Defining The Rule of Law
We often hear the term “rule of law” thrown around in the news or by politicians attempting to bolster their political platforms, but what does it really mean? This week, I was exposed to learning materials that attempted to define the rule of law, and each source provided a slightly different definition. The authors of Can Might Make Rights?: Building the Rule of Law After Military Interventions noted that many people approach the rule of law with an “I’ll know it when I see it” viewpoint. They went on to explain that there are two major conceptions of the rule of law: the minimalist conception and the maximalist conception. The minimalist conception values the structural and formal components of the rule of law. This conception relates to the idea that there should be a government of laws, not of men. The maximalist conception, on the other hand, suggests that a true rule of law also requires substantive commitments, such as a commitment to human rights. This approach was eye-opening for me, as I realized that the rule of law is not always synonymous with justice. A society governed by “the rule of law” must still maintain a commitment to principles of equality, liberty, etc. in order to create a just society.
Many modern definitions of the rule of law seem to lean toward the maximalist conception. For example, the UN defines the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.” The authors of Can Might Make Rights?: Building the Rule of Law After Military Interventions offer an even more substantive definition. They define the rule of law as “a state of affairs in which the state successfully monopolizes the means of violence, and in which most people, most of the time, choose to resolve disputes in a manner consistent with procedurally fair, neutral, and universally applicable rules, and in a manner that respects fundamental human rights norms (such as prohibitions on racial, ethnic, religious, and gender discrimination, torture, slavery, prolonged arbitrary detentions, and extrajudicial killings)."
After engaging with the material, I started to think more about how the projects NCSC implements contribute to the rule of law abroad. I have primarily worked with our projects in Moldova, and in Bosnia and Herzegovina. These projects focus on legal education, and as I have continued to sit in on meetings with the field office teams in these countries, I’ve come to understand just how important a strong legal education system is in establishing the rule of law. No justice system can be effective if the lawyers, judges, and other personnel contributing to the system are unprepared to fully carry out their roles. To create an effective legal system or court system, it’s important that students are exposed to legal research and writing skills, as well as other practical skills- such as oral argument. While NCSC is hoping to extend their legal education program in Bosnia and Herzegovina, we are also applying for funding to implement an anti-corruption program in the country. Anti-corruption initiatives are crucial to ensuring that laws are equally enforced and that disputes are fairly adjudicated. So although NCSC implements projects in different focus-areas, they are all advancing the rule of law in some way. That goes to show that there are many ways to build a society governed by the rule of law, and that establishing the rule of law may even require a variety of approaches across different legal and judicial sectors. I have come to realize that the rule of law can mean many different things to different people, and rule of law projects can look substantially different depending on the needs of individual countries or regions. While there is no easy way to define the rule of law, I do think that I am beginning to get a grasp on how organizations like the NCSC can work to advance the rule of law.