Inequality and the Rule of Law
Daniel M. Brinks
University of Texas at Austin - School of Law
University of Notre Dame
APSA 2010 Annual Meeting Paper
There is a perennial debate regarding whether we should care about relative deprivation – inequality – or only about absolute deprivation – poverty. In this paper I offer a reason to care about inequality per se. I develop a theory connecting high levels of inequality to the failure to develop mechanisms to effectively protect and enforce formal rights enshrined in constitutions and laws. I argue that, in order to become effective, rights require the intended beneficiaries to develop and engage with a network of ancillary supporting institutions, formal and informal. Both engaging with these supporting institutions and developing them in the first place involves a struggle between those who would benefit from and those who would bear the burden of the rights in question. When there is within this dyad significant inequality in favor of the burden-bearer, the rights in question are likely to remain purely formal. The key to the denial of rights at this micro-level, then, is differential access to “legal” resources.
Moreover, democracy, under conditions of high inequality and the globalization of human rights norms, distributes law-making influence more broadly than legal capacity. As a result, such democracies develop formal rights that far exceed the capacity of the purported beneficiaries to appropriate and put to use. This produces the particular brand of unrule of law evident in much of the developing world today – a constantly improving palette of formal rights that remain largely unrealized. The perception that the rule of law in the developing world is worsening is, in this view, attributable to the fact that the legal target is moving away from the reality, rather than because the reality is drifting away from the legal norm. Evidence for the argument is found in intra- and cross-country variation: effective legal regimes arise surrounding rights for the middle class and other effectively empowered groups (including traditionally marginalized groups who attain significant political power), while rights for groups that remain disempowered remain purely formal; and in countries where material inequality is improving, rights are becoming more effective.
Number of Pages in PDF File: 40
Date posted: July 19, 2010 ; Last revised: August 31, 2010