Academic journal article International Journal of Comparative Sociology

Toward a Universal Declaration of the Rule of Law: Implications for Criminal Justice and Sustainable Development [*]

Academic journal article International Journal of Comparative Sociology

Toward a Universal Declaration of the Rule of Law: Implications for Criminal Justice and Sustainable Development [*]

Article excerpt

ABSTRACT

Since its inception, the U.N. has provided a forum for the elaboration and promotion of general principles of social, economic, and political life. In the context of crime prevention and criminal justice, several standards, norms, and guidelines have been created. Perhaps the most widely stated yet least understood general principle at the core of criminal justice has been the notion of the "rule of law." Persons, agencies, and governments from disparate regional, cultural, and legal backgrounds seem to acknowledge the concept positively. Indeed, it is often referred to as an essential foundational element of a just society and as a prerequisite for sustainable development. This paper first attempts to chart the history of the "rule of law" in terms of its definition and international promotion. Second, it outlines the development in the U.N. of the Universal Declaration of Human Rights. The link between the rule of law and human rights is then discussed with a view to determining the strengths and weaknesse s of each as tools in assisting governments with sustainable development. The paper concludes by suggesting that the U.N. develop a Universal Declaration of the Rule of Law, potentially a more effective mechanism for development.

Introduction

IN RECENT YEARS, no discussion of international development or debate over foreign policy has been complete without some mention of the "rule of law." Speeches and articles by foreign ministers, academics, and international civil servants alike have emphasized the important role that the rule of law can play in sustainable development. While certainly no panacea for the intractable problems of developing countries, it is widely accepted that the rule of law can facilitate economic growth and lead to genuine political reform. The authority of the people over a government stems from the individual rights guaranteed by the rule of law. And without the rule of law, the most basic elements of a modem market economy such as property rights and contracts simply cannot function. Indeed, as one recent observer put it, "hardly anyone these days will admit to being against the idea of law" (Carothers 1998:99).

As a result, the past decade has seen many international agencies, including the U.N. and the World Bank, pour vast resources into technical assistance for rule of law promotion in the developing world. Rewriting constitutions, developing comprehensive legal code, and training lawyers and judges, international consultants have descended upon developing countries in droves.

Yet there is a growing sense in the international community that these aid programs have not lived up to the high expectations that marked their initiation. Many have criticized rule of law assistance programs for their near exclusive attention to institution-building at the expense of contextual considerations. What good are well-written rules if no one follows them? What is the use of informed, reasoned judicial decisions if no one trusts the judges? To be sure, the failure to cultivate an environment surrounding these new institutions that would support the rule of law is a genuine concern. But it must be acknowledged that there is a more fundamental reason behind these disappointing results: no one in the international community is quite sure what the term "rule of law" actually means.

This paper suggests that before the concept can be effectively promoted in the developing world, the international community must first come together to establish a working definition of the rule of law. In the post-war period, the crafting and elaboration of a Universal Declaration has been instrumental in developing consensus and clarity surrounding the concept of human rights. Similarly, a UN-sponsored Universal Declaration of the Rule of Law would provide just the common ground necessary to unite the international community behind this fundamental tool of sustainable development. …

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