The Rule of Law: Its History and Meaning in Common Law, Civil Law, and Latin American Judicial Systems

Abstract

This article compares and contrasts the concept of the rule of law as it developed in common law and civilian legal systems, including discussion of the underlying cultural differences. It also examines how and why Latin American legal systems developed problems, and the failure of the three waves of reform efforts that attempted to ameliorate those problems. By comparing unsuccessful independent judiciary reform efforts in Venezuela to successful efforts in Chile, it posits that significant change can only come about when it is brought by consensus, when changes are implemented on a whole system in a careful, thoughtful manner, and when the change being brought includes a rule of law (as opposed to rule through law) component: in other words, it proves checks and balances to keep governmental power and politicization in check. The advantage in common law countries is based on procedural, structural, political, and cultural characteristics, rather than on any substantive differences in the law. Consequently, developing countries are best served by developing their own solutions to problems, such as an inefficient judicial system, rather than relying primarily on advice (and funding) from outside entities.

Keywords: rule of law, latin america, civil law, common law, economics, culture