Measuring Cross-National and Inter-Temporal Differences in Law-Based Orders: 1946-2010

Abstract

While scholars have grappled with the conceptual ambiguities surrounding the concept of “the rule of law” for well over a century, there has been a renewed interest in this concept in the last two decades. This revival is due in large part to widespread agreement that law based order plays a vital role in societal development. Unfortunately, there is much less agreement on conceptualizing the rule of law. A brief survey of the literature finds mention of societal stability, government constraint, government transparency, government efficiency, level of corruption or, for the more economically oriented, property rights, and contract enforcement. Our conceptualization is based on: 1) three ideals associated with law based order, namely, equality before the law, supremacy of the law, and judicial independence, and 2) the existence of an institutional basis for realizing these ideals, which we term a country’s legal infrastructure.

Measurement schemes are as varied as conceptualizations and most are subjective in nature. We propose an objective measure of both the commitment to law based order and legal infrastructure. Our measure of commitment to a law-based order is based on the degree to which a country codifies a commitment to equality before the law, supremacy of law, and judicial independence in its constitution. We gauge a country’s legal infrastructure by examining institutions for providing both legal education and formalized legal discourse. Countries with abundant numbers of law schools and legal publications reflect a denser legal infrastructure than countries where these institutions are less common.

Our measures provide – for 165 countries in the post-WWII era – objective assessments of a country’s formal commitment to law based order and the degree to which it possesses the necessary infrastructure for that commitment to be realized. We illustrate the measures and integrate them to provide some insights into various historical patterns that characterize different countries.