A theory of rule of law (RL).

• Author: Lane, Jan-Erik
• Position: POLSCI FOCUS - Report

Introduction

It is often stated that the process of globalization promotes the equalisation of civilization. Thus, economic differences shrink, investments spread, and the internet highway connects more and more. Financial markets are open consecutively; global travelling is skyrocketing year after year, etc. Are there any basic differences between the civilisations of today? Hardly economically, besides the poverty of Sub-Saharan Africa, but politically: yes.

What is most dear to ordinary people is to live their lives under a rule of law regime where they are protected concerning life, liberty and property. But less than half the population of the world is enjoying the benefits of rule of law. Why is that?

I will argue in this paper that culture has something to do with the enforcement of the rule of law (RL). Moreover, in my view, rule of law trumps democracy, which is why it is the greatest idea in Western political history or historical thought.

1. RULE OF LAW: Meaning and measurement

   The study of rule of law regimes has been much advanced in the large Government Project by the World Bank, starting in 1999 and delivering each year a series of data covering about 210 countries.

   The concept of good governance has no standard definition in the dictionaries. Instead, I will rely upon the approach of the World Bank to governance in its major project. The WB states:

   "Governance consists of the traditions and institutions by which authority in a country is exercised. This includes the process by which governments are selected, monitored and replaced; the capacity of the government to effectively formulate and implement sound policies; and the respect of citizens and the state for the institutions that govern economic and social interactions among them." (http://info.worldbank.org/governance/wgi/index.asp)

   The WB Governance project, mapping good or bad governance around the globe during the last decade, identifies six dimensions in the concept introduced in the quotation above. I will focus exclusively upon rule of law RL.

   A political regime that runs according to rule of law would satisfy a few conditions that constrain the exercise of political power. Rule of law entails that power is exercised according to the following precepts concerning due legal process and judicial accountability:

   --Legality: nullum crimen sine lege;

   --Constitutionality: lex superior;

   --Rights and duties: negative human rights; habeas corpus;

   --Judicial independence: complaint, appeal, compensation.

   A government adhering to these precepts is likely to be more successful in enhancing socio-economic development than a government that fails to respect these principles. Thus, economic activity will be stimulated by legal predictability, the protection of property, and the autonomy of judges when testing cases for assumed violations of legality or constitutionality (Cooter and Ulien, 2010).

   The link between good governance satisfying rule of law precepts (1)-(4) above and socio-economic development is the integrity of contracts, i.e. the ease with which the honouring of agreements can be accomplished, from the making of a contract to its enforcement in court. When economic agents can go about their business knowing what they can contract about on the basis of certain and reasonable expectations, then the workings of the invisible hand is in place.

   The rule of law regime offers constraints upon political power, whether the power of political leaders or that of bureaucrats. It counteracts a number of vices that political power often succumbs to, including: (a) Arbitrariness; (b) Corruption and embezzlement; (c) Nationalisation of property; (d) False accusations and unreasonable search and seizure; (e) Detention without accusation; (f) Politicised court rulings. Thus, a country which honours rule of law upholds rules that restrain politicians and bureaucrats in an effort to promote the outcomes (a)--(f), which are beneficial for both economic life and political liberty.

   Where the rules of rule of law are observed, one would not always find democracy. In general it holds that democracy implies rule of law, but the opposite may not hold. Thus, the rule of law set of rules anticipated the democratic regime from a historical perspective, in both the UK and in Continental Europe. And on the contemporary scene, one finds countries with considerable amount of rule of law, although they do not practise competitive democracy with free and fair elections that may be contested by any political party whatsoever. One may map the spread of rule of law by employing a set of indicators on the respect for the rules (1)-(4).

   In the World Bank Governance project, one encounters the following definition of "rule of law":

   Rule of Law (RL) = "capturing 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" (Kaufmann, Kraay and Mastruzzi, 2010: 4).

   RL is explicitly separated from voice and accountability, which is defined as follows in the WB project:

   Voice and Accountability (VA) = "capturing perceptions of the extent to which a country's citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and a free media" (Kaufmann, Kraay and Mastruzzi, 2010: 4).

   The WB Governance project suggests four additional dimensions of good governance (political stability, government effectiveness, regulatory quality and the control of corruption), but we will only enquire into RL here. The WB Governance project employs a host of indicators in order to measure the occurrence of RL around the globe, which results in a scale from -2 to + 2.

2. RULE OF LAW AND DEMOCRACY

   The distinction in the WB governance project helps us illuminating the complexity of the notion of constitutional democracy. Present day democracies combine these two aspects: rule of law as well as voice and accountability, but they are not logically linked. A country may have a rule of law regime but not accept the principle of one person one vote. We find many such regimes in history. And a country may practice plebiscitary democracy or populist democracy without a rule of law framework, as with the Jacobins and their theoretician: Rousseau. The attractiveness of constitutional democracy is that it offers a bulwark against totalitarian democracy, where what "the people" wants is the Law--see Talmon's Origins of Totalitarian Democracy (1962).

   Populist democracy may take two forms, either the constant referendum model as practiced in only one country in the world, i.e. Switzerland, or "Fuhrer democracy" as exemplified by Robespierre, Napoleon, the Bolsheviks and Hitler. The origins of the rule of law regime date back to the Ancient Times, where the First Roman Republic adhered to institutionalised power, or legal rational "Herrschaft" with Max Weber (1978). The introduction of emperorship destroyed the Roman rule of law and its key interpreter, Cicero, was slayed by Caesar's camp. But the idea of rule of law was invigorated in the feudal society during the high medieval period, resulting in the making of several constitutions or constitutional documents. The emergence of Common Law gave constitutionalism a definitive legal structure.

   The first major theoretician of constitutionalism in modern times was the Calvinist Theodore Beze, who looked for rule of law safeguards against the Prince, especially for religious minorities. As a matter of fact, Beze created the notion of a constitution as a set of norm limitations upon executive power, or princely prerogatives. The heralded meaning of a "constitution" was the imperial command of the Emperor in Roman Law, which never developed rule of law conceptions.

   The second great theoretician of rule of law was John Locke, who gave constitutionalism its eternal expression in Two Treatises of Government (1690). The basic rule of law rights of human beings--life, liberty and property--precedes the state, which arises due to a contract to introduce government to basically enforce these rights. The gist of British rule of law is the sovereignty of Parliament that makes the law in order to guarantee that basic rule of law notions are respected, but the Parliament does not have to recognize universal suffrage.

   Locke was not a democrat, but Spinoza launched the first democratic theory in his Tractatus Politicus, one hundred years before Rousseau's Social Contract (1762). This Political Treatise is one of the most underestimated works in political thought, because Spinoza died a few days before he had time to finish it with a few pages. Spinoza advances a modern principle-agent argument for the superiority of democracy over monarchy as well as aristocracy. Only when persons recruited from the ranks of ordinary people rule in government can the broader interests of citizens be looked after. However, Spinoza was not a constitutionalist, as he adhered to Hobbes' conception of law as the command of the sovereign.

   On the contrary, Kant launched the German version of the rule of law regime--the Rechtsstaat. Kant rejected democracy, denying the vote for women and for property-less people. In his interpretation, the Rechtsstaat could be found in a constitutional monarchy of Prussian type, which is inconceivable in the British rule of law and its emphasis upon Parliament as the law-maker--"ultra vires.' Kant theorized that rule of law was, domestically, the ultimate political achievement of mankind, and that rule of law would promote eternal peace in international relations.

3. THE BENEFITS OF RULE OF LAW

   Rule of law, whether combined with any form of democracy--referendum type, parliamentary type, presidential dispensation--or not...