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.

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