Academic journal article Romanian Journal of Political Science

A Theory of Rule of Law (RL)

Academic journal article Romanian Journal of Political Science

A Theory of Rule of Law (RL)

Article excerpt

Introduction

It is often stated that the process of globalization promotes the equalisation of civilization. Thus, economic differences shrink, investments spread, and the internet highway connects more and more. Financial markets are open consecutively; global travelling is skyrocketing year after year, etc. Are there any basic differences between the civilisations of today? Hardly economically, besides the poverty of Sub-Saharan Africa, but politically: yes.

What is most dear to ordinary people is to live their lives under a rule of law regime where they are protected concerning life, liberty and property. But less than half the population of the world is enjoying the benefits of rule of law. Why is that?

I will argue in this paper that culture has something to do with the enforcement of the rule of law (RL). Moreover, in my view, rule of law trumps democracy, which is why it is the greatest idea in Western political history or historical thought.

I. RULE OF LAW: Meaning and measurement

The study of rule of law regimes has been much advanced in the large Government Project by the World Bank, starting in 1999 and delivering each year a series of data covering about 210 countries.

The concept of good governance has no standard definition in the dictionaries. Instead, I will rely upon the approach of the World Bank to governance in its major project. The WB states:

"Governance consists of the traditions and institutions by which authority in a country is exercised. This includes the process by which governments are selected, monitored and replaced; the capacity of the government to effectively formulate and implement sound policies; and the respect of citizens and the state for the institutions that govern economic and social interactions among them." (http://info.worldbank.org/governance/wgi/index.asp)

The WB Governance project, mapping good or bad governance around the globe during the last decade, identifies six dimensions in the concept introduced in the quotation above. I will focus exclusively upon rule of law RL.

A political regime that runs according to rule of law would satisfy a few conditions that constrain the exercise of political power. Rule of law entails that power is exercised according to the following precepts concerning due legal process and judicial accountability:

--Legality: nullum crimen sine lege;

--Constitutionality: lex superior;

--Rights and duties: negative human rights; habeas corpus;

--Judicial independence: complaint, appeal, compensation.

A government adhering to these precepts is likely to be more successful in enhancing socio-economic development than a government that fails to respect these principles. Thus, economic activity will be stimulated by legal predictability, the protection of property, and the autonomy of judges when testing cases for assumed violations of legality or constitutionality (Cooter and Ulien, 2010).

The link between good governance satisfying rule of law precepts (1)-(4) above and socio-economic development is the integrity of contracts, i.e. the ease with which the honouring of agreements can be accomplished, from the making of a contract to its enforcement in court. When economic agents can go about their business knowing what they can contract about on the basis of certain and reasonable expectations, then the workings of the invisible hand is in place.

The rule of law regime offers constraints upon political power, whether the power of political leaders or that of bureaucrats. It counteracts a number of vices that political power often succumbs to, including: (a) Arbitrariness; (b) Corruption and embezzlement; (c) Nationalisation of property; (d) False accusations and unreasonable search and seizure; (e) Detention without accusation; (f) Politicised court rulings. Thus, a country which honours rule of law upholds rules that restrain politicians and bureaucrats in an effort to promote the outcomes (a)--(f), which are beneficial for both economic life and political liberty. …

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