The Politics of Rule of Law Systems in Developmental States: ‘Political Settlements’ as a Basis for Promoting Effective Justice Institutions for Marginalized Groups

Abstract

The rule of law (ROL), although an “essentially contested concept”, can be understood pragmatically as a system that informs people of what to expect from others through durable and enforceable rules applying equally to all constituent members of a given juridical space. This literature review engages with “the politics of what works” with regard to ROL interventions in development, through an exploration of how these expectations and encompassing rules are shaped within and between groups, as political settlements broaden across political, economic and social dimensions. We understand the politics of ROL as deeply complex and inherently multi-directional: elites, for example, certainly use ROL, but legalization is powerful and can be used in unpredictable ways against elites by other elite groups or by non-elite actors. We review an extensive literature to explore how contests among and between elites and end users shape institutions through a contested, iterative and dynamic process that, in any given setting, is likely to yield an idiosyncratic outcome borne of a unique hybrid mix of local and external inputs. As such, “more research” as conventionally understood will only yield marginal improvements in conceptual clarity and to our cumulative empirical knowledge of the dynamic relationship between ROL, politics and development. The political salience, legitimacy and action-ability of such understandings much be negotiated anew in each setting, between different epistemic groups (professions, users, policymakers) and across divides of gender, ideology and class. We conclude with some specific suggestions for how to enhance the rigor and relevance of ROL interventions from both an analytical and practical standpoint.

Keywords: Rule of law, access to justice, justice systems, elite politics, political settlement, institutional form, institutional function, policy frames, political organization, state-society relations