Encyclopedia of Law and Society: American and Global Perspectives, Forthcoming
6 Pages Posted: 27 Mar 2006 Last revised: 17 Oct 2011
This essay explores the problem of establishing the rule of law in the developing world. Democracies in the developing world have regular elections yet lack the rule of law. The solution, it is believed, lies in adopting the best practices of Western democracies by reforming judicial systems and strengthening constitutional judicial review. This argument rests on the view that new democracies lack the rule of law because political actors have the power to trump the legal system and the solution, therefore, is to strengthen the formal institutions that support judicial independence.
The essay argues that this view is incomplete because it fails to take into account the difficulties that new democracies face in implementing the rule of law. These polities enjoy the un-rule of law where nearly all power is given one individual. The un-rule of law is not an aberration but a logical response to the problem of development. For a poor nation faced with a myriad of social and economic difficulties, the logical response is to give nearly all power to one individual to deal with those problems. Rule of law reforms often fail, therefore, because there is considerable political support for this concentration of power.
The key to effectuating the rule of law lies not in adopting rules borrowed from developed democracies but in crafting a constituency for a legal system. Courts are the least dangerous branch. They lack power unless other actors are willing to implement judicial decisions. The reason why the rule of law has proven difficult to implement in the developing world is that there is little political support for the judicial system. Courts are marginal to the politics of developing nations. Developed nations, on the other hand, have effective mechanisms for implementing judicial decisions and political and economic actors, therefore, can use the courts to achieve their aims.
This essay argues that establishing the rule of law requires the construction of an effective transmission belt from courts to society. The conventional view that the developing world needs to borrow the best practices of the West by separating law from politics fails to comprehend the processes by which the rule of law is realized. Understanding the rule of law requires that we reverse this paradigm. It is not the developing world that needs to learn from the West but scholars in the developed world who need to study the un-rule of law. The rule of law does not rest on negating politics but on facilitating the development of the proper linkages between courts and society.
Keywords: Rule of law, globalization, democratization
Suggested Citation: Suggested Citation
Schor, Miguel, The Rule of Law. Encyclopedia of Law and Society: American and Global Perspectives, Forthcoming; Suffolk University Law School Research Paper No. 07-14. Available at SSRN: https://ssrn.com/abstract=889472
By David Law