The Rule of Law Unplugged
Mathew D. McCubbins
Duke University School of Law
Daniel B. Rodriguez
Northwestern University - Pritzker School of Law
Barry R. Weingast
Stanford University, Department of Political Science
September 3, 2009
U of Texas Law, Public Law Research Paper No. 158
The 'Rule of Law' is a venerable concept, but, on closer inspection, is a complex admixture of positive assumptions, occasionally wishful thinking, and inchoate political and legal theory. While enormous investment has been made in rule of law reformism throughout the world, advocates of transplanting American-style legal and political institutions to developed and developing countries in the world are often unclear about what they are transplanting and why they are ambitiously doing so. Scholars clearly have more work to do in understanding the rule of law and designing institutions to realize the objectives for which this grand project is intended.
In this paper, we revisit the concept of the rule of law in order to help unpack the theoretical and operational assumptions underlying scholarship and reform efforts. We do so from the perspective of legal and positive political theory; and we interrogate various institutional devices (such as constitutionalism and the independent judiciary) in order to shed light on how the construct of the rule of law is being put into service on behalf of cross-national reform initiatives.
Number of Pages in PDF File: 88
Keywords: rule of law
Date posted: September 5, 2009 ; Last revised: April 7, 2010