Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies
Brent T. White
University of Arizona - James E. Rogers College of Law
March 13, 2009
Cornell International Law Journal, Forthcoming
Arizona Legal Studies Discussion Paper No. 09-09
Scholars have theorized that rule-of-law reform in post-communist Central Asia and Eastern Europe has been thwarted by a Soviet legacy of disrespect for the law. These scholars argue that ingrained practices of nepotism, influence-peddling, and corruption have undermined formal institutions and left little room for the rule of law to grow. Thus, they argue, successful rule of law reform depends as much upon changing the beliefs that people have about the law as it does upon reforming legal institutions. This argument has resonated with rule-of-law aid practitioners, resulting in a proliferation of civic education programs in post-Soviet states designed to "foster a rule of law culture."
Using Mongolia as a primary case study, the article contests the assumptions underlying the civic education approach to rule-of-law reform. It also argues that, given the socio-political realities of many countries in which rule-of-law education programs have been implemented, they are not only likely to fail, but to lead to disillusionment, cynicism, and further disrespect for the law. In some cases, they also risk legitimating unjust laws and authoritarian regimes.
This article proposes an alternative to the rule-of-law project: Juries. Rule-of-law reformers have largely rejected jury systems on the ground that juries often disregard or cannot understand the law. Reformers have also feared that juries would discourage foreign investment by introducing just the type of uncertainty that "rule of law" is meant to prevent. This article responds that, in emerging democracies, certainty is less important than contextualized justice that reflects community values. It also argues that the deliberative process of jury decision-making promotes civic engagement, allows broader democratic participation in the law-making project, and may effectively check judicial corruption. Thus, juries may help restore faith in judicial institutions and lead emerging democracies closer to the rule of law ideal.
Number of Pages in PDF File: 71
Keywords: juries, rule of law, democracy and development, corruption, post-soviet
JEL Classification: K33, K42
Date posted: March 14, 2009 ; Last revised: July 27, 2010