the pressures of the stronger political
legacy of the post-conflict intervention.
Much of the existing commentary on rule of law construction in Timor-Leste
focuses on: UNTAET’s state-building efforts and associated challenges and
6
Daniel Berkowitz, Katharina Pistor and Jean-Francois Richard ‘Economic Development,
Legality, and the Transplant Effect’ (Winter, 2003) 51(1) The American Journal of Comparative
Law 163–203.
7
Ministry of Justice, ‘Justice Sector Strategic Plan for Timor-Leste: 2011–2030’, (Dili, 12
February 2010).
8
For example, interviewees A, B, C, D, G and H.
9
Report of the Secretary General on the Situation in East Timor, UNSCOR, UN Doc
S/1999/1024 (4 October 1999) para 34.
10
Nicholson and Low (n 2), 1–43.
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Court development in Timor-Leste 511
lessons;11 the dual lenses of peace-keeping/peace-building and development, highlight-

ing inherent tensions between their respective approaches to rule of law building;12 the
transitional justice mechanisms in Timor-Leste;13 and institutional analyses.14 With
some notable exceptions, much of the literature on justice sector development in Timor-
Leste covers the five years post-independence.15 In setting out local judges’ and officials’
perceptions of court reform, we contribute a new contemporary perspective to this
existing critical literature, with which we largely agree. We also highlight the possibility
that rule of law aid that marginalises the local and empowers certain groups more than
others not only risks court reform, but also unintentionally risks the power of judicial
agencies over time.
The first focus of our analysis is the pre-independence period, shaped by the
authority of UNTAET and its focus on immediate reconstruction needs (1999–2002).
We then focus on the ‘development phase’, beginning with Timor-Leste’s independ-
ence and UNTAET’s post-mission ‘handover’ which is characterised by the transi-
tion to longer-term donor strategies and programmes for rule of law development
(2002–present).
We see this two-phase approach as problematic because transition out of conflict is
often complex, slow, and gradual, beset by setbacks as was the case in Timor-Leste.16
Working towards a swift ‘handover’, as UNTAET did, creates a very short reform horizon
11
Tanja Hohe, ‘Clash of Paradigms: International Administration and Local Political
Legitimacy in East Timor’ (2002) 24(2) Contemporary Southeast Asia 569; Jarat Chopra, ‘Building
State Failure in East Timor’ (2002) 33(5) Development and Change 979–1000; Paulo Gorjao, ‘The
Legacy and Lessons of the United Nations Transitional Administration in East Timor’ (2002) 24(2)
Contemporary Southeast Asia 313–36; Cedric de Coning, ‘The UN Transitional Administration in
East Timor: Lessons learned from the first 100 days’ (2000) 6 (2–3) International Peacekeeping
83–90; Joel C Beauvais, ‘Benevolent Despotism: A Critique of U.N. State-Building in East Timor’,
(2001) 33 New York University School of Law 1101.
12
Astri Suhrke, ‘Peacekeepers as Nation-builders: Dilemmas of the UN in East Timor’ (2001)
8(4) International Peacekeeping 1–20.
13
Judge Phillip Rapoza, ‘The Serious Crimes Process in Timor-Leste: Accomplishments,
Challenges and Lessons Learned’ (speech delivered at the ‘International Symposium on UN
Peacekeeping Operations in Post-Conflict Timor-Leste: Accomplishments and Lessons Learned’,
Dili, Timor Leste, 28 April 2005). See also Hansjörg Strohmeyer, ‘Making Multilateral Interventions
Work: The UN and the Creation of Transitional Justice Systems in Kosovo and East Timor’ (2002)
25 Fletcher Forum of World Affairs, 107, 109.
14
Suzannah Linton, ‘Rising from the Ashes: The Creation of a Viable Criminal System in East
Timor’ (2001) 25 Melbourne University Law Review 122; Andrew Marriott, ‘Legal Professionals
in Development: Timor-Leste’s Legislative Experiment’ (2009) 9(2) Conflict, Security and
Development 239–63; examining the growing importance of the legal profession as a stakeholder in
Timorese security and development; Andrew Marriott, ‘Justice Sector Dynamics in Timor-Leste:
Institutions and Individuals’ (2012) 4(1) Asian Politics & Policy 53–71.
15
More recent literature on the topic includes Andrew Marriott, ‘Justice Sector Dynamics in
Timor-Leste: Institutions and Individuals’; David Cohen and Leigh-Ashley Lipscomb, ‘Justice
Reform at the Cross-Roads in Timor-Leste’ (IPAC Report No.22, Institute for Policy Analysis
of Conflict, 7 September 2015) (providing a broad assessment of Timor-Leste’s justice system
today).
16
Graham Brown, Arnim Langer and Frances Stewart, ‘A Typology of Post-Conflict
Environments’ (CRPD Working Paper No.1, Centre for Research on Peace and Development,
September 2011) 4.
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that becomes aspirational rather than real, especially if the justice sector is not ready for
handover.
Perhaps a re-imagining of justice sector reform as a continuum of activity might
prove a more workable paradigm.17 We argue that conceptualising rule of law building
as a continuum might have allowed UNTAET (and other donors) to foster: a common
vision for justice sector development; fluency between different stages of transition and
development; and less reliance on supply-side conceptions of court-reform. This adapted
model may also have ‘failed’, but we do not know that.
Part 1 offers a brief overview of the developments in Timor-Leste over the past 16
years with a focus on the legal and justice sector. In part 2 we analyse the supply-side
of court-focussed rule of law reform in Timor-Leste in terms of both donor aspirations
and strategies. Part 3 chronicles local accounts of court-focussed rule of law establishing
the demand-side narratives and debates. This account stems from empirical research
interviewing 16 local actors (lawyers, judges, and the elite leadership) in Timor-Leste
between 2014 and 2015. Of the 40 judges in Timor-Leste in 2015, nine participated in our
research, all of whom were local.18
1. TIMOR-LESTE AND THE UNITED NATIONS’ MISSIONS
In August 1999, the people of East Timor, now known as Timor-Leste, voted for
independence after more than 400 years of Portuguese colonisation and 24 years of
Indonesian occupation.19 In September 1999, the International Force in East Timor
(INTERFET) was deployed to Timor-Leste to restore peace and security in the lead up
to the independence vote.20 Following the vote, from October 1999, the United Nations
Security Council established UNTAET and tasked it with ‘overall responsibility for the
administration of East Timor’. 21 UNTAET was given the power ‘to exercise all legislative
and executive authority, including the administration of justice’.22 UNTAET’s compre-
hensive mandate entailed an almost unprecedented level of UN involvement in domestic
political processes and state-building efforts.23 In February 2000, INTERFET handed
17
Ibid.
18
The interviewing for this research project was conducted under the auspices of University of
Melbourne Human Ethics Research Committee, No 1341386.1.
19
Damien Kingsbury and Michael Leach, ‘Introduction’ in Damien Kingsbury and Michael
Leach (eds), East Timor Beyond Independence (Monash Asia Institute, 2007) 1–18 for a concise
overview of East Timor/Timor-Leste’s history.
20
Australian Army, ‘East Timor Peacekeeping Mission to conclude’, http://www.army.gov.au/
Our-work/News-and-media/News-and-media-2012/News-and-media-December-2012/East-Tim
or-peacekeeping-mission-to-conclude (last visited 28 October 2015).
21
SC Res 1272, UNSCOR, 4057th mtg, UN Doc S/RES/1272 (25 October 1999).
22
Ibid.
23
Carsten Stahn, ‘Justice under Transitional Administration: contour and critique of a
paradigm’ (2004–5) 27 Houston Journal of International Law 312, 333; noting that one of the main
differences between UNMIK and UNTAET was the addition of a military force to UNTAET’s
operations whereas KFOR was responsible for military tasks in Kosovo.
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over military command and control to UNTAET.24 UNTAET’s mandate ended in May
2002 with Timor-Leste’s declaration of independence.25 A number of post-independence
UN missions followed.26
Tensions between the Defence Force and the National Police of East Timor (PNTL) that
had been building since the Indonesian occupation, and intensified during UNTAET’s
management of key security institutions post-independence, came to a head in March
2006 with the sacking of 600 Falintil – FDTL (Armed Forces for the Liberation of Timor-
Leste).27 Subsequent street riots led to a dramatic deterioration in the security situation
exposing festering sores between those who had led the violence of 1999 and their victims.
28
The Timorese government formally requested the intervention of international forces.29
While the security situation eventually improved, the political crisis deepened resulting in
the resignation of Prime Minister Mari Alkatiri in June 2006.30 In July, President Gusmão
chose José Ramos-Horta as Timor-Leste’s new Prime Minister.
In August 2006, UNMIT was established as a third peacekeeping mission to improve
security, promote democratic governance, and support presidential and parliamentary
elections in 2007.31 It was the last UN peace mission in Timor-Leste and ended in
2012.32
2. COURT-FOCUSSED RULE OF LAW: INTERNATIONAL

DONORS
The United Nations and Rule of Law in Timor-Leste: Site and Power in Post-Conflict and
Reconstruction (1999–2002)
UNTAET’s mandate was broad and yet sparse on details.33 It called for the establishment
of an effective administration; the development of civil and social services; coordination
and delivery of humanitarian assistance; rehabilitation and development assistance;
24
Australian Army (n 20).
25
‘Report of the Secretary-General on the United Nations Transitional Administration in East
Timor’, UN Doc S/2002/432 (17 April 2002); Sue Downie, ‘UNTAET: state-building and peace-
building’ in Kingsbury and Leach (n 19), 29, 29.
26
UNMISET was established under SC Res 1410, UNSCOR, 4534th mtg, UN Doc S/
RES/1410 (17 May 2002) and ran from May 2002–May 2005. UNOTIL was established under SC
Resolution 1599, UNSCOR, 5171st mtg, UN Doc S/RES/1599 (28 April 2005).
27
Damien Kingsbury, ‘Political Development’ in Kingsbury and Leach (n 19), 21. For an over-
view of the 2006 events see also Report of the Secretary-General on Timor-Leste pursuant Security
Council Resolution 1690, UNSCOR, UN Doc S/2006/628 (8 August 2006).
28
Ibid.
29
Kingsbury and Leach, ‘Introduction’ in Kingsbury and Leach, ibid., 6.
30
Ibid., 7.
31
SC Res 1704, UNSCOR, 5516th mtg, UN Doc S/RES/1704 (25 August 2006). UNTAET
and UMISET were the other two peacekeeping missions. For more information see http://www.
un.org/en/peacekeeping/missions/past/unmit/background.shtml.
32
Security Council, Report of the Security Council Mission to Timor-Leste, 3–6 November
2012, 28 November 2012, S/2008/889.
33
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capacity-building for self-government; and the facilitation of sustainable development.34

UNTAET’s most immediate focus centred on security and law and order throughout
the territory of Timor-Leste.35 Accordingly, UNTAET prioritised work with the courts
and the prison system and the prosecution of human rights offences committed during
Indonesian rule.36
Indonesia’s 24-year occupation and violent withdrawal left Timor-Leste’s formal
judicial sector depleted of human resources and with extensive damage to its physical
infrastructure posing serious and enduring obstacles for the administration of justice.37
On 7 January 2000, Sergio Vieira de Mello appointed a corps of ten Timorese judges and
prosecutors for an initial period of two years.38 In a move perhaps designed to demonstrate
immediate commitment to domestic involvement in the reconstruction effort, de Mello
decided to appoint the Timorese judges even before a court structure was established.39
In March 2000, UNTAET established a civil law court system comprising eight district
courts of first instance with jurisdiction over civil and criminal matters and one Court
of Appeal.40 Two months later UNTAET reduced the number of courts to four district
courts due to the scarcity of qualified legal professionals and general lack of resources.41
This reduced court structure remains unchanged to the present day, albeit the Constitution
of Timor-Leste makes provisions for further courts.42 A Public Prosecution Service was
established in June 2000.43
Most of the newly appointed Timorese judges held law degrees from Indonesia but
34
Ibid., para 2.
35
Ibid; Report of the Secretary General on the United Nation’s Transitional Administration
in East Timor, UNSCOR, UN Doc S/2000/53 (26 January 2000). See also Conflict, Security
and Development Group, ‘Review of Peace Operations: East Timor Section: Rule of Law and
Administration of Justice’ (Kings College, 10 March 2003) paras 220, 237. Astri Suhrke, ‘Reason
and Reconstruction: The Multiple Logics of UNTAET’ (unpublished paper prepared for the NFR
conference, Oslo, 18–19 January 2001) 4.
36
Interviewees P and Q.
37
S/1999/1024 (4 October 1999) para 22 & para 33. Report of the Secretary General on the United
Nation’s Transitional Administration in East Timor, UNSCOR, UN Doc S/2000/53 (26 January
2000) para 44. See also Hansjörg Strohmeyer, ‘Collapse and Reconstruction of a Judicial System:
The United Nations Missions in Kosovo and East Timor’ (2001) 95(1) American Journal of
International Law 46, 54 (noting that neither the UN nor the international community could deploy
an adequate number of international lawyers with enough knowledge of the legal traditions of the
administered territories at such short notice).
38
On the Establishment of a Transitional Judicial Service Commission, UN Doc UNTAET/
REG/1999/3 (3 December 1999). Strohmeyer, ‘Collapse and Reconstruction of a Judicial
System’, 52 (generally for a detailed overview of the judicial reconstruction process during
UNTAET).
39
Linton (n 14) 134. Strohmeyer, ‘Collapse and Reconstruction of a Judicial System’, 54.
Conflict, Security and Development Group, ‘Review of Peace Operations’, paras 230–231.
40
On the Organization of Courts in East Timor, UN Doc UNTAET/REG/ 2000/11 (6 March
2000). See also Conflict, Security &and Development Group, ibid.
41
Amending Regulation No. 2000/11, UN Doc UNTAET/REG/2000/14 (10 May 2000).
42
Constitution of the Democratic Republic of Timor-Leste, s 123. Status quo confirmed by
Interviewee H.
43
On the Organization of the Public Prosecution Service in East Timor, UN Doc UNTAET/
REG/2000/16 (6 June 2000).
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only a few had previous practical legal experience.44 Recognising the urgent need for legal
training, UNTAET adopted an interim three-tiered strategy including short courses for
judges, prosecutors and defenders pre-appointment; ongoing training upon appointment;
and a mentoring programme in which a pool of experienced international practitioners
would serve as ‘shadow’ judges and prosecutors working with local judges on individual
cases without exercising judicial power.45 Subsequently, international legal practitioners
were engaged to act as judges co-determining cases with the Timorese judges, until the
expulsion of all international judicial officials in late 2014.46
With the enormous task of rebuilding the justice sector in Timor-Leste, UNTAET
found itself in unchartered territory with very few guidelines.47 Sergio Vieira de Mello
commented on the difficulties he encountered in converting a peacekeeping mandate into
a development programme with virtually no experience or guidance from the Department
for Peacekeeping Operations (DPKO) and Security Council.48 These difficulties are
mirrored in the mixed reviews of UNTAET’s efforts in Timor-Leste.49 Its justice work
in particular has been criticised for UNTAET’s lack of experience and capacity and for
its narrow focus on peace-keeping and military concerns which left scant room for the
creation and development of the non-criminal areas of law associated with day-to-day
governance.50 Most notably, UNTAET did not seek adequate local consultation and
participation in rebuilding Timor-Leste’s justice sector and did not develop a longer-term
strategy that went beyond the initial emergency needs. UNTAET’s lack of a long-term
legal training strategy to produce more lawyers exemplifies this.51
44
Conflict, Security and Development Group (n 39) para 231. Also, Interviewee K.
45
Hansjörg Strohmeyer, ‘Building a New Judiciary for East Timor: Challenges of a Fledgling
Nation’ (2000) 11 Criminal Law Forum 259, 273.
46
UNDP, ‘Project Document: Consolidating the Democratic Rule of Law and Peace Through
a Strong Justice System in Timor-Leste (Revised Justice System Programme): 2014–2018’ (October
2013), 3. See also Judicial System Monitoring Programme (JSMP), ‘Dismissal of international
officials and advisors in the Timor-Leste judicial sector’ (December 2014).
47
Astri Suhrke (n 12), 6–7: observing UNTAET staff’s lack of experience with ‘governance
missions’ and the lack of country knowledge. Also Conflict, Security and Development Group (n
39), para 220.
48
Downie (n 25), 32. Also Conflict, Security and Development Group, ibid.
49
See for example Downie ibid., 39; concluding that with the notable exception of the justice
sector, many of UNTAET’s achievement were laudable. For an opposing view see Chopra (n 11),
979–1000: criticising UNTAET for being a social and political engineering project that largely
excluded the East Timorese. See also Gorjao (n 11), 314: referring to UNTAET’s efforts as ‘a clas-
sic case of decolonization’. Boris Kondoch, ‘The United Nations Administration of East Timor’
(2001) 6(2) Journal of Conflict and Security Law, 245, 246.
50
Interviewees P and Q. See also Conflict, Security and Development Group (n 39), para 229.
Richard Zajac-Sannerholm, ‘Looking Back, Moving Forward: UN Peace Operations and Rule
of Law Assistance in Africa, 1989–2010’ (2012), 4 Hague Journal on the Rule of Law, 359, 367:
Zajac-Sannerholm disaggregates data from UN missions in Africa between 1989 and 2010 into
seven different rule of law areas and proceeds to show that peace-keeping and peace-building mis-
sions emphasise different areas of rule of law, specifically law enforcement, judiciary and prisons vs
constitutional reform and public administration.
51
A formal judicial training centre, now known as the Legal Training Centre, was only estab-
lished in 2003 with the assistance of UNDP’s Justice Sector Programme training an initial cohort of
29 probationary judges, prosecutors and public defenders until their permanent appointment in
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Local commentators also described the confusion and uncertainty that characterised
the UNTAET days due to the presence of a multitude of peacekeeping and development
actors and a lack of coordination and cooperation among them.52 They criticised the
lack of clarity about which legal system should be pursued, noting that different legal
consultants chose different approaches and styles.53
There was an expectation by some UN members that other donors would come in after
UNTAET and take primary responsibility for longer-term development underlining the
UN’s vision of a two-phase approach.54 However, the involvement of other international
donors was minimal. The World Bank, for example, together with Timorese experts
conducted a joint assessment in late 1999 identifying a broad range of pressing legal devel-
opment priorities but appeared only modestly invested between 2000 and 2002.55 Other
donors, such as Australia, provided immediate emergency and humanitarian assistance
and began to pursue medium-term development goals including the establishment of an
independent democratic government and functioning public service from 2001 onwards.56
Notably, 50 per cent of Australian aid to Timor-Leste between 1999 and 2003 went to
the governance sector, none of which appears to have been spent on justice development
work.57
In summary, the objectives of the international community, led by UNTAET, during
the post-conflict and reconstruction phase were narrowly focussed on emergency relief
and the establishment of a skeletal, but functioning, formal justice sector with an
emphasis on courts and prisons. Little consideration was given to longer-term develop-
ment objectives.58 Regrettably, the political aspirations (‘handover’) moulded the ways in
2007. For more details see UNDP, ‘Project Document: Consolidating the Democratic Rule of Law
and Peace Through a Strong Justice System in Timor-Leste (Revised Justice System Programme):
2014–2018’, October 2013. For a critical review see Cohen and Lipscomb (n 15), 10: claiming the
LTC has failed to develop a training regime that can produce competent legal professionals.
52
Interviewees B, D, I, Q and P.
53
This tension between rule of law development models was also apparent in Vietnam. See
Nicholson and Low (n 2), 1–43.
54
See comments made by Peter Burleigh, Deputy Representative of the United States to the
UN, (in ‘Security Council establishes UN Transitional Administration in East Timor for Initial
Period until 31 January 2001’, Security Council Press Release, UN Doc SC/6745 (25 October 1999).
Also Suhrke (n 12), 11.
55
World Bank, ‘East Timor: Building a Nation – A Framework for Reconstruction and
Development: Joint Assessment Mission: Governance Background Paper’, November 1999, 7–10.
See Sarah Cliffe, ‘The Joint Assessment Mission and reconstruction in East Timor’ in James J Fox
and Dionisio Babo Soares (eds), Out of the Ashes: Destruction and Reconstruction in East Timor
(ANU Press, 2003) 234–42. Independent Evaluation Group, ‘Evaluation of World Bank Group
Program: Timor-Leste Country Program Evaluation, 2000–2010’ (World Bank Group, 29 April
2011) 68.
56
Australian National Audit Office, ‘Aid to East Timor: Australian Agency for
International Development’ (The Auditor General, Audit Report 20, 2003–2004, Performance
Audit) 30.
57
Ibid., 51. Governance priorities in the interim country strategy included: civil service, sup-
port for democratic systems, economic management and revenue collection, and strengthening civil
society (109).
58
S/1999/1024 (4 October 1999) para 34.
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which court-focussed legal sector reform could be conceived. However, partway through
UNTAET’s mission it became clear that the UN’s handover ambitions would not be
realised and that the enormity and difficulty in rebuilding Timor-Leste’s justice sector
would require long-term international support.59
Court-focussed Rule of Law in Development (2002–present)
In contrast to the reconstruction phase, the development phase is marked by a prolifera-

tion of donors (including among others World Bank, UNDP, AusAID (now Australian
Aid) with wide-ranging, if more traditional, development goals and activities, such as
capacity building and access to justice.60 Although, as noted, the differences across the two
periods should not be assumed, there was a marked contrast, at least in terms of actors
and ambitions within this second phase.
Donors in this phase, however, were criticised for being overly ambitious, having
unwieldy programme designs and for following a normative institutional capacity
development model that was ‘unimaginative’ and overly reliant on international technical
advisers and expertise.61 The World Bank, for example, was robustly criticised for lack
of strategy, failing to recognise and develop the existing civil law tradition and the severe
constraints in Timor-Leste.62 Portugal was criticised for paying ‘insufficient regard to
local institutions and development context’ and thereby creating ‘unintended bottlenecks
in institutional performance’.63 The lack of timely alignment with government priorities
and systems and insufficient regard for weaknesses within organisations and the wider
institutional and developmental context is now recognised as a problem, although this was
already evident during the UNTAET period.64 Overall, many justice programs during this
phase have been rated poorly by independent international evaluators and deemed to have
achieved very little.65
Additionally, the 2006 political crisis highlighted the vulnerability of the new adminis-
tration. The change in political leadership and the breakdown in law and order placed a
heavy burden on the justice sector, hindered the implementation of assistance programs,
59
Report of the Secretary General on the United Nations Transitional Administration
in East Timor (for the period 27 July to 16 January 2001), UNSCOR, UN Doc S/2001/42 (16
January 2001) para. 50. Report of the Secretary General on the United Nations Transitional
Administration in East Timor, UNSCOR, UN Doc S/ 2002/432 (17 April 2002) paras 17, 18, 19.
60
Independent Evaluation Group (n 55), xv. Australia Aid, ‘Overview of Australia’s aid
program to Timor-Leste’, http://dfat.gov.au/geo/timor-leste/development-assistance/Pages/devel
opment-assistance-in-timor-leste.aspx.
61
Office of Development Effectiveness, ‘Evaluation of Australian Aid to Timor Leste’ (2014),
59. G Peake, B Pearce, R Perry and E Scheye, ‘AusAID Timor-Leste Justice Sector Support
Facility: Independent Completion Report’, April 2012, 5; criticising the Justice Sector Support
Facility’s design as overly ambitious and unwieldy and based on a normative institutional capacity
development model that is unimaginative.
62
Independent Evaluation Group (n 55), 68.
63
OECD-DAC, ‘Peer Review of Portugal’, 2006, 41; noting also that in the case of Timor-
Leste a strict application of language proficiency standards generated unintended bottlenecks in
institutional performance.
64
Office of Development Effectiveness (n 61), 33.
65
Ibid., 59; Independent Evaluation Group (n 55), 53.
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invalidated many assumptions upon which these programs were based and delayed or
disrupted long-term development goals.66
3. COURT-FOCUSSED RULE OF LAW: LOCAL ACCOUNTS
Local perceptions of court-focussed rule of law aid echo many of these criticisms. Local
accounts also demonstrate how the interactions between international and local actors
shaped the trajectory of Timor-Leste’s justice sector development. In particular, we observe
how the UN’s approach to ‘handover’, which strongly favoured certain local key players over
others, had implications for vision and sustainability of reforms across the two time periods.
Although issues of language policy (see below), different understandings of the concept
of ‘rule of law’ and collisions between the formal and informal legal system have been
well documented in earlier literature on Timor-Leste’s justice development, they remain a
primary concern more than a decade later according to our local interviewees.67 Finally, our
interpretation of the local optics reveals how the lack of an early common vision for justice
reform resulted in the recent local contest over ownership of the reform agenda.
For example, there was no indication that local interviewees had a sense of overall
strategies or approaches to justice development work amongst international development
actors, beyond being aware of individual programs or initiatives.68 This is all the more
surprising given the very few judges in Timor-Leste from 2002 to 2015: commencing with
eight and peaking at 40.69 The exception is the UNDP which according to local voices
‘significantly helped the development of Timor-Leste’s justice system’ with its initiatives
including the funding of international judges, the mobile courts and support of the Legal
Training Centre.70 In particular, the mentoring aspect of the international judges’ assis-
tance was greatly appreciated by local judges. Other programme initiatives were, however,
not commented on by the interviewees, or only in passing.
It was also suggested that aid given by internationals to other institutions has some-
times lacked quality and experience because advisers had been chosen based on personal
connections and not on merit.71 Some of the international judges were criticised for being
driven by political interests or only being in Timor-Leste for the money.72
Local commentators, however, also noted that UNTAET withdrew too early and that
some local justice institutions were not ready to function unsupported.73 More recently,
local judges voiced their confidence about their growing abilities to deliver justice and the
increasing capacity of the courts and the justice system more generally.74 Concurrently,
66
UNDP, United Nations Development Programme in Timor-Leste: Project Document’,
2008, 6; Independent Evaluation Group, ibid., 9.
67
For example interviewees A, B, C, D, G and H.
68
Interviewees J, K, L and Q.
69
JSMP, ‘Overview of the Justice Sector: 2014 JSMP Annual Report’ (2014) 26.
70
Interviewee J.
71
Interviewees I and P.
72
Interviewees H and J.
73
Interviewee D and G.
74
For example, interviewees I, J, K, L and O.
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the majority argued the need for ongoing support of international judges, at least for a
little while longer.
International Local Dynamics: Dialogue, Ownership, and Political Commitment
Notions of local ownership are widespread in development discourse urging the inter-
national community to enable local actors to have critical input into the development
trajectory.75 Accordingly, UNTAET’s mandate called for close consultation and coopera-
tion with the Timorese.76 But UNTAET’s engagement with local actors has been widely
criticised for being non-existent, rhetorical or, at best, narrowly focussed on a small elite
group of the Timorese leadership. 77
In the lead-up to UNTAET’s establishment, local actors were largely excluded from
strategic and long-term planning. This culminated in a UN mission without a local
counterpart and equipped with staff that had no country expertise or knowledge of local
languages.78 Notably, the UN formulated no action plan for a transition period or if it did,
Rodrigues claims, such a plan was never shared with the Timorese leadership.79
UNTAET subsequently put in place consultative and participatory mechanisms, such
as the National Consultative Council; the Transitional Judicial Service Commission and,
in July 2000, the first Transitional Cabinet and Parliament (the National Council).80
75
Benjamin Van Rooij and Pip Nicholson, ‘Inflationary Trends in Law and Development’
(2013) 24 Duke Journal of Comparative and International Law, 297, 344: observing that although
there is much rhetoric around consultation and local ownership, most paradigms in the law and
development literature are designed by outsiders and based on a Western model of law; see also
Yasutami Shimomura and Izumi Ohno, ‘Introduction and Overview’ in Izumi Ohno (ed.) True
Ownership and Policy Autonomy: Managing Donors and Owning Policies (GRIPS Development
Forum, 2005) 1, 2–9: defining ownership to include the capacity to determine aid agendas locally;
cf., Kweku Ampiah, ‘The Discourse of Local Ownership in Development: Rhapsodies About
“Self-Help” in Japan’s Economic Assistance to Africa’ (2012) 32 Japanese Studies 168, 179: noting
that ‘self-help’ in Japan is ‘more an exhortation than a well-defined and coherent principle’. For a
critical view of the concept of ownership in the peace and statebuilding literature in particular see
for example Simon Chesterman, ‘Ownership in Theory and in Practice: Transfer of Authority in
UN Statebuilding Operations ‘(2007) 1(1) Journal of Intervention and Statebuilding 3–26; Oliver P
Richmond, ‘Beyond Local Ownership in the Architecture of International Peacebuilding’ (2012)
11(4) Ethnopolitics 354–75.
76
77
Interviewees A and D. See Chopra (n 11), 984; arguing that consultation was nothing but a
courtesy; Gorjao (n 11), 320; criticising the Timorisation process as being ‘mainly cosmetic’ since
the political power remained solely with UNTAET Also argues that this drove the Timorese elite to
push for independence. Also on the slow process of Timorization: Suhrke (n 12), 12.
78
See Roque Rodrigues Secretary of State for National Defence in Timor-Leste in Nassrine
de Rham-Azimi and Li Lin Chang (eds), The United Nations Transnational Administration in East
Timor UNTAET: Debriefing and Lessons: Report of the 2002 Tokyo Conference (Martinus Nijhoff
Publishers, Leiden/Boston, 2003), 28; contending that the UN maintained its policy of neutrality
instead of pursuing policy of partnership with East Timorese leadership. See also Suhrke ibid., 11.
79
See Roque Rodrigues ibid., 29.
80
For more information on the first Transitional Cabinet and the National Council see Simon
Chesterman, ‘East Timor in Transition: Self-determination, State-building, and the United
Nations’ (2002) 9(1) International Peacekeeping 45, 68; Lydia M Beuman, Political Institutions in
East Timor: Semi-Presidentialism and Democratisation (2016, Routledge), 43.
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Although UNTAET sought to share power with the Timorese through these institutions,
it, and specifically the Transitional Administrator Sergio Vieira de Mello, retained the
ultimate decision-making power.81 As one former member of the National Council
contends, UNTAET used these mechanisms mainly to ‘rubber stamp’ its decisions and
regulations.82 Local and international critics also questioned whether the UN in Timor-
Leste used notions of local ownership to assign responsibility for failures to the Timorese
thereby covering its own shortcomings.83
Despite the lack of broad consultation, UNTAET maintained throughout its rule
a dialogue with the CNRT (the National Council of Timorese Resistance)84 viewing
it as the vehicle for UNTAET’s consultations with the Timorese population.85 In
particular de Mello was said to have built a strong relationship with the CNRT’s
president, Xanana Gusmão, thereby enabling early expectations of local ownership
over the reform agenda within a small select group.86 The following two examples
demonstrate the CNRT’s influence over Timor-Leste’s justice reform trajectory putting
it at times at odds with UNTAET’s strategies as well as with the needs of the Timorese
people.
Under UNTAET, the working languages of the justice system were Tetum, English,
Portuguese, and Bahasa Indonesia.87 In imposing, and perhaps favouring English,
a language only spoken by around 2 per cent of the Timorese population at the
time, some local critics claim the UN effectively hindered local participation in the
development process.88 But the choice of Portuguese as one of the official languages
alongside Tetum is no less contentious. According to Kingsbury, the language ques-
tion was decided in 2000 at a CNRT meeting when the lusophone-dominated CNRT
board, overruling the majority from the floor, chose Portuguese as one of the official
languages.89 Because the majority of Timorese did not understand Portuguese, at the
81
Beuman ibid.
82
Interviewee R (recalls often having abstained from voting because the content or the
potential implications of certain regulations were not made clear). According to Gusmão the NCC,
which he joined, was ‘there to put our rubber stamp on Sergio’s regulations, to allow the UN to
claim to be consulting’ in Samantha Power, Chasing the Flame, 307. Conversely Chopra (n 11),
990f. criticising the National Consultative Council (NCC), which later became the National
Council (NC), of giving voice exclusively to the CNRT. But agrees that neither the NCC nor the
NC had legislative power.
83
Chesterman (n 80), 68: citing a letter written by members of the First Transitional Cabinet
to the SRSG wherein they complain that they are being used to justify delays and the confusion in
a process that is outside of their control. Cohen and Lipscomb (n 15), 3.
84
National Council of Timorese Resistance or Conselho Nacional de Resistência Timorense
(CNRT). The CNRT was the ‘peak body’ for East Timor’s resistance organisations. CNRT was
also UNTAET’s principal partner in the transitional administration of East Timor. See Tais Timor,
‘UNTAET considers alternative proposals for East Timor administration’, Vol I, No. 9 (12–25 June
2000), https://peacekeeping.un.org/mission/past/etimor/untaetPU/newsletter9E.pdf (last visited 26
March 2018)
85
Simon Chesterman (n 80), 64.
86
Interviewees A and C.
87
Regulation 2000/11 (n 40), s 36: ‘The working languages of the courts in East Timor, during
the transitional period, shall be, as appropriate, Tetum, Portuguese, Bahasa Indonesia and English.’
88
Interviewee R. Also Roque Rodrigues, (n 78), 29.
89
Kingsbury (n 19), 23.
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time, this decision was said to separate members of the Portuguese-speaking elite,
Lusophone government officials and judiciary from the overwhelming majority of
non-Portuguese speakers.90
Although this creates continuing challenges for the administration of justice, local
judges have taken a pragmatic approach when dealing with Timor-Leste’s multi-lingual
reality.91 Many use Tetum in court proceedings and reserve Portuguese for the written
judgements and sentencing decisions.92 Others informally use local dialects.93 The use of
Tetum not only helps everyone’s understanding during the proceedings but also gives local
judges a greater sense of ownership, according to one local judge.94
Another example is UNTAET’s reliance on the CNRT95 administrative systems to carry
out a range of post-conflict activities at district level including: reintegration of displaced
persons; distribution of aid; justice-related matters; and the reconstruction challenges.96
These systems dated from the time after UNAMET’s departure in 1999 and the impend-
ing withdrawal of Indonesia when Timor-Leste is said to have relied on an interconnected
network of suco (villages)97 and resistance administrative systems.98 Although the UN,
against local and international advice, chose to exclude the customary justice mechanisms
from the new justice structure it designed for Timor-Leste, it gave the CNRT, according to
Chopra, de facto control in the field by continuing to use its systems.99 UNTAET’s deci-
sion to marginalise the informal justice system, but simultaneously to rely on CNRT and
90
Ibid. See also Cohen and Lipscomb (n 15) 3. Conflict, Security and Development Group
(n 39), para 243.
91
As a recent survey demonstrates: 31 per cent of respondents who had been to court, said
that the proceedings were not conducted in their preferred language. Furthermore, 29 per cent
of respondents said that they did not understand the legal procedures while in court. See Asia
Foundation, ‘Survey on Citizen Awareness and Attitudes’ (2008) 15. See also The Centre for
International Governance Innovation (CIGI) ‘Security Sector Reform Monitor: Timor Leste’
(January 2011) 2: which found that the ‘formal judicial process [is] still widely seen as exclusive by
the majority of the population due to its legal complexity and the use of Portuguese (sometimes
translated, mistranslated or paraphrased) in trial proceedings and prosecutorial investigations’.
Interviewee J (on the difficulties he experiences with Portuguese because it is so technical. But
remarks that now ‘for nearly everything I can consult the dictionary, the internet, or more experi-
enced colleagues’).
92
Interviewees H and I. See also, Jose Ramos Horta, ‘Timor Leste, Tetum, Portuguese,
Bahasa Indonesia or English?’, The Jakarta Post, 20 April 2012, http://www.thejakartapost.com/
news/2012/04/20/timor-leste-tetum-portuguese-bahasa-indonesia-or-english.html.
93
Interviewee J.
94
Interviewee G.
95
CNRT (see n 84).
96
Rod Nixon, Justice and Governance in East Timor (Routledge, 2013), 117–18.
97
Sucos or villages traditionally reflect customary units such as clans or families (although they
are widely interconnected across many other sucos) and may contain a localised ethnic identity.
During their colonial rule of Timor-Leste the Portuguese divided the administrative districts into
sub-districts (posto), villages (sucos) and hamlets (aldeias) and appointed suco chiefs and aldeia
chiefs as conduits to the local population. Sucos remain one of the smallest political units in Timor-
Leste and important to the majority of Timorese citizens.
98
Nixon (n 96), 117.
99
World Bank (n 55) 8; on advice to maintain traditional justice system; Jarat Chopra, ‘The
UN’s Kingdom of East Timor’ (2000) 42(3) Survival 27, 32; Nixon ibid., 117–18.
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the informal justice system to administer justice, contributed to the resultant competition
between these two justice systems (formal-informal).100
Overall, UNTAET pursued a justice reform strategy that can be described as top-down
and relying on the ‘import’ and ‘copy and paste’ of state institutions as described by local
interviewees.101 This marginalisation of pluralism in the Timorese legal system, costs the
rule of law project in that country its legitimacy, according to Grenfell.102 It also poses the
real risk that imports, which do not resonate with the Timorese site and experience, are not
implemented or experience only moderate local adaptation.103 Concurrently, UNTAET
did not broadly engage with the Timorese as local comments about international donor
staff’s arrogance and lack of capacity building and trust attest.104 But UNTAET allowed
a small leadership group, not necessarily representative of the Timorese people, to develop
and pursue their own vision for justice reform in Timor-Leste. This, we argue, laid the
foundations for the contest over ownership of the reform agenda we witness today.
In the subsequent ‘development’ phase, donors (now more diverse) engaged and
discussed aid development with a broader group including: the nascent legal profession;
judges; prosecutors; security personnel; along with government elites. In particular, the
radical increase in donor-judge dialogue during the development phase brought with it
some (though not absolute) trust and reliance between the local judges and their interna-
tional colleagues. This development is antithetical to, or at least threatening, the capacity
of government, made up of the former CRNT leadership. Arguably new elites wield
power in particular ways and for particular purposes. As we will see below, the expulsion
of the international judges is seen by some as a direct response to this threat.
Based on local perceptions, the reform process in Timor-Leste is now driven by the
government rather than by international donors, although the continuing need for
donors’ advice and their strong influence in justice sector reform has been acknowl-
100
Interviewees A and D. See for example, Laura Grenfell, ‘Legal Pluralism and the Rule
of Law in Timor Leste’ (2006), 19 Leiden Journal of International Law 305–37; Council of
Coordination for Justice, ‘Justice Sector Strategic Plan for Timor-Leste: 2011–2030’ (Dili, 12
February 2010) 10; Laura Grenfell, ‘Promoting the Rule of Law in Timor-Leste’ (2009), 9(2)
Conflict, Security & Development 213–38; citing for example the World Bank’s assumption that
the state has the monopoly on coercive power, when in reality non-state leaders at village level and
suco level continue to hold much of this power. Similarly, Oliver Richmond and Jason Franks,
‘Liberal Peacebuilding in Timor-Leste: The Emperor’s New Clothes?’ (2008), 15(2) International
Peacekeeping 185, 187: arguing that the liberal peace model which is institutionally oriented,
neoliberally aimed and constructed around the elite governance has failed the Timorese people.
Carolyn Graydon, ‘Local justice systems in Timor-Leste: Washed up, or watch this space?’
(Development Bulletin, No 68, October 2005) 66–70.
101
Interviewees G, I and M.
102
Legitimacy in Grenfell’s analysis is understood as the local authority to create and enforce
rights and obligations, for example an agreement made between local leaders, in contrast to
legitimacy obtained through democratic processes or based on credentials as representative of the
international community, as is the case with the United Nations. Laura Grenfell, ‘Promoting the
Rule of Law in Timor-Leste’, 231.
103
For example the World Bank supported the establishment of an Ombudsman Office in
2006. Characterised as only moderately effective, its difficulties were attributed to the lack of fit
between the institution and the civil law system upon which Timor-Leste is modelled. Independent
Evaluation Group (n 55), 56. Also Interviewee J.
104
Interviewee B.
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edged.105 Efforts to increase local ownership such as the establishment of the Council
of Coordination (CoC), which now serves as the national coordination mechanism for
the justice sector, underline this perception.106 Further, the introduction of Timorese
laws is widely seen as a step in the ‘right direction’ by local interviewees.107 Nevertheless,
Timor-Leste’s first Justice Sector Strategic Plan (JSSP) was only published in 2010, with
the support of international donors and has since become the subject of ‘significant
controversy’ over whether it and the Planning Secretariat are appropriately ‘owned’ by
Timor-Leste.108 And as we see below, local interviewees did not feel that they ‘owned’
either the court development dynamics, or all outcomes. Significantly, there are a range
of views about the ownership of court development and its trajectory: evidencing a split
locally.
Local ownership needs to be supported by political commitment for reforms to have
any traction, as a growing body of literature describes. Kahn-Freud, writing in the
mid-1970s, concluded that the transplantability of rules and institutions emphasises the
importance of political considerations above all other factors.109 In particular, a variation
in the organisation of power between one country and another produces lack of political
support which can prevent or frustrate the transfer of legal institutions.110 As Nicholson
demonstrates in her study of Vietnamese socialist borrowing from Soviet Russia, the
Vietnamese political commitment to socialism enabled rapid transformation and adapta-
tion of principles and institutions for a ‘socialist’ conception of justice.111 Put differently,
as we show, the contestations about the law reform agenda, and the role of courts within
it, preclude a unified national view of the reform agenda and sharply curtail the likely
implementation of a common vision for law reform.
Although donors have, albeit slowly, attempted during the development phase to
mould their justice sector work to the vision and priorities of the Timorese government,
105
Interviewees G and J.
106
Art. 18, Organic Law of the Ministry of Justice; also UNDP, ‘United Nations Development
Programme in Timor-Leste: Project Document’ (2008) 7 (the CoC was initially developed as a
coordination mechanism between the courts, prosecution and the Ministry of Justice for the imple-
mentation of the UNDP-supported Justice System Programme (JSP), but was officially recognised
in 2008 as the national coordination mechanism for the justice sector).
107
For example, the Civil Code in 2011 and the Civil Procedure Code in 2006, also the Law
on Domestic Violence in 2010. For details on the development of the Civil Code and issues and
difficulties surrounding the legislative process see East Timor Justice Bulletin, ‘The Civil Code and
Legislative Dynamics in the National Parliament’ (10 October 2011), http://www.easttimorlawand-
justicebulletin.com/2011/10/civil-code-and-legislative-dynamics-in.html. Interviewees H & J.
108
Peake et al (n 61), 6. The ‘Justice Sector Strategic Plan for Timor-Leste: 2011–2030’ was
prepared following a series of workshops and other consultation mechanisms including inputs
from working groups having representatives from national justice institutions, civil society and the
international community. Council of Coordination for Justice, ‘Justice Sector Strategic Plan for
Timor-Leste: 2011–2030’, Dili, 12 February 2010, 5–6.
109
Kahn-Freud (n 5), 12; in particular, he urges comparative lawyers to ask to what extent
a rule or legal institution owes its existence or continuing existence to a distribution of power in
the country of origin which does not exist in the recipient country. See also Berkowitz, Pistor and
Richard (n 6).
110
Kahn-Freud ibid., 13.
111
Nicholson (n 4), 236–8; also Berkowitz, Pistor and Richard (n 6).
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the 2006 crisis demonstrates how vulnerable justice work is to political vagaries.112
AusAID (now Australian Aid)’s Justice Sector Support Facility programme, for
example, was initially planned and designed in late 2006 at the end of one Timorese
administration whilst implementation began in mid-2008 under another. The new
administration had not been consulted in detail as to its vision of law and justice
assistance and consequently did not offer any political support or commitment for the
programme.113
Contesting Ownership: Local Competition to own Reform
Our focus on local ownership in Timor-Leste begs the question who owns justice sector
reform locally? As mentioned above, there were several players in law reform with very
different views about what was best for court-focussed reform and institutional strength-
ening. As local interviewees suggested at the time, the Timorese government’s reform
agenda did not necessarily correlate with the judges’ reform needs, evidenced by the
modest financial resources the government had so far invested, apparently reluctantly, in
the justice sector and how that money was allocated.114
This view is echoed in the literature where the ‘general neglect in policy, planning and
coordination in justice system development’ has been critically noted as well as ‘significant
delays in engagement by the national political leadership’.115 According to one local voice,
politicians clearly favoured short-term objectives and public consultation as an easy
means to obtain legitimacy for legal reform.116
Since the early days of the post-conflict and reconstruction period to this day, the
judiciary in Timor-Leste has demonstrated a commitment to independence and resistance
to political interference, be it from UNTAET or from the Timorese government. ‘Political
robustness’, local judges claim, is something they have learnt from their international
colleagues.117 And yet, some international voices criticise certain judicial decisions as
clearly politically motivated.118 This criticism, perhaps, gives credence to the claim made
by international donor representatives that the dynamics in Timor-Leste are personality-
driven and that the robustness and progressiveness of an institution correlates to the
strength of its leadership.119
112
See adjustments donors made to their programs to follow the Timorese governments
agenda: UNDP, ‘United Nations Development Programme in Timor-Leste: Project Document’
(2008); Independent Evaluation Group, ‘Evaluation of World Bank Group Program’. See also
Peake, Pearce, Perry and Scheye (n 61) commenting that donors were slow to adapt to the Timorese
reform agenda.
113
Democratic Republic of Timor-Leste, IV Constitutional Government Program 2007–2012
(2007). See also Peake, Pearce, Perry and Scheye ibid., 5: describing the new administration’s lack
of political support for justice development in its five-year plan.
114
Interviewees D, I and Q.
115
CIGI Security Sector Reform Monitoring (n 91), 5.
116
Interviewee C.
117
Interviewee D.
118
The trial and conviction of Lucia Lobato (the former Minister of Justice) was mentioned as
an example of a politically motivated decision by the court. Interviewees S and T.
119
Interviewees S and T.
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In 2000, Timorese judge Rui Perreira dos Santos refused to apply a new UNTAET
regulation in the hearing of Victor Alves, a former Falintil member accused of killing a
pro-Indonesian leader in 1998. The judge regarded the UNTAET regulation, which had
been rushed through one day before the hearing and which could have been fatal to Alves’
application for release, as an act of political interference by Sergio Vieira de Mello.120 The
judge’s refusal is said to have considerably damaged relations between the UN and the
judiciary.121 Ironically, without UNTAET’s intervention there would have been no local
judges at this time, let alone any protesting the interference of political actors.
In 2006, Portuguese judge Ivo Rosa challenged as unconstitutional President Ramos-
Horta’s decision to suspend the court warrant against Major Alfredo Reinado. Reinado
was involved in a violent conflict between his rebel group and government soldiers and
police, which left five people dead. Judge Rosa questioned the President’s power to
suspend a court order for arrest and criticised the President for trying to violate the
separation of powers and undermining the courts and the rule of law.122 Grenfell argues
that President Ramos-Horta’s approach to rule of law was favouring reconciliation
and stability of the state through offering Reinado amnesty if he surrendered and
faced justice.123 The UN’s understanding of rule of law, in contrast, rejects amnesty for
serious crimes and in this particular case was concerned with questions of impunity.124
Fretilin,125 conversely, was focussed on the lack of respect given to the separation of
powers by external actors and state institutions, specifically here the presidency.126
Finally, the Minister of Justice reportedly threatened to terminate foreign judges’
contracts if they did not ‘perform well’ (presumably meaning support the government)
and President Ramos-Horta advised foreign judges to show more respect for the
democratically elected leaders.127
Finally on 24 October 2014, both the National Parliament and the Timorese Council
of Ministers, led by Prime Minister Gusmão, adopted resolutions that demanded an
audit of the judicial system and ‘for reasons of force majeure and national interest’ called
for the termination of all contracts of international advisers in the judiciary, the Public
Prosecution Service, the Public Defenders’ Office, the Anti-Corruption Commission and
the Legal Training Centre.128 On 31 October 2014, the government revoked the working
permits of eight international judicial officers (including five judges) and ordered those
120
For details of the Victor Alves case see for example Linton (n 14), 140ff.
121
Ibid.
122
Ibid.
123
Laura Grenfell, ‘Promoting the Rule of Law in Timor-Leste’ (n 100), 221.
124
For the UN’s definition of rule of law for peace operations introduced in 2004, see UN
Secretary General, Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN
Doc S/2004/616 (23 August 2004) para 6. Also, Grenfell ibid.
125
Revolutionary Front for an Independent East Timor (in Portuguese: Frente Revolucionária
de Timor-Leste Independente or FRETILIN) is a leftist political party in Timor Leste. The party
started as a resistance movement fighting for the independence of East Timor.
126
Laura Grenfell, ‘Promoting the Rule of Law in Timor-Leste’ (n 100), 221.
127
Ibid.
128
See Parliamentary Resolution 11/2014, 24 October 2014 and Government Resolution
29/2014, 24 October 2014 (unofficial English translations available at laohamutuk.org). Also
JSMP, ‘Dismissal of international officials and advisors in the judicial sector’ (December 2014).
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individuals to leave Timor-Leste within 48 hours.129 On 6 November 2014, the Timor-

Leste Superior Council of Judicial Magistrates unsuccessfully declared the resolutions to
expel the international judicial officials as illegal and called on the Timorese government
and National Parliament to revoke them.130
The sudden dismissal of the judicial officials caused great consternation, locally
and internationally. The resolutions have been deemed unconstitutional, inconsistent
with existing Timorese laws, in breach of human rights, and procedurally irregular.131
According to local judges, this latest event, in what can be described as a series of con-
flictual encounters between the government and the judiciary, is clearly seen as political
interference.132 Some were concerned about future interference.133
As NGO activist JSMP outlined in its analysis, this move had the potential for a
number of detrimental impacts on Timor-Leste’s justice sector including: compromising
Timor-Leste’s judicial independence; damaging public trust in judicial institutions; loss of
capacity and resources adversely affecting the ordinary function of courts and other insti-
tutions such as the Legal Training Centre;134 possible delays in legal proceedings; delays
in serious crime proceedings as two international judges are required by law for hearings
by serious crimes panels; and an increased workload for Timorese judges.135 Local judges
shared these concerns.136 Finally, JSMP was concerned about indirect impacts including:
the possible increase in corruption and increased perception of corruption; impact on
investor confidence in Timor-Leste; relations with Portugal; and the Community of
Portuguese Language Countries.137 If and how these concerns have played out a few years
on is yet to be assessed.
It can be argued that the government sought to privilege security and peace or ‘national
interest’ over the separation of powers while the newly active judiciary saw this as an
affront to its authority. Schisms of this nature are documented in Latin America138
129
JSMP, ‘Dismissal of international officials and advisors in the judicial sector’ (December
2014).
130
Ibid.
131
Ibid.
132
Interviewees I and Q.
133
Interviewee Q.
134
In November 2014 the Legal Training Centre had to postpone its next training session
because of the departure of its international trainers. Saponoticias, ‘Centro de Formação Jurídica
de Timor-Leste suspende atividades a partir de quarta-feira’ 24 October 2014, http://noticias.sapo.
tl/portugues/lusa/artigo/18422900.html (last accessed 30 January 2016). The Legal Training Centre’s
website gives no information regarding any courses that were conducted in 2015. See Centro de
Formação Jurídica, www. http://cfj.mj.gov.tl/?q=node/46 (last accessed 30 January 2016).
135
JSMP, ‘Dismissal of international officials and advisors in the judicial sector’ (December
2014) 4. Also Interviewee I.
136
Interviewees I, J and K.
137
JSMP, ‘Dismissal of international officials and advisors in the judicial sector’, December
2014.
138
See for example Edgardo Buscaglia, ‘Institutional Factors Determining the Gap between
Laws in the Books vs Laws in Action: An Analytical Framework for Improving Judicial
Effectiveness’ in David Linnan (ed.), Legitimacy, Legal Development and Change: Law and
Modernization Reconsidered (Ashgate, 2012), 289–306: on the importance of political commit-
ment to judicial independence; Raul A Sanchez Urribarri, ‘Politicization of the Latin American
Judiciary via Informal Connections’ in D Linnan (ed.), Legitimacy, Legal Development and Change,
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and in analyses of courts in authoritarian regimes.139 In Timor-Leste’s experience of

post-conflict reconstruction, and its implications for court development, there appears
an inevitable tension about who wants what in a new state. And by carving the stages of
new statehood in two – post-conflict and beyond – the governmental elites are privileged
through their continuous interaction with first the UN and then donors throughout
these time periods. The political elites are empowered to overpower emerging legal elites
structurally through the dispersal of power among local groups from the inception of
UNTAET, ironically even though this sort of distortion was explicitly said to be avoided
by UNTAET.
Another reading of the 2014 event is, however, possible and has gained traction,
according to Cohen and Lipscomb.140 They argue the changes seek to overcome the justice
sector’s severe systemic problems and to sever the dependence on internationals ‘of dubi-
ous competence’. In short, they suggest real reform may only be achieved through political
interference. Although the local judges we interviewed did not offer this interpretation,
there was mention of the ease and regularity with which they relied on their international
colleagues’ knowledge and experience.141 In any event, Cohen and Lipscomb argue, ‘the
era of international dominance is over’.142
CONTINUITY AND CONSULTATION
As noted at the outset, this chapter scrutinised the UN’s two-phase approach in Timor-
Leste characterised, rhetorically at least, by a ‘handover’ of justice institutions at inde-
pendence that separates the post-conflict and reconstruction phase from the development
phase. More particularly, we asked how this paradigm of court-focussed rule of law aid
impacted supply-generated and demand-responsive justice sector development in post-
conflict situations. We sought to elicit this approach’s consequences for Timor-Leste’s
court reform, observing both long-lasting and unintended consequences.
An overview of the court-focussed reform activities of the international development
community (the supply-side) in Timor-Leste during the post-conflict and reconstruction
phase revealed a small pool of actors, mainly UNTAET, narrowly focussed on emergency
relief and the establishment of a functioning formal justice sector with an emphasis on
courts and prisons. Longer-term development goals were not set at this stage. During the
following ‘development phase’ a larger number of development actors pursued a broad,
if standard, menu of rule of law reforms based on longer-term development goals.
We found that UNTAET, based on naïve notions of ‘usual’ practice, promoted a
307–23: describing a phenomenon occurring across Latin America where the empowerment of
courts and the politicisation of the judiciary go hand-in-hand. He observes instances where courts
become apparently strong, only to discover that they are actually carrying out an exogenous agenda
pushed by the executive or other powerful players.
139
See for example Tom Ginsburg and Tamir Moustafa (eds), Rule by Law: The Politics of
Courts in Authoritarian Regimes (Cambridge University Press, 2008).
140
Cohen and Lipscomb (n 15), 1.
141
Interviewees J and K.
142
Cohen & Lipscomb, ‘Justice Reform at the Cross-Roads in Timor-Leste’, 1.
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top-down western model of legal institutions with little or no regard for local conditions
as manifested in the menu of court construction and police empowerment on offer.
Consultation remained aspirational, beyond a small group of politically agile future
leaders. These early choices have continuing impacts in Timor-Leste’s court system to
this day.
Further, the UNTAET mission focussed on ‘handover’ as a (political) phenomenon,
marginalising meaningful planning for and construction of locally sustainable legal
institutions. There was no concrete plan for court-focussed development until 2010 when
the Justice Sector Strategy was introduced. As noted at the outset, quarantining longer
term planning to post-‘handover’, enabled rushed decision-making by UNTAET that
was insufficiently informed about site and context. Over the longer term, the practice also
resulted in marginalising important reform voices not located within the political elite.
The wider development community continued in a similar vein in the subsequent
development phase, promoting reforms that were overly ambitious with unwieldy pro-
gramme designs that paid insufficient regard to local institutions and did not align with
government priorities. As noted, however, this period saw new actors enter the field (both
from donors and locally) and some greater consultation ensued.
Looking at justice sector development in Timor-Leste from the demand-side brought
to the fore local issues and tensions. The international – local dynamics revealed, in
particular, a lack of dialogue, disputes over ownership of court reform and contests
about political commitment to the reform trajectory both between donors and locals and
between locals. The local competition about who ‘owns’ court reform has culminated in
tensions between the Timorese government elite and the emerging legal elite.
Integrating the analysis of both the supply and demand-side of rule of law aid, this
chapter concludes: there was a distinct lack of local ownership of court-focussed justice
sector reforms in Timor-Leste. This is the case during both the post-conflict and subse-
quent ‘law and development’ phases. This lack of ownership, however, has produced its
own dynamics with radically different local accounts of how court-focussed reform is
best realised in the contemporary period. Judges argue they have been marginalised in
court-focussed legal development in Timor-Leste, particularly recently. The lack of local
ownership of legal reform by legal stakeholders, NGOs and also the newly appointed
judges, for example, reflects their marginal role in the early period of post-crisis
reconstruction.
The marginalisation of local stakeholders and their views on court reform arises, we
argue, as a result of several factors. First, as noted, UNTAET eschewed extensive and
local consultation early on, supposedly for fear of privileging any one group contending
for the country’s political leadership. While this is understandable, it precludes critical dia-
logue that might have been established early to inform concurrent longer-term planning
for court reform.
Secondly, UNTAET concurrently relied on the administrator’s well-noted capacity to
form alliances with groups. De Mello’s coalitions, however, marginalised voices calling for
locally shaped legal reform (recognising the plurality of the legal system and delegitimising
Timor-Leste-inspired institutions through the export of Western models, for example).
This limited consultation comes at a cost. There was not a widespread common vision
for reforms brokered at the outset. The lack of dialogue is, at least in part, a contributing
factor to the factional responses to current court reform. We do not suggest it explains
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the current schism entirely, as ironically the courts have sustained their independent voice
despite arguably being a marginal player in reform debates.
We argue embedding local ownership of court-focussed reform, beyond political elites,
is bedrock to ongoing developments in this arena and it cannot be bolted on after a
period of conflict. We argue that Timor-Leste’s justice sector may not have been ready
for ‘handover’ and that the UN’s handover model, aspirational as it is, veiled this reality.
The research also reveals a lack of fluency between the two development phases; or
as Brown, Langer and Stewart argue the need to reimagine interventions to restore and
create sustainable law and order in sites of conflict as a continuum of activity that is
not divided into two phases.143 UNTAET, as chronicled above, aimed for a short-term
engagement to end with Timor-Leste’s independence in 2002. Essentially, the UN and
donors underestimated the need for an ongoing commitment. While not fully explored
here, it is arguable that all parties might have been better served by initiating short-term
and long-term strategies simultaneously, rather than sequentially.
143
Brown, Langer and Stewart (n 16), 4.
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M4581 - MAY_9781786432438_t.indd 530 01/08/2018 14:48
Subject index
access to justice see justice civil law 159, 193–194, 258, 296, 298, 387, 415
accountability 8–9, 14, 370 Commission for the Legal Empowerment of
Aceh 485 the Poor 4, 377, 389, 421–425, 427
administrative law 65, 208–209, 322–332 common law 38, 77, 98, 141, 285, 289, 296, 415
Afghanistan 90, 125, 353, 460, 478, 486 Conectas 263, 265
Africa 65, 189, 228, 259, 339, 416, 426, 434, Congo 317
438, 446, 477 constitutionalism 31, 44, 65, 68–71, 127–130,
African Charter on Human and People’s 139–141, 143, 145, 146, 149–153, 170–176,
Rights 360 178–182, 210–211, 239, 272, 278, 283–285,
Algeria 353 307–321, 344, 354, 454, 494, 494–508
American Bar Association 13, 48, 271, contestability 279–283, 314–320
272–275, 298, 300, 447 contract law 53, 97–99, 106, 197, 286, 312–313,
American Convention on Human Rights 360 383, 386, 388–389, 394, 407, 410–412, 483
Amnesty International 262, 371 corporations 6, 68–69, 72, 99, 291, 293, 310,
Angola 419 314–315, 389, 396, 435, 493
Apartheid 96, 259, 385 corpus juris 137–138, 140
arbitrariness 31, 33, 75–95, 100, 102, 135, 213, corruption 12, 103–104, 369, 392, 407, 413–414
242, 366, 385 criminal law 6, 13, 36, 54, 104–106, 260–263,
Argentina 259, 316, 317 265–269, 303, 343, 383, 412, 440–441, 481
Asia 70, 71, 391, 416, 477, 490–508 customary law 91, 139
Australia 295, 296, 299, 301, 516
Australian Aid 517, 524 Dehli Declaration (International Commission
automation 300–303 of Jurists) 45, 462
democracy 22, 24–28, 30–33, 35, 37, 41, 47, 86,
Bangladesh 428 103–104, 236, 243, 246, 250, 252–253, 255,
Belgium 155, 175 285, 287, 316, 346, 351, 365, 367, 372, 375,
Bertelsemann Foundation 53 399, 413, 477
bilateral investment treaties (BITs) 312 Denmark 422
Bolivia 317, 392 Department for International Development,
Bosnia 479 UK 233, 264
Brazil 257, 258, 260–261, 263, 265–268, 316, discretion 7, 8, 9, 22, 102, 335, 385
401 discrimination 8, 12, 40, 272, 291, 334, 337,
Brazilian Criminal Justice Network 265–266, 340–342, 349–350, 364, 367–368
268–269
Britain 8, 65, 71, 113, 135–143, 277, 289, East Timor 478, 482, 486, 509–529
295–296, 299, 422 economic development 30, 40, 46, 68, 87, 102,
Bulgaria 240, 246 188, 222, 268, 365, 377, 389–391, 400,
Burundi 427, 438 405–418, 419–433, 444, 445
The Economist 4–5, 12, 377
Cambodia 482 Ecuador 317
Canada 71, 111, 120, 126, 387, 422 Egypt 125, 354–355, 422, 499
capitalism 65, 86, 97–98, 184–200, 229, 309, El Salvador 259, 261
311, 315–316, 386, 426 equality 3, 4, 9, 10, 22, 28, 35, 39, 42, 51, 68,
Catholic Church 262, 348 110, 172–174, 178, 198, 213, 338, 340,
Central African Republic 427 367–368, 460–462, 481, 484
Chile 87, 259 Ethiopia 419
China 5, 6, 40, 46, 48, 84, 113, 274, 289, 293, European Convention on Human Rights 9,
339, 391, 411, 438, 490–508 235, 245, 250, 366, 377, 457, 464
531
M4581 - MAY_9781786432438_t.indd 531 01/08/2018 14:48

European Court of Human Rights 243, 373, Inter-American Development Bank

461, 464, 466–468 259
European Court of Justice 238, 240, 244 International Bar Association 45
European Union 2, 5, 68, 113–114, 120, 125, International Centre for the Settlement of
126–130, 214, 235–256, 291, 310, 317–318, Investment Disputes (ICSID) Convention
372–373, 477, 482, 487 316–317, 319
International Commission of Jurists 45,
feudalism 139, 195 361–362, 462
Finland 365, 422 International Country Risk Guide 53
firms see corporations International Court of Justice (ICJ) 248, 362,
Food and Agricultural Organisation 428 365
Ford Foundation 258, 292, 477 International Covenant on Civil and Political
formal legality 29–31, 33, 36–37, 44, 272, Rights 361, 367
275–279, 366–367, 394, 456–460 International Covenant on Economic, Social
France 65, 141, 142, 176, 240, 248, 285, 415 and Cultural Rights 361, 367
Fraser Institute 53 International Criminal Court 310, 365,
Freedom House 12, 53, 55, 371, 414 434–452
French Revolution 143–146, 155 International Development Law Organisation
219
Gambia 438 international investor agreements (IIAs)
General Agreement on the Trade in Services 312–313, 318, 319
(GATS) 312 International Labour Organisation 424, 427,
Georgia 478,487 428
Germany 71, 113, 278, 289, 296, 415 international law 6, 9, 35, 109, 116, 207, 211,
Ghana 419 214, 239, 276, 297–298, 308, 310–319,
Global administrative law see administrative 322–332, 358
law International Law Institute 298
global governance 2, 16, 109, 110, 114–117, International Monetary Fund 34, 190, 219,
118–119, 125, 308, 310, 323 285, 292
globalisation 6, 60, 110, 229, 308, 315, 450 International Relations (IR) 109–131
Grameen Bank 428 Iran 354
Guatemala 422 Iraq 125, 279, 460, 464
Guantanamo Bay 4, 459 Irish Republican Army (IRA) see Northern
Guinea-Bissau 482, 487 Ireland
Israel 71
Habeas Corpus 177–178
Hakí 428 Jamaica 463
Harvard, Kennedy School 233 Japan 52, 284, 296, 490
Heritage Foundation 55 judges 4, 7, 9, 11, 28, 36, 37, 40, 85, 102, 144,
Hong Kong 419, 490, 492 177, 180–181, 232, 257, 266–267, 271, 284,
human rights 9, 11, 12, 13, 28, 35, 39, 40, 335, 344, 354, 361–363, 367, 373, 387, 406,
43, 68, 84, 104, 206, 207, 236, 257, 258, 421, 425, 430, 453, 479, 482, 511, 514–515,
262–263, 268, 283, 297, 310, 351, 357–379, 524
420, 425, 443, 462, 476–477, 481, 514 judicial discretion see discretion
Human Right Watch 259, 262, 263, 269, 371 judicial independence 28, 36, 40, 41, 43, 52,
Hungary 81, 87, 120, 125, 129, 237, 240–241, 180–181, 240–241, 242, 347, 416, 431
245–246, 248, 357, 365 jurisprudence 2–3, 96, 338, 345
justice 28, 38, 39, 105, 118, 125, 172, 208–209,
Iceland 422 233, 249–250, 255, 260, 297, 340, 342, 347,
India 296, 316, 422, 428, 429, 438, 466, 490 390, 420, 424, 427, 434, 439–440, 447, 463,
Indonesia 514 478, 480, 481, 483, 510, 518, 523
institutional economics 93, 189–190, 229, 384,
388, 404, 405 Kenya 428
Inter-American Commission on Human Korea 296, 392, 393, 419, 490, 494, 508
Rights 262, 269 Kosovo 207, 478
M4581 - MAY_9781786432438_t.indd 532 01/08/2018 14:48

Subject index 533
labour rights 377, 424, 427, 483, 492 norms (of the rule of law) 5, 8–9, 14, 16, 28,
Laos 419 45, 62–64, 82–83, 100, 109–131, 186, 254,
Latin America 66–68, 70, 189, 257–270, 395, 384–386, 397–403, 443, 503
415–416, 477, 526–527 North American Free Trade Agreement
Lativia 365 (NAFTA) 312
law and development (as analytical approach Northern Ireland 460–461, 464–466, 469
to rule of law) 69, 88–89, 185, 189, 258, Norway 422–423
416, 419–421, 477
law and economics (as analytical approach to Office of the High Commissioner for Human
rule of law) 383–404 Rights 368–369, 374–375
law and order see criminal law Open Society Institute 257, 263–265, 268–269
Law Society of England and Wales 274, 293, Overseas Development Institute 233
298
lawyers 1, 4, 10–12, 49, 84, 89, 90, 93, 110–111, Pakistan 4, 283–284, 353
126, 224, 227, 271–288, 312, 359–360, Paris Bar Association 273–274
361–362, 373, 423, 428, 453 Parliament 8, 453, 460, 461, 467
legal aid 9, 260, 262, 264, 266, 282, 291 Peru 259
legal education 289–303 Petition of Rights 142
Legal Services Act UK 292–293, 295 Poland 5, 81, 87, 111, 120, 125, 128–129, 237,
legal transplants 115, 228, 330, 486, 509–510, 242–243, 245–246, 248
523 police 54, 245, 255, 260–262, 265, 267–268,
Lehman Brothers 273 357, 370, 375, 412, 424, 427, 464–466, 468,
lex mercatoria 298, 310 479, 481, 487
Liberia 427, 482 Portugal 512, 517
Libya 372 power, political 6, 7, 12, 21–22, 25–26, 29–31,
33, 35–37, 39, 42, 43, 46, 57, 67, 69, 75–95,
Magna Carta 7, 80, 139–140, 141–142, 103, 115, 135, 138–141, 143, 147, 176, 179,
149–165, 167, 349, 456 195, 213, 229–231, 253, 276, 297, 354, 369,
Malaysia 490, 494 441, 480, 501
Maldives 365 predictability 8, 27, 28, 29, 49, 52, 77, 96–108,
Marbury v. Madison 146 213, 257, 285–286, 386
Marxism 42, 184, 193–200 principles (of the rule of law) see norms (of the
Mexico 316, 365, 479, 496 rule of law)
Microsoft 13 private law 62, 65, 252, 286, 298, 311–313
Millennium Development Goals 389, 422 property rights 12, 13, 39, 72, 142–143, 146,
Mozambique 419, 428, 486 191, 193–194, 197, 200, 272, 286, 312,
multinational corporations see corporations 340, 386–389, 395–396, 406–407, 410–412,
Myanmar 81 421–424, 427, 443–444, 478, 482
public interest litigation (India) 429–430
Namati 428
Narmada Valley 62 racism 9, 341, 350, 357
Nazi law 50, 96, 277–278, 284, 357–358, 385, rational actor model 396–403
461–463 rechtsstaat 34, 38, 44, 46, 77, 145, 147
neoliberalism 3, 46, 184, 297–298, 311, 434, Roman law 137, 154, 161, 187, 198
436, 439, 443–446 Romania 85, 125, 220, 240–241, 246
new constitutionalism 311–314 rule of law
new institutional economics 189–190 and anthropology 4
New York Convention on the Regulation and as common-sense 1–2
Enforcement of Foreign Arbitral Awards definition of 7–10, 24, 34, 37, 50–51, 58,
312–313 60–61, 75, 135, 212–215, 223–224, 242,
New Zealand 71 272, 347, 365–370, 384–390, 406–407,
Nigeria 365, 483 442, 476, 525
Nike 434 and feminism 333–344, 484
non-government organisations (NGOs) history of 7–8, 58, 77, 80, 135–148, 149–166,
257–270, 315, 319, 371, 474, 493 167–183
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and Islam 24, 30, 188, 345–356 Trade Related Investment Measures (TRIMS)
measuring 10–15, 23, 24, 45, 47, treaty 312
48–56, 353–354, 370–376, 392, Transatlantic Trade and Investment
407–409 Partnership (TTIP) 312, 318
non-Western approaches to 58–62, 66, 107, Trans-Pacific Partnership (TTP)
186, 402–403 312
and pluralism 16, 43, 57–74, 96, 106, Transparency International 11, 413
315–316, 485–486 Treaty on the European Union 236–237, 241,
in post-conflict context 117, 125–126, 244–246, 249–251, 256, 372
413, 442, 444, 471–489 Turkey 125, 353
as rhetoric 2–7, 14–15, 203, 443,
497–504 Ukraine 393, 427
(contrasted with) rule of men 7, 443 United Kingdom see Britain
socio-legal study of 61–62 United Nations 2, 15, 34–35, 39, 104, 113–114,
on television 3–4, 295 116, 203–216, 236, 248, 260, 310, 315, 360,
and terrorism 453–470 363–365, 367, 371–375, 377–378, 399, 435,
thick/thin distinction 9, 10, 11, 13, 22–33, 437, 443, 446, 455, 469, 471–472, 475, 477,
34–47, 50–51, 83–86, 100, 106, 110, 482, 510, 512–519, 525–529
135–136, 208, 298, 308–310, 333, 347, United Nations Commission on International
359–360, 377, 384, 462 Trade Law (UNCITRAL) 318
see also norms (of the rule of law) United Nations Conference on Trade
Rule of Law Index 10–15, 30, 103–106, and Development (UNCTAD)
376 318–320
rule of law promotion see technical assistance United Nations Declaration on the Rule of
Russia 81, 274, 438 Law 204–206, 248, 364–365, 367
Rwanda 419 United Nations Development Programme 34,
371, 378, 427, 428, 446, 517, 518
Saudi Arabia 353, 454–455 United Nations Security Council 114–115, 203,
Sharia law 5, 345, 348–349, 354 211–212, 215, 310, 363–364, 484
Sierra Leone 427 United Nations Sustainable Development
Singapore 31, 40, 45, 84, 228, 393, 419, 490, Goals 389–390
492, 494, 508 United States Agency for International
Single European Act (SEA) 236 Development (USAID) 477
socio-economic rights 38–39, 41, 46–47, 69, United States of America 6, 65, 71, 145,
101, 286–287 175–176, 189, 259–260, 273, 278, 284,
sociology of law 72 295–296, 325, 336, 365, 383, 387, 438, 465,
Somalia 427, 485 467, 493
South Africa 71, 81, 316, 317, 385, 393, 422, Universal Declaration of Human Rights 8, 45,
438, 446 289,360–361, 363, 372, 476
sovereignty 21–22, 24, 26, 31, 73, 137–138, 141, Uruguay 259
143–144, 147, 170, 198, 347 Uzbekistan 353
Soviet Union 184, 376–377, 473–474, 501,
523 Venezuela 317
Spain 120,126 Venice Commission 110–111, 120, 128, 130
Starbucks 434 Vienna Convention on the Law of Treaties
Sudan 81, 85 113
Sweden 274, 422 Vienna Declaration and Programme of Action
Syria 90, 427 363
Vietnam 40, 523
Taiwan 393, 419, 490, 508
Tanzania 422 Washington Consensus 87, 292
technical assistance (rule of law related) Weimar Republic 38
60, 84–85, 91, 184, 189, 220–221, welfare 38, 46, 117, 291, 402
226, 259–260, 376–378, 415, 486–488, World Bank 11–12, 34, 53–54, 55, 87, 190–191,
522 217–234, 259, 285, 291–292, 298, 375, 377,
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Subject index 535
378, 392, 394–395, 408, 419–420, 425, 516, World Trade Organisation 248, 294, 310,
517 493
World Development Report(s) 217–218,
229–234 Yemen 220
World Justice Project (WJP) 11–15, 30, 54, 55,
103–106, 375–376 Zimbabwe 465–466
see also Rule of Law Index
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Name index
Contributors only appear in the Name Index when they are referred to relating to work other than
their chapter in this Handbook
Abel, Rachel 282 Bradley, Joseph P. 336

Acemoglu, Daron 411 Bradwell, Myra 336
Adams, John 243 Brierly, James L. 358
Aidt, Toke 414 Brown, Graham 529
Akerlof, George 97, 403 Brunneé, Jutta 120
Albright, Madeleine 389, 422, 426 Bryce, James 155
Aldridge, Anthony 168 Bueger, Christian 227
Allen, Trevor 168–169, 182–183 Burger, Julian 68
Alsop, Ruth 432 Butterfield, Herbert 154
Alston, Lee J. 401
Alves, Victor 525 Caldwell, Bruce 30
Ambler, Olivia 6 Cameron, David 453
Amirapu, Alberto 399 Campbell, Ray 300
Andrews, Matt 225 Campos, Paul 300
Annan, Kofi 207, 215, 437 Carré de Malberg, Raymond 44
Aponte Miranda, Lillian 72 Carothers, Thomas 84, 444
Aquinas, Thomas 138, 357 Cassesse, Antonio 435
Aristotle 79, 91, 136–137, 289, 308 Cavallaro, James 263, 269
Arthurs, Chris 198 Chambers, Robert 225
Augustine, Saint 358 Charles I 80, 152, 173
Austin, John 309 Christensen, Clayton 300, 302
Cheesman, Nick 36, 47
Ban Ki-moon 215 Chen, Siyan 413
Barro, Robert 412 Chesterman, Simon 309, 310, 443
Barros, Robert 501 Chopra, Jarat 521
Al-Bashir, Omar 438 Cicero 137
Baxi, Uprendra 71–72 Cini, Michelle 252
Bedner, Adriaan 100 Clague, Christopher 410
Belton, Rachel 406 Clapham, Christopher 474
Benavides, Oscar 31 Clarke, Kamari 451
von Benda-Beckman, Franz 106 Clauss, Michael 493
Bensouda, Fatou 434–436, 438–441, 446, Coase, Ronald 189
449–450 Cohen, Amy 400
Berkowitz, Daniel 415 Coke, Edward 141–142, 154, 155, 159–161, 167
Berman, Harold 8 Collier, Paul 413
Bingham, Lord Tom 1, 7–10, 16, 34, 51, 99, Comaroff, John and Jean 4
213, 289, 295, 307–308, 309, 366, 453, 461, Constant, Benjamin 30
468 Cooke, Bill 225
Birnbaum, Norman 199 Cooter, Robert 389, 398
Blackburn, Mr Justice 174 Coppedge, Michael 24
Blackstone, William 142, 152 Couso, Javier 66
Blair, Tony 456 Cox, Homersham 149, 151, 164, 170, 173, 174,
Bodin, Jean 141 178
Boon, Andrew 293 Craiutu, Aurelian 79
Boutros-Ghali, Boutros 472–473 Crawford, James 276
536
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Name index 537
Creneshaw, Kimberlé 342 Garoupa, Nuno 394

Crohn, Madeleine 264 Gates, Bill 301
Cui Tiankai 494 George III 153
Gerring, John 49
Dahl, Robert A. 26–27, 33, 229 Gill, Stephen 311
Dam, Kenneth 394, 415 Gilligan, Carol 337
Daniels, Ronald J., 223 Ginsburg, Tom 55, 495–496, 503–504
Degousse, Renaud 251 Glaeser, Edward L. 393
Desai, Deval 91 Goldschmidt, Chana 399
Dewey, John 83 Golub, Stephen 224, 225, 421
Dicey, A.V. 8, 34, 39, 44, 61, 149–166, 167–183, Gorbachev, Mikhail 501
222, 224, 308, 309, 358, 384, 400, 453, 455, Gouda, Moamen 353
460, 463 Grenfell, Laura 522, 525
Djankov, Simeon 415 Gupta, Akhil 66
Domingo, Pilar 431–432 Gusmào, Xanana 520, 525
Dowdle, Michael 500
Drobak, John N. 404 Habermas, Jűrgen 37–38, 48, 222, 254, 333,
Duffield, Mark 474 338–339
Duguit, Léon 44 Hadfield, Gillian K. 88, 401
Durham, Helen 482 Haggard, Stephen 88, 407
Duterte, Rodrigo 438 Haldar, Antara 399
Duttam Jayasri 414 Hale, Kip 447
Dworkin, Ronald 38, 51, 165 Hallam, Henry 152
Halliday, Terence 283–284, 287
Edward the Confessor 161–162 Hardin, Garrett 388
Ehrenreich, Rosa 400 Hart, H.L.A. 50, 384, 386
Ehrlich, Eugen 91 van Harten, Gus 325–326
Ellickson, Robert 397 Hauriou, Maurice 44
Ellul, Jacques 301 Hawking, Stephen 301
Endicott, Timothy 102 Hayek, Friedrich 22, 28, 30, 39, 43–44, 51, 100,
Engels, Friedrich 192–194 224, 239, 289, 386, 441–442, 448
Hearn, William Edward 149, 151, 164, 170,
Farrall, Jeremy 213–214 174, 176, 178–179
Feld, Lars P. 416 Heath, Edward 464
Ferguson, James 233 Heinz, John 293
Fergusson, Naill, 3 Held, Virginia 337
Ferris, James 149, 151, 164, 170, 172–173, 176, Heller, Thomas C. 89
178 Herman, Chris 193
Filmer, Robert 80 Heupel, Monika 268
Fine, Robert 196 Heywood, Neil 6
Finnis, John 28 Hillman, Arye 350
Forst, Rainer 120 Hobbes, Thomas 80, 82, 143
Foucault, Michel 229–230 Holmes, Stephen 83
Franck, Thomas 254, 310 Horn, Michael 299–300
Fraser, Nancy 341 Horrowitz, Morton J. 445
Freeman, Edward 152 Humphreys, Stephen 221–222, 228
French, Robert 299 Huneeus, Alexandra 66
Fukuyama, Francis 347, 352 Hussain, Nasser 2
Fuller, Lon 11, 28, 50, 90, 346–349, 353, 385,
407 James I 154, 173
Jefferson, Thomas 146
Galanter, Marc 91, 189 Jensen, Erik G. 89
Gallie, W.B. 21, 25, 307 Jessup, Philip 315
Galtung, Johan 472–473 King John 158–159, 161, 167
Gardiner, Gerald 464 John of Salisbury 138
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Johnson, Simon 410, 411 López Medina, Diego 67, 70

Jourová, Věra 243 Lopez-de-Silanes, Florencio 393
Judge, Igor 168 Loughlin, Martin 325–326
Lukes, Steven 229–230
Kaczyński, Jarosław 242
Kahler, Miles 474 McAuliffe, Padraig 442, 445
Kahn-Freud, Otto 509, 523 McBarnet, Doreen 273
Kant, Immanuel 144–146, 346 McCloskey, Diedre 401
Karpik, Lucien 283–285, 287 McCorquodale, Robert 214, 216
Keck, Margaret 262, 269 MacKinnon, Catherine 334, 336
Keefer, Phillip 411 McMillan, John 410
Kelemen, Daniel 254–255 Macron, Emmanuel 248
Kelsen, Hans 309 Madison, James 146
Kennedy, Duncan 335 Maguire, Amy 484
Kenny, Charles 401–402 Maharg, Paul 295
Kenyatta, Unhuru 438 Maitland, F.W. 152
Keynes, John Maynard 97 Malinowski, Bronsislaw 91
Khan, Abdullah Freed 4 Manji, Ambreena 228
Khan, Paul 96 Marks, Susan 331
Kim, Jim Yong 233 Marmor, Andrei, 102
King, Martin Luther 357–358, 366, 379 Marshall, John 146
Kingsbury, Benedict 329 Marshall, Thomas H. 117
Kingsbury, Damien 520 Maru, Vivek 219–220
Kittay, Eva 337 Marx, Karl 184–185, 192–197, 199–200
Klein, Naomi 434–435, 447–448 Mattei, Ugo 39
Kleinfeld, Rachel 85, 89, 223 Mauro, Paolo 413
Knack, Stephen 411 May, Christopher 199, 298, 311, 359–360,
Knox, Robert 193 378–379, 403
Koh, Harold 254 Mazucca, Sebastián L. 24–25
Kony, Joseph 438 Méndez, Fabio 414
Kothari, Uma 225 Menzies, Nicholas 226
Kratochwil, Friedrich 224 Merry, Sally Engle 48, 65
Krever, Tor 218–219 Messick, Richard 412
Krisch, Nico 106 Miéville, China 197
Krygier, Martin 31, 333, 442, 447, 475 Miles, Kate 331
Kuran, Timur 349, 352 Minow, Martha 335, 337, 344
Kurtz, Marcus 408 Møller, Jørgen 54, 55
Moller Okin, Susan 336
Langdell, Christopher Columbus 296–297 Montesquieu, Charles de Secondat, Baron de.
Langer, Arnim 529 30, 79, 83, 91, 143
Langton, Stephen 161 Moore, Sally Falke 91
Laumann, Edward 293 Moreno-Ocampo, Luis 450
Lawandowski, Ricardo 267, 269 Morsi, Mohamed 355
Lawton, James 5 Mubarak, Hosni 499
Leben, Charles 253 Mullen, Jethro 465
Levin, Daniel 480 Műller, Harald 122
Levy, Frank 301 Musk, Elon 301
Levy, Madeleine 195
Licht, Amir 399 Namoradze, Zaza 264
Lin, Yan 503–504 Niebuhr, Reinhold 83
Lloyd, Tony 457 Nixon, Richard 3
Loayza, Noman V. 413 Neukom, William 13
Locke, John 80, 142, 145, 387–388 North, Douglass C. 189–190, 388, 404
De Lolme, Jean Louis 149, 164, 170, Nouwen, Sarah 440
172–174 Nussbaum, Martha 337, 339–340
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Name index 539
Oakeshott, Michael 222 Rostow, Walt W. 188

Obama, Barack 435, 453 Rothstein, Bo 55
O’Donnell, Guillermo 21 Rushdie, Salman 352
Olivier de Sardan, Jean-Pierre 233
O’Neill, Tam 431–432 Sage, Caroline 226
Orbán, Viktor 240–241 Sands, Phillipe 4
Ostrom, Elinor 397–398 Santiso, Carlos 89
Sartori, Giovanni 23, 31
Palacio, Ana 425 da Sassoferrato, Bartolo 138
Palombella, Gianluigi 7, 8 Schaefer, Hans-Bernd 389
Pargendler, Mariana 394 Schleifer, Andrei 393
Parker, Hubert 464 Schmitt, Carl 38, 46
Parsons, Talcott 185, 187–188 Schönteich, Martin 264
Pashukanis, Evgeny 197–198 Schumpeter, Joseph A. 22, 26–27, 30,
Peerenboom, Randall 46 33
Perreira dos Santos, Rui 525 Schwartz, Shalom 399
Petrażycki, Leon 91 Scott, James C. 358–359
Picciotto, Sol 195 Scott, Shirley 6
Pinochet, Augusto 501 Sedley, Stephen 168–169, 182
Pistone, Michele 299–300 Selznick, Philip 45, 93–94
Pistor, Katherina 399, 415 Sen, Amartya 102, 390
Plato 136–137, 140 Sena, Vania 414
Pollock, Jackson 323 Sengupta, Arjun 426
Polybius 137 Sepúlveda, Facundo 414
del Ponte, Carla 446 Shambaugh, David 501–502
Posner, Eric 398 Sharma, Aradhana 66
Posner, Richard 386 Shiller, Robert 97, 403
Postema, Gerald 9 Shklar, Judith 444
La Potra, Rafael 393, 415, 41 Shrank, Andrew 408
Potrafke, Niklas 353 Sieder, Rachel 66
Pritchett, Lant 89, 225 Sieyés, Emmanuel Joseph 143
Przeworski, Adam 27 Sikkink, Kathryn 262, 269
Silbey, Susan 3
Al-Qadhafi, Muammar 372 Simion, Kristina 219, 222, 227
Qatada, Abu 466 Simpser, Alberto 495–496
Qutb, Sayyid 348, 352 Skanning, Svend-Erik 53, 54, 55
Smart, Carol 343
Rajagopal, Balakrishnan 62 Smith, Thomas 141
Rajah, Jothie 228 Soltan, K. 94
Ramos-Horta Jose 513, 525 Solzhenitsyn, Alexandr 371
Raz, Joseph 11, 28, 29, 42–45, 50, 85, 90, 100, Soros, George 263
308, 385, 462 de Soto, Hernando 4, 191, 388–389, 395,
Reding, Viviane 240 420–423, 425–426
Reid, John 466 de Sousa Santos, Boaventura 67,
Reinado, Alfredo 525 315
Remus, Dana 301 Starr, Martha 4
Reynal-Querol, Marta 413 Staton, Jeffrey K. 409
Richard, Jean-Francois 415 Stephens, Matthew 225
Richmond, Oliver 474 Steward, Francis 529
Rijpkema, Peter 36 Stewart, Potter 10
Rios-Figueroa, Julio 409 Stubbs, William 149, 154
Rodrigues, Roque 519 Subramanian, Arvind 392
Rodríguez-Garavito, César 67 Suganami, Hidemi 310
Rodrik, Dani 392 Sun Zhigang 505–506
Rosa, Ivo 525 Susskind, Richard 300
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Tamanaha, Brian 43–45, 300, 384, 441, 442 Voigt, Stafan 416
Taylor, Charles 338–339 Voltaire 400
Taylor, Veronica 219, 222, 227
Teng Biao 505–506 Waldron, Jeremy 77, 89–90, 101, 279–280, 289,
Thomas, Chantel 188 307
Thompson, Edward P. 31, 34, 41–43, 64, 196, Walters, Mark 169, 176
309, 321 Weber, Max 72, 85, 184–192, 194, 198–200,
Tigar, Michael 195 224, 285, 289, 386, 395, 399–400
Timmermans, Frans 247–248 Weingast, Barry R. 88
de Tocqueville, Alexis 400 Werner, Wouter 440
Toope, Stephen J. 120 Whelan, Christopher 273
Trebbi, Francesco 392 Whyte, Avis 293
Trebilcock, Michael J. 223, 387, 395 Williams, Rowan 5
Trubek, David 186, 189, 219 Wilmshurst, Elizabeth 279
Trump, Donald 3, 435 Wittgenstein, Ludwig 440
Tully, James 112, 116, 120 Wolf, Dieter 254
Twinning, William 61 Wolfensohn, James 191
Wolgast, Mary 338
Unger, Roberto Mangabeira 96, 106 Woodruff, Christopher 410
Woolcock, Michael 91, 225, 226, 234
Veel, Paul-Erik 395
in’t Veld, Sophie 255 Xi Jinping 454, 491–492, 508
Verhofstadt, Guy 129 Xu Zhiyong 505–506
Versteeg, Mila 55
Queen Victoria 151, 153 Yew, Lee Kuan 45
Vicuña, Francisco Orrego 312 Young, Iris Marion 341–342
Viera de Mello, Sergio 510, 514, 515, 520, Yu Jiang 505–506
525
Vignon, Jérôme 250 Zhou Qiang 492
Vinogradoff, Paul 155 Zolo, Danilo 184–185
Vishny, Robert W. 393 Zurn, Michael 254
M4581 - MAY_9781786432438_t.indd 540 01/08/2018 14:48

Christopher May (Editor), Adam Winchester (Editor) - Handbook On The Rule of Law-Edward Elgar (2018)

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HANDBOOK ON THE RULE OF LAW

M4581 - MAY_9781786432438_t.indd 1 01/08/2018 14:47

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Cheltenham, UK • Northampton, MA, USA

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Edward Elgar Publishing, Inc.

A catalogue record for this book

Library of Congress Control Number: 2018935747

This book is available electronically in the

ISBN 978 1 78643 243 8 (cased)

Typeset by Servis Filmsetting Ltd, Stockport, Cheshire

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Introduction to the Handbook on the Rule of Law1

PART I DEFINING THE RULE OF LAW

1 The advantages of a thin view 21

PART II THE HISTORY OF THE RULE OF LAW

8 The rule of law: An outline of its historical foundations 135

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PART III INSTITUTIONS OF THE RULE OF LAW

PART IV CONTEXTUALISING THE RULE OF LAW

18 The rule of law, new constitutionalism, and transnational legality 307

PART V APPLYING THE RULE OF LAW

23 The rule of law from a law and economics perspective  383

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* All websites live at 23 November 2017.

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THE RHETORIC OF THE RULE OF LAW

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­nowledge, representations and power’, in D.F. Ruccio (ed.), Economic Representations:

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AN INCLUSIVE DEFINITION OF THE RULE OF LAW

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THE RULE OF LAW, MEASUREMENT, AND THE RULE OF LAW

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● Constraints on government power

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● Order and security

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Whether it is the indicators selected or ignored, the ‘inherent limitations’ of canvass-

A (VERY BRIEF) GUIDE TO THE FOLLOWING SECTIONS/

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DEFINING THE RULE OF LAW

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Concept Rule of Law

Attributes Formal Checks and Sovereignty Negative Positive

Note: Adapted from Møller and Skaaning, 2014, 21.

Figure 1.1 Attributes of the rule of law6

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Introduction to the Handbook on the Rule of Law1

1 The advantages of a thin view 21

8 The rule of law: An outline of its historical foundations 135

18 The rule of law, new constitutionalism, and transnational legality 307

23 The rule of law from a law and economics perspective 383

nowledge, representations and power’, in D.F. Ruccio (ed.), Economic Representations: