An Elementary Approach to the Rule of Law

Hague Journal on the Rule of Law

Volumn 2, Issue 1, 2010, Pages 48-74

  Bedner, Adriaan ^a  

^a LEIDEN UNIVERSITY   (Netherlands)

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EID: 84894334667     PISSN: 18764045     EISSN: 18764053     Source Type: Journal    
DOI: 10.1017/S1876404510100037     Document Type: Article

References (70)

1. 1 See for instance R. Peerenboom, ‘Varieties of Rule of Law: An Introduction and Provisional Conclusion, in R. Peerenboom (ed.), Asian Discourses of Rule of Law: Theories and Implementation of Law in Twelve Asian Countries, France and the U.S., 2004, p. 1
2. B. Tamanaha, On the Rule of Law: History, Politics, Theory, 2004, pp. 3-4
3. or R. Kleinfeld, ‘Competing Definitions of the Rule of Law’, in Th. Carothers, Promoting the Rule of Law Abroad: In Search of Knowledge, 2006.
4. 2 R. Fallon, ‘The Rule of Law’ as a Concept in Constitutional Discourse’, 97 Columbia Law Review 1 (2007), p. 6, quoted in J. Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)’, 21 Law and Philosophy (2001). Waldron takes the issue even further, claiming that ‘we are also unsure why we value [the rule of law]’. However, this argument does not affect my approach as I ‘neutralise’ the normativity of the rule of law by opting for the two functions’ approach set out below.
5. 3 For the non-academic debate this is even worse. For an excellent of this point, see Waldron, n. 2 above.
6. 4 Cf., Peerenboom, ‘Varieties of Rule of Law’, p. 2.
7. 5 Th. Carothers, ‘The Problem of Knowledge’, in Carothers, Promoting the Rule of Law Abroad: In Search of Knowledge, p. 21.
8. 6 See for instance R. Kranenburg, Het Nederlands staatsrecht, 1925.
9. 7 One can obviously list many more functions or objectives served by the rule of law, but these are all somehow related to these two core ones. See Peerenboom, ‘Varieties of Rule of Law’, p. 3 and the discussion of Kleinfeld in this essay. In this manner the following enquiry is not a mere ‘anatomical’ approach of the rule of law, as criticized by Martin Krygier, ‘The rule of Law: Legality, Teleology, Sociology’, in G. Palombella and N. Walker, Re-locating the Rule of Law, 2008, pp. 45-69, but comes closer to the teleological and sociological approach promoted by this author. See also the conclusion to this article.
10. 8 Tamanaha, On the Rule of Law, pp. 7-9 and 18-19.
11. 9 Kleinfeld, ‘Competing Definitions of the Rule of Law’, p. 40.
12. 10 This notion is more common to rule of law than to rechtsstaat definitions. For an overview of the historical distinction between the two see N.W. Barber, ‘The Rechtsstaat and the Rule of Law’, University of Toronto Law Review (2003), pp. 443-454, quoted in HiiL, ‘Rule of Law Inventory Report’, Academic Part, Discussion Paper for the High Level expert Meeting on the Rule of Law of 20th April 2007, p. 7.
13. 11 E.g., J. Ohnesorge who warns the ‘jurists’ for losing their cherished rule of law concept to the ‘economists’, who tend to focus on property rights only J. Ohnesorge, ‘The Rule of Law, Economic Development and Developmental States in Asia’, in C. Antons, Law and Development in East and Southeast Asia, 2003, pp. 92-93.
14. 12 The UN-Convention on Eliminating Discrimination Against Women (adopted in 1979).
15. 13 S. Holmes, Passions and Constraint: On the Theory of Liberal Democracy, 1995, in particular pp. 100-133. Holmes sets out his argument in an alternative reading of Jean Bodin. The core of the matter is that while normatively sovereign power is unfettered, empirically it can be effective only if it is felt as legitimate power by those subjected to it. The most effective means to achieve this is by some form of formal-rational organization of its exercise.
16. 14 In fact is was already present in the earliest projects within the Law and Development movement. See J.A. Gardner, Legal Imperialism: American Lawyers and Foreign Aid in Latin America, 1980.
17. See also G. O’Donnell, ‘Horizontal Accountability in New Democracies’, 9 Journal of Democracy 3 (1998), at p. 2.
18. 15 E.P. Thompson, Whigs and Hunters: The Origins of the Black Act, quoted in Tamanaha, On the Rule of Law, p. 137.
19. 16 Cf., Peerenboom, ‘Varieties of Rule of Law’, p. 11.
20. 17 Some scholars prefer to prevent such ‘internal’ comparison by leaving out some instruments altogether. For instance, they prefer not to include democracy or human rights within their definition of the rule of law, which allows them to draw conclusions concerning the rule of law without having to address the ins and outs of democracy as well. An example of a forceful argument along these lines is HiiL 2007. Not surprisingly, this approach was criticized by some of the participants at the meeting where the report was presented, who favoured a more inclusive, ‘aspiring’ definition.
21. 18 Cf., Kleinfeld, ‘Competing Definitions of the Rule of Law’, pp. 32-34 on this point. She argues that at the basis of the alternative definition of donor agencies involved in rule of law projects is that they offer a practical focus for them. Although that may be true to some extent, I think Ohnesorge is right in pointing out that underlying this focus is an agenda aimed at economic development–thus valuing the second rule of law function over the first one. See for a critical analysis on this point J. Faundez, ‘The Rule of Law Enterprise–Towards a Dialogue between Practitioners and Academics’, 2005, CSGR Working Paper No. 164/05.
22. 19 Tamanaha, On the Rule of Law, p. 3; Peerenboom, ‘Varieties of Rule of Law’, p. 1.
23. 20 E.g., B. Hager, ‘The Rule of Law: A Lexicon of Policy Makers’, 2000.
24. 21 On this matter, see Tamanaha, On the Rule of Law, in particular p. 91.
25. 22 J. Raz, ‘The Rule of Law and its Virtue’, in Raz, The Authority of Law: Essays on Law and Morality, 1979, pp. 210-232.
26. 23 Carothers, Promoting the Rule of Law Abroad, p. 4.
27. 24 Peerenboom, ‘Varieties of Rule of Law’, pp. 1-13, Tamanaha, On the Rule of Law, p. 93.
28. 25 Kleinfeld, ‘Competing Definitions of Rule of Law’, pp. 34-46.
29. 26 The review article by Marianne Termorshuizen. M. Termorshuizen,‘The Concept of Rule of Law’, Jentera: Jurnal Hukum, Vol. 2 (3), 2004, pp. 77-119 has been helpful as a starting point for this purpose.
30. 27 Tamanaha, On the Rule of Law, pp. 8-9.
31. 28 Raz, ‘The Rule of Law and its Virtue’, pp. 210-232.
32. 29 See for instance D. Ivison, ‘Decolonizing the Rule of Law: Mabo’s Case and Postcolonial Constitutionalism’, Oxford Journal of Legal Studies, 17 (2007) p. 262.
33. 30 Tamanaha, On the Rule of Law, p. 92.
34. 31 For a more nuanced account, see R. Peerenboom, ‘Competing Conceptions of Rule of Law in China’, in Peerenboom, Asian Discourses of Rule of Law: Theories and Implementation of Law in Twelve Asian Countries, France and the U.S., pp. 113-145.
35. 32 K. Jayasurya, ‘The Exception Becomes the Norm: Law and Regimes of exception in East Asia’, 2 Asian-Pacific Law & Policy Journal 1 (2001), pp. 108-124.
36. 33 See for instance A. Huxley, ‘Positivists and Buddhists: The Rise and Fall of Anglo-Burmese Ecclesiastical Law’, 26 Law & Social Inquiry 1 (2001), pp. 113-142 on Burmese law, or J. Ball, Indonesian Legal History 1602–1848, on Javanese law. As rightly pointed out by an anonymous reviewer, this point reminds one of the work of Nonet and Selznick on types of law (or rather legal systems), viz. repressive, autonomous and responsive law Law and Society in Transition: Toward Responsive Law, 1978. The type of law referred to here is repressive law, but one should note that, as Nonet and Selznick argue, even repressive law is defined in terms of legitimation rather than sheer coercion. The next element discussed means a move towards autonomous law, while the substantive law is associated with the rights-approach discussed under the next category.
37. 34 M. Shapiro, Courts: A Comparative and Political Analysis, 1981. This is very clear from the history of colonial expansion; from the most limited form of British ‘repugnancy clause’ to the myriad categorization of legal orders in the Netherlands Indies. See for examples, W.J. Mommsen and J.A. de Moor, European Expansion and Law: The Encounter of European and Indigenous Law in 19th- and 20th- Century Africa and Asia, 1992.
38. 35 C. Schmitt, Verfassungslehre, 1928.
39. 36 See, e.g., N. Wimmer, Dynamische Verwaltungslehre: Ein Handbuch der Verwaltungsreform, 2004, p. 198 et seq.
40. 37 An example is D. Kaufmann, A. Kraay, and P. Zoidó-Lobaton, ‘Agregating Governance Indicator’, World Bank, http://www-wds.worldbank.org/external/default/WDSContentServer/IW3P/IB/1999/10/23/000094946_99101105050593/additional/115515322_20041117135531.pdf.
41. 38 The most sophisticated rule of law indicators developed so far do take good account of this matter. See M.A. Agrast, et al., ‘The World Justice Project Rule of Law Index: Measuring the Rule of Law around the World’, see www.worldjustice.org.
42. 39 Japan is probably the best-known example.
43. 40 However, the process of transition will almost always be protracted, painful and problematic. Imposing ‘alien’ rules on a given society has always been highly problematic, as has become more than clear from studies on colonial societies, but also from those about France in the 18th and 19th centuries. On the other hand, codifying local rules is also a delicate activity and will inevitably spur disputes and reframe the power relations within that society. Unfortunately, the road in between of providing non-binding ‘restatements’ of customary law, as attempted by Van Vollenhoven in the Netherlands Indies has proven very difficult too with regard to its application.
44. 41 On the importance of constitutions in this respect, see G. Sartori, Comparative Constitutional Engineering: An Inquiry into Structures, Incentives and Outcomes, 1997.
45. 42 Thompson, Whigs and Hunters: The Origins of the Black Act, at p. 262.
46. 43 B. Seidman and A. Seidman, State and Law in the Development Process: Problem-solving and Institutional Change in the Third World, 1994.
47. 44 See, for instance, on Indonesia G. Churchill, The Development of Legal Information Systems in Indonesia, 1992, Leiden: Van Vollenhoven Institute for Law and Administration in Non-Western Countries, Research Report no. 1.
48. 45 Tamanaha, On the Rule of Law, pp. 99-101.
49. 46 Cf., L.J. Diamond, Developing Democracy: Toward Consolidation, 1999, at p. 3.
50. 47 This, one could argue, caused the split between ‘revisionist’ social-democrats and radical socialists preaching the revolution.
51. 48 Diamond, Developing Democracy: Toward Consolidation, at p. 5.
52. 49 See, for instance, G. O’Donnell, ‘Why the Rule of Law Matters’, 15 Journal of Democracy 4 (2004), pp. 32-46.
53. 50 Peerenboom, ‘Varieties of Rule of Law’, pp. 5-6.
54. 51 Cf., Nonet and Selznick’s idea of ‘responsive’ law (above).
55. 52 See, e.g., M. Goodale, ‘Introduction: Locating Rights, Envisioning Law Between the Global and the Local’, in M. Goodale and S.E. Merry, The Practice of Human Rights: Tracking Law Between the Global and the Local, 2008, pp. 1-38 and S.E. Merry, Human Rights and Violence against Women, 2005.
56. 53 Ohnesorge, ‘The Rule of Law, Economic Development and Developmental States in Asia’.
57. 54 Faundez, ‘The Rule of Law Enterprise–Towards a Dialogue between Practitioners and Academics’, pp. 5-8.
58. 55 As suggested by one anonymous reviewer, it would make sense to actually develop a subcategorization of those human rights which are particularly connected with the rule of law.
59. 56 Tamanaha, On the Rule of Law, p. 113.
60. 57 E.g., A. Kuper, ‘The Return of the Native’, 44 Current Anthropology 3 (2004), pp. 389-402.
61. Still there are many references to group rights as part of the rule of law, most of which see it as a natural extension of the concept. See, for instance, I. Brownlie, ‘Rights of Peoples in Modern International Law’, Bulletin of the Australian Society of Legal Philosophy, Special Issue: The Rights of Peoples, 1985, at pp. 105-106.
62. 58 The most prominent representant at present obviously being Dworkin.
63. 59 D. Hay, ‘Property, Authority and the Criminal Law’, in P. Beirne, and R. Quinney, Marxism and Law, 1982, pp. 103-129.
64. 60 Exceptions are C.M. Larkins, ‘Judicial Independence and Democratization: A Theoretical and Conceptual Analysis’, 44 The American Journal of Comparative Law (1996) and P.H. Russell and D.M. O’Brien, Judicial Independence in the Age of Democracy: Critical Perspectives from around the World, 2001.
65. 61 Probably the champion of such writing, both of courts and alternative dispute resolution is Mark Galanter. Important examples of his work on this issue are M. Galanter, ‘Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change’, 9 Law & Society Review (1974), pp. 95-160 about courts, M. Galanter & J.K. Krishnan, ‘“Bread for the Poor”: Access to Justice and the Rights of the Needy in India’, 55 Hastings Law Journal (2004), pp. 789-834 about ADR in India.
66. 62 See for an overview of the access to justice literature, R. Sandefur, ‘Access to Civil Justice and Race, Class and Gender Inequality’, 34 Annual Review of Sociology (2008), pp. 339-358.
67. 63 For a list see http://www.nhri.net/nationaldatalist.asp, accessed on 21 April 2009.
68. 64 This includes election committees, anti-monopoly institutions, bodies overseeing fair trade practices, commissions supervising the legality of operations of intelligence agencies, etc.
69. 65 Krygier, ‘The rule of Law: Legality, Teleology, Sociology’, at p. 60.
70. 66 See Krygier, ‘The rule of Law: Legality, Teleology, Sociology’.