“The Mess that is Definitions of Rule of Law”
This is the title of a document I created to keep track of all the definitions of rule of law I encountered in the readings for my internship’s weekly learning sessions. The learning sessions are an important feature of the internship, designed to enrich the practical assignments related to rule of law projects. As my supervisor says, the goal of the sessions is not that everyone leaves thinking they have the rule of law figured out, but that everyone has the opportunity to grapple with questions related to rule of law. That the goal is to grapple rather than necessarily understand is comforting, since I was fairly confused after the first couple sessions. My confusion about the meaning of “rule of law” arose not from a single source, but from comparing the different sources we read with one another -- each has a slightly different list of necessary features of the rule of law, including supremacy of law, equality before the law, fairness, participation in decision-making, legal certainty, avoidance of arbitrariness, order and security, legitimacy, effective application, and efficiency. In reading these various lists, I was reminded of Socrates’s complaint about giving examples in the place of definitions. The examples and features were helpful, but I lacked a coherent framework. Despite this chaotic situation, some clarity has emerged over the course of the learning sessions.
First, the way that rule of law is talked about depends on the institution and its audience. This is a banal point, but it goes a long way to making sense of the myriad ways that rule of law is described. For example, the UN’s Definition emphasizes the importance of international human rights norms and standards. The USAID Rule of Law Strategic Framework emphasizes how rule of law promotes democratic governance, while the USAID Rule of Law Practitioner’s Guide highlights social and economic development. The World Justice Project highlights the timely deliverance of justice by competent, ethical, and independent representatives. Interpreting rule of law conceptions functionally helped me get past my initial irritation at the variety of proffered features of rule of law lacking an overall framework. Instead of fixating on the question of what the rule of law is and being disappointed by the lack of a satisfactory definition, ask what the specific institution(s) in question aims to accomplish and how, as a result, that institution adapts the rule of law to its mission.
Second and relatedly, I’ve come to think of rule of law in an historical and means-end framework. I would say that there is no abstract Rule of Law antecedent to historical conditions or the activities of individuals, associations, institutions (like NCSC), and governments. In connection with this, I would say that there is no utility in trying to intellectually grasp the essence of Rule of Law so as to then instantiate it in different contexts. Rather, when thinking about rule of law, it’s useful to focus on desired social outcomes and consider how rule of law projects further those goals. The condition of rule of law is not an end in itself, but is a means to or integral part of the kind of society that a public desires. Cordoning off “rule of law” as a distinct topic, discoursing about it in a vacuum, disconnected from practical social ends and the needs of people, is (to me) unhelpful. In connection with this last point, one of the ways that The Hague Institute for Innovation of Law (HiiL) and other institutions talk about rule of law is in terms of “people-centered justice.” At first, I thought of this as another vacuous slogan. But interpreting this as shorthand for the idea that rule of law and justice are not about abstract ideas and prepackaged institutions, but about how to practically solve peoples’ needs, I can make sense of it and get on board with it.
Another way of putting these points is in terms of a distinction I got from the first learning session’s reading: chapter 3 of Can Might Make Rights? Building the Rule of Law After Military Interventions by Jane Stromseth, David Wippman, and Rosa Brooks. The distinction is that between minimalist and substantive conceptions of the rule of law. “The minimalist conception of the rule of law emphasizes the rule of law's formal and structural components, rather than the substantive content of the laws” (70; italics in original), whereas “[a] substantive account… does not necessarily reject the notion that the rule of law has important structural and formal elements -- predictability, universality, nonarbitrariness, and so on -- but it insists that the rule of law also requires particular substantive commitments: to human rights, for instance,” (71; italics in original).
After reading this and considering, I sided with a substantive account of rule of law. Two thoughts led me to this. First, as the authors note, “it is easy to imagine a horrifically abusive government that might fully comply with the purely formal dimensions of the rule of law,” (71). For me, this simple observation is decisive against a minimalist conception. A rule of law that is just “following the rules,” regardless of what the rules or their purposes are, strikes me as uninteresting at best, leaving out everything that really matters in our concern with the rule of law. Second, I find the main objections against substantive accounts -- that there is disagreement about substantive accounts of the rule of law and troubling power dynamics involved in who gets to decide what the substantive account is -- unpersuasive as reasons to reject a substantive account and retreat to a minimalist one.
To me, it’s a given that there will be both disagreement and power dynamics shaping the understanding and implementation of rule of law. I would add that disagreement and power dynamics are involved in minimalist accounts as well. To me, only a substantive account of the rule of law -- that is, an account that articulates the goals of the rule of law -- gets at what I take the whole point of rule of law talk to be: achieving the kind of society we desire to have. Of course, there is no single “we” doing the desiring. An autocrat and a democrat have opposed visions of the society they want to live in, with concomitant differing conceptions of the rule of law. To me, a democrat, the autocrat’s conception of the rule of law would amount to nothing but rule by law, i.e. a society held together, such as it is, by force. The autocrat might say that my democratic commitments actually undermine order and stability, the hallmarks of a lawful society. I might respond that the autocrat doesn't even envision a society, much less one in which people may flourish, but rather an opportunity for their own aggrandizement. At any rate, I think disagreement over substantive accounts is better than faux concord over empty formalistic conceptions.
In conclusion, I want to note that when I started thinking about the rule of law, I could see no inherent connection between rule of law and democracy. I still don’t see an inherent connection. As noted, a minimalist conception of the rule of law might be satisfied by a totalitarian state. And there are substantive accounts of the rule of law that are opposed to democracy. Instead of seeking an inherently democratic essence of the rule of law, I take rule of law projects of the United States and other democratic countries as being aimed at strengthening democracy. Taking the features of rule of law noted above -- including equality before the law, fairness, participation in decision-making, legitimacy, etc. -- it would seem that at some point, if these things are actually implemented, some form of real democracy is going to be the result. In other words, democratic countries’ rule of law projects are consciously pursued with democratic ends in mind. Speaking ideally, that is. There is, of course, the historical record to consult, which reveals the people of the United States and other professed liberal democracies frequently failing to live up to their democratic ideals, abroad and at home. That is true and must be understood and acted upon. But in terms of making sense of the rule of law as democratic, I see it as connected with democracy only to the extent that we make it so.
In a future post, I will move from talking about the internship’s learning sessions and my musings to the practical assignments I’ve been working on.