The Rule of Law and Human Rights

By Apodaca, Clair | Judicature, May/June 2004 | Go to article overview

The Rule of Law and Human Rights

Apodaca, Clair, Judicature

An examination of 154 developing and transitional countries indicates the importance of law and judicial independence in securing a variety of human rights.

Human rights advocates, legal scholars, and politicians have posited that the primacy of the law is fundamental to the protection and promotion of human rights. Functioning, independent judiciaries under the rule of law can end the impunity, preferential treatment, and political protection of the perpetrators of human rights violations-without them, human rights and humanitarian guarantees are fragile, and social justice merely a dream. This article examines the relationship between the presence of independent, autonomous, and effective judiciaries within the borders of sovereign states in the developing world and the protection of human rights.

Is law meaningless?

Despite the growing influence of human rights on everyday politics, many researchers still operate under the assumption that the law is meaningless, a mere window dressing in international affairs.1 Any regime that is willing to murder, torture, or arbitrarily detain its citizens will have little compunction against violating words on a piece of paper. Moreover, if a regime were to recognize legal limits on its authority, it would not violate the human rights of its citizens.

In her cross-national, pooled, time-series statistical study on constitutional provisions for human rights, Linda Camp Keith found that constitutional guarantees to 10 fundamental rights (freedom of speech, assembly, press, religion; public trial; fair trial; the right to strike; writ of habeas corpus; and ban against cruel or inhumane punishment) were "somewhat discouraging:"2 many were statistically insignificant or even correlated with repressive government behavior. "In particular," Camp Keith writes, "the assessment of the impact of the constitutional promise of the five basic freedoms (speech, assembly, association, religion, and the press) and the right to strike on human rights abuses is not very optimistic. None of these provisions produced an observable improvement on human rights behavior."3 The obvious and disheartening conclusion is that constitutions are generally no more than mere window dressing, or "worthless scraps of papers." 4

However, the assessment that legal rules and institutions are meaningless is far from conclusive. For example, Christian Davenport's pooled, cross-section times-series research involving 39 countries from 1948 to 1982 found that a constitutional guarantee of freedom of the press does reduce governmental repression.5 Interestingly, a constitution with a clause that legally allows the restriction of rights during states of emergency also reduces the likelihood that a regime will repress its citizens-an indication, posits Davenport, of a government's "concern for legitimate governance and the delimitation of state powers under different circumstances."6 Frank Cross has also examined the effects of legal institutions on human rights protection and found that "legal institutions, and in particular judicial independence, are significant in protecting human rights."7

Camp Keith's study supports the theory that an efficient, equitable, and independent judiciary-which can curtail the repressive behavior of the other branches of government-is an important prerequisite for human rights protection. "A truly independent judiciary," she found, "is expected to be able to counter incursions upon individual rights by other branches of the government."8 The adoption of constitutional provisions for independent judiciaries, it seems, is not merely parchment protection: those states with constitutional guarantees of an independent judiciary have better human rights records.

An equally important finding is that the greater the number of lawyers and law schools in a country, the better the human rights performance. Cross believes that a larger number of lawyers working in a country represents the "country's devotion to enforcing the rule of law. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)


1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited article

The Rule of Law and Human Rights


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.