This essay explores the problem of establishing the rule of law in the developing world. Democracies in the developing world have regular elections yet lack the rule of law. The solution, it is believed, is that these democracies must adopt the “best practices” of Western democracies by reforming judicial systems and strengthening constitutional judicial review. This argument rests on the view that new democracies lack the rule of law because political actors have the power to trump the legal system and the solution, therefore, is to strengthen the formal institutions that support judicial independence.
The essay argues that this view is incomplete because it fails to take into account the difficulties that new democracies face in implementing the rule of law. These polities enjoy the “un-rule of law” where nearly all power is given one individual rather than the rule of law. The un-rule of law is not an aberration but a logical response to the problem of development. For a poor nation faced with a myriad of social and economic difficulties, the logical response is to give nearly all power to one individual to deal with those problems. Rule of law reforms often fail, therefore, because there is considerable political support for this concentration of power.
The key to effectuating the rule of law lies not in adopting rules borrowed from developed democracies but in crafting a constituency for a legal system. Courts are the least dangerous branch. They lack power unless other actors are willing to implement judicial decisions. The reason why the rule of law has proven difficult to implement in the developing world is that there is little political support for the judicial system. Courts are marginal to the politics of developing nations. Developed nations, on the other hand, have effective mechanisms for implementing judicial decisions and political and economic actors, therefore, can use the courts to achieve their aims.
Establishing the rule of law requires the construction of an effective transmission belt from courts to society. The rule of law requires crafting the proper linkages between courts and citizens rather than negating politics. The view that the developing world needs to borrow the best practices of the West and separate law from politics fails to comprehend the processes by which the rule of law becomes effectuated. Understanding the rule of law requires that we reverse the paradigm. It is not the developing world that needs to learn from the West but scholars in the developed world who need to study the un-rule of law.
Date of Authorship for this Version
Rule of Law, Democracy, Law of Development
Schor, Miguel, "The Rule of Law" (2006). Suffolk University Law School Faculty Publications. 30.