The Rule of Law and its Promotion Abroad: Three Problems of Scope

Posted: 17 Jun 2016

See all articles by Amichai Magen

Amichai Magen

Stanford University - The Hoover Institution on War, Revolution and Peace

Date Written: June 15, 2016

Abstract

Contemporary academic and policy debates about the rule of law are increasingly shaped by development economists, democratization scholars, and international security practitioners, rather than by political philosophers and constitutional lawyers. To be of genuine relevance to the central quest of the international community for ways to promote self-sustaining, well-governed democracies around the globe, lawyers must overcome three main “problems of scope” which afflict existing academic and policy discourses about the rule of law and its promotion abroad.

Conceptual scope: legal scholars must depart from a primarily jurisprudential approach to the notion of the rule of law; embracing instead a substantive, contextual understanding which conceptualizes the rule of law as a critical dimension (arguably the critical dimension) of democratic quality, and which views the development of rule of law conditions in domestic systems as integral to broader processes of political development within those systems. I argue that evolution in legal philosophy, development economics, and democratization theory over the past two decades makes the endorsement of a substantive, democratic definition of the rule of law increasingly compelling. Moreover, I call for the adoption of an operational notion of the term; one that is not only inextricably linked to the institutions and norms of liberty, but which holds different meanings in different types of democratic development outcomes — ranging from post-conflict state-building to the opening of private spheres in autocratic regimes, and from ensuring free and fair electoral transitions to the evolution of the institutional, regulatory and normative elements necessary for minimalist, illiberal democracies to mature into effective, liberal ones.

Intellectual scope: going beyond existing critiques of the prevailing rule of law orthodoxy, I argue for an end to the estrangement of the field from a broader set of emerging literatures on applied democratic development and external influence on domestic political, economic, and social change. This requires legal scholars and practitioners interested in the rule of law and its promotion abroad to expand the intellectual scope of the existing rule of law literature, drawing insights from a number of disciplines, including international legal scholarship, comparative politics, international relations theory, development economics, and regional integration studies. Empirical scope: opening up to theoretical, conceptual, and methodological contributions from these peer disciplines finally leads to a recognition of the need to expand the empirical canvas of inquiry regarding potential sources and mechanisms of external influence on domestic rule of law conditions. With only rare and minor exceptions, the existing American-dominated rule of law literature implicitly equates rule of law aid (financial and technical assistance) with the totality of external factors involved in rule of law promotion. In reality, however, aid represents only one component — arguably a relatively minor one — in a far broader spectrum of intervention mechanisms available to international actors, actually and potentially.

Keywords: Rule of Law; Promotion

Suggested Citation

Magen, Amichai, The Rule of Law and its Promotion Abroad: Three Problems of Scope (June 15, 2016). Stanford Journal of International Law Vol. 45, No. 1, 2009, Available at SSRN: https://ssrn.com/abstract=2795949

Amichai Magen (Contact Author)

Stanford University - The Hoover Institution on War, Revolution and Peace ( email )

Stanford, CA 94305-6010
United States

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