Since December 2010, the eyes of the world have been drawn to the dramatic developments in North Africa and the Middle East, as popular revolutions have toppled autocratic regimes throughout the region. The American people's egalitarian instincts have sided with the democratic political aspirations of these revolutions. However, our obsessive focus on free and fair elections has caused us to overlook another critical element in the construction of flourishing societies in Arab Spring countries. The framers of the new constitutions in these countries, and the people themselves, will need to construct impartial, fair, independent, and transparent judicial systems, and a culture of confidence in their courts in order to foster a robust civil society. Only then will citizens feel secure that they will be justly treated if they are subjected to overreach by popular majorities or executive entities. The development of impartial and independent courts is a prerequisite to the rule of law.
The "rule of law," a somewhat elusive concept, but a phrase often used by political theorists and international development agencies, refers to sets of norms, social practices, and institutions developed by societies to curb the arbitrary exercise of power, including simple protections of physical safety. The more basic version of the rule of law restricts political leaders to a set of formal decision-making processes. It defines the entities that create and review laws, describes the procedures they must follow, and establishes independent mechanisms to assess whether proper procedures were followed in individual cases. This "rule by law" can structure diverse political orders, including authoritarian regimes, as long as such formal rules are honored.
A "thicker" version of the rule of law, as the Center on International Cooperation at New York University noted in a recent report, "denies that mere procedural formality can protect individuals or groups from oppression and insists that effective rule of law requires a deeper set of constitutional and legal norms," ranging from guarantees of full citizen equality and political participation to the full array of contemporary understandings of human rights, in order to help provide for human security and development. The thick version has further been defined by a UN secretary general report 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." It requires measures to ensure judicial independence and legal transparency, the separation of powers, and broad access to the political process.
The thick version of the rule of law has typically assigned a central role to the judiciary. The internationally respected Bangalore Principles of Judicial Conduct (2002) and the United Nations' Basic Principles on the Independence of the Judiciary (1985) both emphasize an impartial judiciary. As one UN commentator on the Bangalore Principles observes, a universal aspiration for the rule of law "depends for its fulfillment on the competent and impartial application of the law by judges." According to judicial reform expert Norman Greene, the rule of law historically has emphasized ensuring an independent, qualified, and impartial judiciary. "In order for the public to accept an independent judiciary," he has noted, "they need to have a judiciary which they believe to be impartial; and for a judiciary to be impartial, it needs to be independent, free of threats or inducements by political or other forces to decide one way or another."
The development of such an independent judiciary, broadly conceived, rests upon a three-part scaffold. The first essential support is structural, and entails the creation of a separation of powers, a method for selecting qualified judges, a definition of their tenure and the circumstances for their removal, and a determination of the scope and finality of judicial review. …