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TABLE OF CONTENTS I. BOLSTERING THE SHAKY FOUNDATIONS OF THE HUMAN RIGHTS MOVEMENT: CONCEPTUAL ISSUES A. Rule of Law to the Rescue? The Contested Nature of Rule of Law B. The Inability of Rule of Law to Provide Effective Guidance on Specific Issues II. THE IMPLEMENTATION OF HUMAN RIGHTS AND THE PRACTICAL LIMITATIONS OF RULE OF LAW: EMPIRICAL ISSUES III. RULE OF LAW, ECONOMIC GROWTH AND HUMAN RIGHTS: THE LIMITS OF ALTRUISM AND OTHER OBSTACLES IV. RULE OF LAW, DEMOCRACY AND HUMAN RIGHTS: ALL GOOD THINGS NEED NOT GO TOGETHER V. RULE OF LAW AND WAR: AFTER 2000 YEARS NOT QUITE INTER ARMES, SILENT LEGES, BUT NOT MUCH BETTER A. Prevention of War B. Prevention or Mitigation of Abuses During War VI. RULE OF LAW, TRANSITIONAL JUSTICE, NATION BUILDING AND THE ESTABLISHMENT OF RIGHTS-RESPECTING REGIMES: THE LIMITS OF LAW, POLITICAL WILL AND KNOWLEDGE A. Competing Thick Conceptions of Rule of Law and Reconstruction Efforts: A Margin of Appreciation and the Limits of Tolerance B. Thin Rule of Law as the Basis for Reform in Failing and Developing States C. Challenges to the Establishment of Thin Rule of Law D. Rule of Law and Transitional Justice VII. RULE OF LAW AND TERRORISM VIII. AMERICAN EXCEPTIONALISM AND RULE OF LAW IX. CONCLUSION
Rule of law in some form may be traced back to Aristotle and has been championed by Roman jurists; medieval natural law thinkers; Enlightenment philosophers such as Hobbes, Locke, Rousseau, Montesquieu and the American founders; German philosophers Kant, Hegel and the nineteenth century advocates of the rechtsstaat; and in this century such ideologically diverse figures as Hayek, Rawls, Scalia, Jiang Zemin and Lee Kuan Yew. (1) Until recently, however, the human rights movement paid relatively little attention to the relationship between rule of law and human rights. (2) The Universal Declaration of Human Rights mentions rule of law only in passing in the preamble, suggesting in typically cryptic fashion that "human rights should be protected by the rule of law." (3) Neither the International Covenant on Civil and Political Rights (ICCPR) nor the International Covenant on Economic, Social and Cultural Rights (ICESCR), the other two main pillars of the "international bill of rights," mentions rule of law. (4) Nor do most other early rights treaties, general assembly statements, committee reports or comments appeal to rule of law.
In contrast, references to rule of law now regularly appear in general assembly resolutions, committee reports, regional workshop platforms and other human rights instruments. (5) Rule of law is central to the European Convention and is one of the requirements to join the European Union. (6) The World Bank and the International Monetary Fund (IMF), limited by their charters from directly intervening in domestic political affairs, have emphasized rule of law and good governance. (7) In 2002, the late U.N. Human Rights Commissioner Sergio Vieira de Mello made rule of law the centerpiece of his brief tenure in office. (8)
This Article considers several explanations for the international human rights movement's sudden heightened attention to rule of law. The human rights movement has increasingly encountered conceptual, normative and political challenges. In particular, the movement's claim to universality has been shattered by critiques that take issue with the secular, individualistic, liberal commitments of the movement. (9) In contrast, rule of law appears to be widely accepted by people of different ideological persuasions. Christians, Buddhists and Muslims; libertarians, liberals and Confucian communitarians; democrats, soft authoritarians, even socialists and neo-Marxists (10) all find value in rule of law. Rule of law then may provide one way to shore up the shaky foundation of the human rights movement. Perhaps, as de Mello suggested, rule of law will be a "fruitful principle to guide us toward agreement and results," and "a touchstone for us in spreading the culture of human rights." (11)
Whatever the human rights movement's conceptual and normative shortcomings, the movement's biggest failure has been not making good on the promise of a better life enjoyed by all in accordance with the utopian ideals contained in the ever-swelling list of human rights. Despite the movement's successes, we still live in a world where widespread human rights violations are the norm rather than the exception. Rule of law is seen as directly integral to the implementation of rights. Without rule of law, rights remain lifeless paper promises rather than the reality for many throughout the world.
Rule of law may also be indirectly related to better rights protection in that rule of law is associated with economic development, democracy and political stability, which are key determinants in rights performance. A long line of economists, legal scholars and development agencies from Max Weber to Douglas North to the World Bank have argued that rule of law is necessary for sustained economic growth. Rule of law protects property rights and provides the necessary predictability and certainty to do business. With one-fourth of the world's population living below the international poverty line of $581 a year per capita, 790 million people lacking adequate nourishment, one billion living without safe water to drink, two billion suffering from inadequate sanitation and 880 million lacking access to basic healthcare, economic growth is essential to the alleviation of some of the worst human suffering. (12)
Rule of law is integral to and necessary for democracy and good governance. Attempts to democratize without a functional legal system in place have resulted in social disorder, as in Russia, East Timor, Haiti, Kosovo, Afghanistan and Iraq, and in the collapse of democratic regimes and their replacement by more authoritarian regimes in Indonesia in 1957, the Philippines in 1972, South Korea in the 1970s and numerous former Soviet republics. (13)
Rule of law is said to facilitate geopolitical stability and global peace. (14) According to some, it may help prevent wars from occurring in the first place. (15) It also provides guidelines for how war is carried out, limiting some of the worst atrocities associated with military conflicts. It offers the possibility of holding accountable those who commit acts of aggression and violate humanitarian laws of war, and it is central to the establishment of a fights-respecting post-conflict regime.
Post-9/11 concerns over terrorism have also focused attention on rule of law as a means to hold terrorists accountable and to legitimize their capture and punishment, often through the promulgation of national defense and anti-terrorist laws. (16) The war on terrorism has been characterized as a war on "our" way of life--on democracy, human rights and rule of law--and ergo on civilization itself. Kofi Annan claimed that the terrorist attacks on the United States "struck at everything [the United Nations] stands for; peace, freedom, tolerance, human rights[,] ... the very idea of a united human family[,] ... all our efforts to create a true international society, based on the rule of law." (17) Conversely, rule of law plays a crucial role in ensuring that civil liberties are not encroached upon in the zeal to crack down on suspected terrorists and has been invoked to protest, for instance, the so-called Patriot Act. (18)
In addition, the upsurge of U.S. unilateralism and American-style cultural relativism has challenged the universality of human rights, exposed the soft underbelly of the international order and its vulnerability to power politics and threatened to undermine the foundation of the international legal order upon which the edifice of international human rights rests. (19) Rule of law provides a rhetorical basis for challenging the world's sole reigning superpower. Indeed, Annan recently reiterated that the U.S.-led invasion of Iraq was illegal (20) and called on all nations, weak or strong, to abide by international law and uphold rule of law. (21)
Taking each of these factors in turn, I critically analyze the relationship between rule of law and human rights in order to address the following: To what extent are the high hopes for rule of law justified? What are the conceptual, normative and practical limits of rule of law? What are the main obstacles to implementation of rule of law domestically and internationally? What changes in the international order would be required to realize the possibilities of rule of law? Given such limitations, what can we really expect for and from rule of law? I suggest that we must be more pragmatic in our approach, and more modest in our aspirations, for rule of law and its role in facilitating the implementation of human rights. In the final Section, I draw a number of more specific lessons and conclusions about each of the uses for which rule of law has been put.
I. BOLSTERING THE SHAKY FOUNDATIONS OF THE HUMAN RIGHTS MOVEMENT: CONCEPTUAL ISSUES
In the past, support for the human rights movement was relatively costless for states given doctrinal limitations in the corpus of international rights law; the relatively undeveloped state of multilateral, governmental and non-governmental institutions for monitoring human rights violations; and the weakness of enforcement mechanisms. In recent years, the human rights movement has become an increasingly powerful force capable of affecting governmental policies and actions to one degree or another in many, if not all, countries.
Not surprisingly, the international human rights regime has become the subject of more critical scrutiny as it has become more powerful. As a result, there is now a greater awareness of a number of conceptual, normative, political and practical weaknesses in the human rights framework. (22) Despite the considerable efforts of philosophers, the concept of a right remains notoriously contested and incoherent. (23) There is no accepted understanding of what a right is (24)--whether collective or group rights and nonjusticiable social, economic and cultural rights are really rights; (25) of how rights relate to duties; or whether a discourse of rights is complementary or antithetical to, or better or worse than, a discourse of needs or capabilities. (26) Nor is there an accepted ranking of the different rights that make up the list of goodies included in the ever-proliferating set of human rights instruments and customary international law. (27) Attempts to justify many of these allegedly universal rights have ended up demonstrating the lack of a firm foundation for them and have highlighted how different traditions may be at odds with some rights while justifying other rights in different ways. (28)
Acknowledging the impossibility of offering a justification of rights persuasive to all, some rights proponents have sought comfort in a pragmatic consensus on human rights issues or held out hope for the emergence of an overlapping consensus. (29) But the pragmatic or overlapping consensus quickly breaks down once one moves beyond feel-good discussions about the desirability of the broad wish-list of abstract rights contained in human rights documents to the difficult issues of the justifications for such rights and how they are to be interpreted and implemented in practice. (30)
Many human rights issues implicate deep moral commitments, including religious views, traditional gender roles, different notions of freedom and autonomy and fundamental beliefs about the relationship of the individual to the state and to other members of society. Because human rights issues raise these deep commitments, and because the international human rights movement's pretense of universalism leads to particular outcomes that may be defensible on liberal principles but are at odds with the principles and commitments of other traditions and normative systems, the human rights movement has been accused of bias, arrogance and imperialism. (31) Given differences in fundamental commitments, the human rights movement is now seen by many as the new religion, the latest crusade or a modern day inquisition, while others criticize the movement as a well-intentioned if benighted hegemony at best, or malicious strong-arm politics and cultural genocide at worst. (32)
Several of the main fault lines may be quickly summarized. (33) With Marxism and leftist critiques marginalized, (34) Islamic fundamentalism constitutes the most radical theoretical and practical challenge to the international human rights regime. (35) Despite Herculean efforts to reconcile Islam with contemporary human rights through a variety of interpretive techniques, tensions remain, (36) including: Sharia-based punishments that the international rights regime condemns as cruel and inhumane, such as cutting off the hands of thieves or stoning to death adulteresses; the status and treatment of women with respect to divorce, property rights and political participation; and most fundamentally the clash between theocracy and (liberal) democracy.
Religion more generally remains a major source of contention, in part because of the inevitable tension between the freedom to practice one's religion and the freedom of others to practice their religion or to enjoy other freedoms, and in part because of the liberal bias of the human rights movement, which has resulted in the human rights movement incorporating the conflicts and tensions over religion within liberalism. (37) These tensions are most evident in the Rawlsian attempt to exclude private religious views from the public sphere as the price for being able to generate an overlapping consensus. (38) The parallel at the international level occurs when rights bodies view with suspicion or dismiss attempts to justify particular practices based on religious reasons or by appeal to authoritative religious sources such as the Koran. (39) More generally, critics of various religious persuasions have argued for a broader-based conception of rights, not founded on secular liberalism, which builds on a more inclusive spiritual and moral worldview drawn from the world's great religions, including Buddhism, Islam and Daoism. (40)
One of the most direct threats to the movement to date came when increasingly assertive Asian governments, buoyed by years of economic growth, issued the 1993 Bangkok Declaration challenging the universalism of human rights and criticizing the international human rights movement for being Western-biased. Although it did not deny outright the universality of all rights, the Bangkok Declaration asserted that human rights must reflect the particular economic, social, political, legal and historical circumstances of particular countries at a particular time. (41) The ensuing debates over "Asian values"--or its more recent politically correct offspring "values in Asia"--raised a wide range of issues. (42) Some of the main points of contention were the compatibility of Confucianism, Buddhism and Islam with liberal democracy and human fights; the relationship between rights, responsibilities and duties; and how to weigh fights against competing interests, including other rights claims, and balance the needs of individuals against the interests of the group and society. Demonstrating the need to avoid simplistic constructs of "the West" as well as "the East" or "Asia," many of the communitarian criticisms of the liberal biases of the human rights movement and the privileging of personal freedom and autonomy over social solidarity and stability paralleled communitarian critiques in the West. (43)
Another major area of dispute centers on economic issues. The widening gap between the rich and poor both within countries and among states has produced a fault line that runs along the NorthSouth, developed-developing country axis. Emphasizing the fight to development, the Bangkok Declaration called for international cooperation to narrow the income gap and eliminate poverty, which it rightly declared to be major obstacles to the full enjoyment of human rights. (44) The Vienna Declaration was even more explicit: "The World Conference on Human Rights reaffirms that least developed countries committed to the process of democratization and economic reforms, many of which are in Africa, should be supported by the international community in order to succeed in their transition to democracy and economic development." (45) Within both developed and developing countries, (46) growing income disparities have led to a revaluation of the international rights movement's privileging of civil and political rights over economic rights and challenges to the distinction between negative and positive rights. (47) Meanwhile, the success of non-democratic and/or non-liberal Asian states highlighted the issues of whether authoritarian or democratic regimes are better able to achieve sustained economic growth and whether certain Asian versions of capitalism are superior to the varieties of capitalism found in Western liberal democracies. (48)
Still another fault line runs along gender lines. Feminists claim that international law in general and the human rights movement in particular are male-centric and discount the needs and interests of women. (49) To further complicate matters, there are also significant divisions within feminist ranks. Women's rights activists in non-Western countries have accused Western rights activists of ethnocentricism, paternalism and racism. (50) For instance, in the heavily politicized debates over female circumcision, the Association of African Women for Research and Development have complained that Western rights activists are "totally unconscious of the latent racism" in their campaign and that they have forgotten that solidarity with women of different races and different cultures can only occur if there is mutual respect. (51) Women's rights have been among the most contentious of all human rights issues, as evidenced by the number of reservations to key provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). (52) Women's rights have encountered serious difficulties in implementation for a variety of reasons. Sociological explanations emphasize that U.N. bodies and other international rights organizations are dominated by men who presumably will be less sensitive to or concerned with issues such as sexual discrimination or harassment, domestic violence or wartime rape. (53) Another explanation places the blame on the liberal distinction between the public and private spheres and the emphasis on civil and political rights over economic, social and cultural rights. While these explanations all have merit, the main obstacle is that gender issues are deeply embedded in a society's traditions and lifeforms, and thus require a holistic approach involving fundamental changes in social norms and structural changes in the economic, political and legal orders. (54)
These and other fault lines have become readily apparent as the human rights movement has gained in power and attempted to enforce increasingly specific interpretations of rights. The growing power of the international human rights movement has led to a backlash as countries have begun to feel the movement's bite. Whereas in the past, powerful Western countries raised little objection to the human rights movement as long as the movement concentrated on exporting liberal values and neo-liberal economic policies to developing countries, even powerful countries such as the United States now worry that the human rights movement is encroaching too far on state sovereignty. (55) In response, some member states, again including the United States, regularly make reservations when acceding to rights treaties that undermine key provisions or prevent the treaty from having much if any domestic impact. (56) In other cases, they simply refuse to sign or ratify important treaties. (57) Some states have taken the dramatic and unprecedented step of withdrawing from rights treaties rather than conform their policies to what they consider to be the unreasonable demands of international rights bodies out to impose one-size-fits-all solutions on countries whose contingent national circumstances render compliance impossible. (58)
Rule of law may seem to provide a bridge across the various fault lines. Islamic states from Egypt to Malaysia have endorsed rule of law. (59) Asian governments including the socialist regimes in China and Vietnam that regularly object to the strong-arm politics of the international human rights regime have welcomed technical assistance aimed at improving the legal system and implementing rule of law. (60) Communitarians and liberals alike can find much of value in rule of law. Developing states that emphasize the right to development see rule of law as integral to development. Feminists in the United States and elsewhere have taken advantage of the legal system to push for enforcement of their rights, however they are interpreted. Perhaps then there is something to be gained from focusing on the common ground provided by rule of law as a way of restoring goodwill and recapturing the forward momentum lost in recent years by the increasingly contentious debates that have split the international rights community.
Closer scrutiny reveals both good news and bad news. A thin rule of law is universally--or nearly universally (61)--valued and may be useful in protecting rights. However, a thin rule of law is consistent with considerable injustice and the abuse of human rights and allows such wide variations in institutions and outcomes that appealing to the requirements of a thin rule of law will not provide useful guidance on many important issues. On the other hand, disputes over competing thick conceptions of rule of law give rise to many of the theoretical, normative and political conflicts just discussed, and thus undermine hopes that rule of law will provide a robust normative basis for bridging substantive differences on rights issues.
A. Rule of Law to the Rescue? The Contested Nature of Rule of Law
Despite its nearly universal appeal, rule of law, like human rights, is an essentially contested concept. It means different things to different people and has served a wide variety of political agendas from Hayekian libertarianism, (62) to Rawlsian social welfare liberalism, (63) to Lee Kuan Yew's soft authoritarianism, (64) to Jiang Zemin's statist socialism, (65) to a Sharia-based Islamic state. (66) That is both its strength and its weakness. That people of vastly different political persuasions all want to take advantage of the rhetorical power of rule of law keeps it alive in public discourse, (67) but it also leads to the worry that it has become a meaningless slogan devoid of any determinative content. (68)
At its most basic, rule of law refers to a system in which law is able to impose meaningful restraints on the state and individual members of the ruling elite, as captured in the rhetorically powerful, if overly simplistic, notions of a government of laws, the supremacy of the law and equality of all before the law. Beyond these threshold requirements, conceptions of rule of law can be divided into two general types, thin and thick. A thin conception stresses the formal or instrumental aspects of rule of law--those features that any legal system must possess to function effectively as a system of laws, regardless of whether the legal system is part of a democratic or non-democratic society, capitalist or socialist, liberal or theocratic. (69) Thus, laws must be general, public, prospective, clear, consistent, capable of being followed, stable, impartially applied and enforced. (70) Moreover, laws must be reasonably acceptable to a majority of the populace or people affected (or at least the key groups affected) by the laws. (71)
That laws be reasonably acceptable to the majority of those affected by them does not mean that the laws are necessarily "good laws" in the sense of normatively justified. The majority may very well support immoral laws. Even in countries known for rule of law, rule of law has existed side by side with great injustice, including: slavery, racism, apartheid, patriarchy, colonialism, capitalist exploitation and callous disregard for the suffering of others, not to mention unspeakable cruelty to animals and environmental policies that leave future generations to clean up the mess created by today's consumers. Because a thin rule of law is consistent with great evil, many scholars and rights activists argue that rule of law requires "good laws." On this view, rule of law requires laws that are grounded in some normative foundation that transcends the legal system itself. In the past, divine law or natural law provided the foundation; today, the more secular ideology of democracy and human rights provides the foundation for many people. The attempt to remedy the normative shortcomings of thin theories by incorporating particular conceptions of rights and other features of political morality transforms thin conceptions of rule of law into thick ones.
Thick conceptions begin with the basic elements and purposes of a thin conception but then incorporate elements of political morality such as particular economic arrangements (free-market capitalism, central planning, Asian developmental state or other varieties of capitalism), forms of government (democratic, socialist, soft authoritarian, theocratic) or conceptions of human rights (libertarian, classical liberal, social welfare liberal, communitarian, compassionate conservative, "Asian values," Buddhist, Islamic, etc.). Thus, a liberal democratic version of rule of law incorporates free market capitalism (subject to qualifications that would allow various degrees of "legitimate" government regulation of the market), multiparty democracy in which citizens may choose their representatives at all levels of government and a liberal interpretation of human rights that generally gives priority to civil and political rights over economic, social, cultural and collective or group rights. Liberal democratic rule of law may be further subdivided along the main political fault lines in Europe and America: a libertarian version that emphasizes liberty and property rights, a classical liberal position, a social welfare liberal version, and so on.
The wide variety of political beliefs and conceptions of a just sociopolitical order around the world gives rise to multiple, competing thick conceptions of rule of law. In China, for example, there is currently support for four dominant models: statist socialist, neo-authoritarian, communitarian and liberal democratic. (72) Statist socialists endorse a state-centered socialist rule of law defined by, inter alia, a nondemocratic system in which the Chinese Communist Party plays a leading role and an interpretation of rights that emphasizes stability, collective rights as well as, if not over, individual rights and subsistence as the basic right rather than civil and political rights.
There is also support for various forms of rule of law that fall between the statist socialism type and the liberal democratic version. For example, there is some support for a democratic but non-liberal (New Confucian) communitarian variant built on market capitalism, perhaps with a somewhat greater degree of government intervention than in the liberal version; some genuine form of multiparty democracy in which citizens choose their representatives at all levels of government; plus an "Asian values" or communitarian interpretation of rights that attaches relatively greater weight to the interests of the majority and collective rights as opposed to the civil and political rights of individuals. (73)
Another variant is a neo-authoritarian or soft authoritarian form of rule of law that, like the communitarian version, rejects a liberal interpretation of rights but, unlike its communitarian cousin, also rejects democracy. Whereas communitarians adopt a genuine multiparty democracy in which citizens choose their representatives at all levels of government, neo-authoritarians permit democracy only at lower levels of government or not at all. For instance, one prominent PRC political scientist has advocated a "consultative rule of law" that eschews democracy in favor of single-party rule, albeit with a redefined role for the Party and more extensive, but still limited, freedoms of speech, press, assembly and association. (74)
There is also support in India, Thailand, Indonesia and the Philippines for what might be called a developmental, redistributive justice model of rule of law. This form, with different variants in each of the countries, emerges out of a fundamental difference between these countries and economically advanced countries: the brutal reality of crushing poverty combined with severe disparities in income. (75) Observing that nearly sixty percent of the nation's material resources are in the hands of some twenty percent of the population in Thailand, Vitit Muntarbhorn warns that this lack of equity "has dire consequences for the Rule of Law and human rights, precisely because the inequity may breed violence, if not disrespect for the law." He asks, somewhat plaintively, "How can the Rule of Law help to foster equity and social justice?" (76)
Substantively, the developmental-redistributive model of rule of law has two main planks. The first is an international dimension that highlights the radical disparity between North and South and emphasizes the right of development, debt forgiveness and the obligation of the North/developed countries to aid the South/developing countries. The second plank is a domestic one and reflects the particular circumstances of each state, though all are united in emphasizing social and economic rights and the need to do more to protect the most vulnerable members in society.
In Thailand, concerns for redistributive social justice are found in the government's policies to achieve sustainable development, including rural development. Thus, the government has adopted a series of populist policies, including a universal health care scheme, a development fund for each village and debt moratorium for farmers. (77) In the Philippines, one catches glimpses of the alternative redistributive conception in the way rule of law is frequently linked to social and political philosophies that promise justice, social welfare and People Power based democracy. Whereas Western countries on the whole have been reluctant to assume obligations to allocate sufficient resources to satisfy economic, social and cultural rights, (78) the 1987 Filipino constitution contained a long list of open-ended "directive principles" that reflect the tendency of the activist drafters of the constitution to codify "new" rights to education, food, environment and health. (79)
As in the Philippines, the Indian constitution codifies both civil and political rights and social and economic rights. However, whereas the former are considered fundamental and justiciable, the latter are considered progressive. Nevertheless, aggressively activist Indian courts have favored interpretations that foster social and economic rights, giving them an "indirect justiciability." (80) The Indian constitution also seeks to redress historical imbalances that have led to the subjugation of some groups, and it reaches beyond the state to private groups and social practices. It thus outlaws in the name of equality caste-based practices of untouchability. A system of reservations or quotas ensures some representation for disadvantaged groups including the poor. In addition, the constitution enshrines a policy of affirmative action that creates a two-track system obligating the state "to specifically reform the 'dominant'/'majoritarian' 'Hindu' religious traditions in a fast forward mode, while leaving the reform of 'minority' communitarian/religious traditions to slow motion, minuscule change." (81) To ensure that these polices are implemented, the constitution creates a number of federal agencies to protect and promote the rights of disadvantaged minorities.
Rights activists generally prefer thick conceptions of rule of law to thin ones. In authoritarian and repressive regimes, thick theories allow reformers to discuss certain controversial political issues under the seemingly more neutral guise of a technical discussion of rule of law. For instance, in China, legal reformers have used a broad conception of rule of law as a means of discussing democracy, separation of powers and various human rights issues from free speech to arbitrary detention. (82) More generally, rights activists prefer thick theories because they provide rhetorical support for their particular political agenda.
The unfortunate result, however, is that all too often parties appeal to rule of law, implicitly if not explicitly invoking a particular thick conception of rule of law, to criticize whatever law, practice or outcome does not coincide with their own political or normative beliefs. For example, in Singapore, where the legal system is regularly ranked as one of the world's best in terms of rule of law, (83) liberal critics of the government's communitarian policies have invoked rule of law to object to the lack of (in their view) adequate workers' rights legislation, limitations on the right of peaceful demonstration and a regulatory framework that restricts the freedom of the local press. (84)
Contrast such complaints with the following. Two government agencies issue conflicting regulations, and there is no effective legal mechanism to sort out the conflict. A suspect is entitled to a lawyer according to law, but in practice the authorities refuse to allow him to contact his lawyer. Your dispute with your insurance company regarding payment for hospital bills incurred as a result of a car accident remains pending in court after seven years due to judicial inefficiency. The rich and powerful are regularly exempted from prosecution of certain laws whereas others are prosecuted in similar circumstances.
The second set of issues invokes thin rule of law concerns. In contrast, the first set involves substantive issues that divide adherents of competing political philosophies and define different political factions. Articulating different thick conceptions makes it possible to relate political and economic problems to law, legal institutions and particular conceptions of a legal system. Moreover, by highlighting differences in viewpoints across a range of issues, thick theories bring out more clearly what is really at stake in many disputes. However, using a particular thick conception of rule of law to malign others who do not share one's political philosophy, and hence one's thick conception of rule of law, leads to the debasement of rule of law and the view that it is just a meaningless slogan devoid of content. (85)
Proponents of thin theories protest that thick theories are based on more comprehensive social and political philosophies, and thus rule of law loses its distinctiveness and gets swallowed up in the larger normative merits or demerits of the particular social and political philosophy. As Joseph Raz observes,
If rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy. But if so the term lacks any useful function. We have no need to be converted to the rule of law just in order to believe that good should triumph. A non-democratic legal system, based on the denial of human rights, of extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies. (86)
Limiting the concept of rule of law to the requirements of a thin theory makes it possible to avoid getting mired in never-ending debates about the superiority of the various political theories all contending for the throne of justice. Conversely, by incorporating particular conceptions of the economy, political order or human rights into rule of law, thick conceptions decrease the likelihood that an overlapping consensus will emerge as to its meaning. Thick conceptions that require laws be good laws must specify what the good is. However, given the fact of pluralism, (87) thick conceptions must confront the issue of whose good and whose justice. Liberals, socialists, communitarians, neo-authoritarians, soft authoritarians, new conservatives, old conservatives, buddhists, Daoists, Neo-Confucians, new Confucians and Muslims all differ in their visions of the good life and on what is considered just, and hence what rule of law requires. These categories are themselves exceedingly broad. There is considerable diversity on many issues within each one.
In short, appealing to thick conceptions of rule of law that draw on particular conceptions of the economy, political order, gender roles, social justice and human rights brings the disputes that divide the human rights community under the umbrella of rule of law. Predictably enough, non-liberals have accused proponents of a liberal democratic conception of rule of law of the same kind of ethnocentricism, arrogance and imperialism that they see in the human rights movement. (88) The tendency to equate rule of law with liberal democratic rule of law has led some commentators to portray the attempts of Western governments and international organizations such as the World Bank and IMF to promote rule of law countries as a form of economic, cultural, political and legal hegemony. (89) Critics claim that liberal democratic rule of law is excessively individualist in its orientation and privileges individual autonomy and rights over duties and obligations to others, the interests of society, social solidarity and harmony. (90) In Asia, this line of criticism tracks the heavily politicized debates about "Asian values," and whether democratic or authoritarian regimes are more likely to ensure social stability and economic growth discussed earlier. It also taps into broader post-colonial discourses and conflicts between developed and developing states, and within developing states between the haves and have-nots over issues of distributive justice. (91) In Islamic countries, the debate takes the form of disputes over the role of religion, Sharia law, the rights of women and a host of other specific rights issues.
B. The Inability of Rule of Law to Provide Effective Guidance on Specific Issues
For all of its rhetorical appeal, rule of law, whether thick or thin, cannot provide much guidance with respect to many crucial issues that affect human rights. Appeals to rule of law alone will not shed much light on such substantive issues as what is a proper time, place and manner restriction on free speech, when a particular restriction of freedom of assembly is necessary for democratic order, or whether the 9/11 attacks on the United States constituted a threat to "the life of the nation" under Article 4 of the ICCPR. (92)
The minimal requirements of a thin rule of law are compatible with considerable diversity in institutions, rules and practices. For example, the way powers are distributed and balanced between the executive, legislature and judiciary varies widely in countries known for rule of law. (93) Constitutional review is conducted by a variety of entities that enjoy different powers. (94) The nature and degree of judicial independence, as well as the manner in which it is achieved, also vary. In some cases judges are appointed (through a variety of mechanisms), and in some cases they are elected. Nor will appeals to rule of law alone put an end to debates about what type of theory of adjudication is best--strict interpretation, purposive or Dworkin's make-law-the-best-it-can-be approach. (95)
Institutional choices are often highly path-dependent: the initial choice of institutions and the way they operate and evolve over time is influenced to a large extent by a host of contingent, context-specific factors. Seemingly similar institutions, sometimes transplanted from one system to another, are likely to function differently from place to place. Thus, to assess the appropriateness and effectiveness of institutions requires an evaluation of their results in the particular context. For instance, all states preclude some political and administrative acts from judicial review. Such decisions often include certain decisions by police regarding whom to arrest and by prosecutors regarding whom to prosecute; decisions regarding national defense, war and covert operations; and some highly technical issues left to administrative agencies. Rule of law therefore cannot require that every decision be subject to judicial review or else no country's legal system would merit the rule of law label. Nevertheless, rule of law does require some limits on discretion and, arguably, the ability to challenge most government decisions in some way, whether through judicial review, internal administrative mechanisms or the electoral process whereby citizens can vote governments that misuse their power out of office. But exactly what is required is far from clear.
Singapore, for instance, has a number of laws that allow for the restriction of individual liberties without judicial review. The Maintenance of Religious Harmony Act "allows the minister to issue preemptive 'restraining orders' to 'gag' politicians or religionists thought to be mixing a volatile cocktail of religion and extremist politics, which could escalate racial-religious tensions." (96) The government argues that given the sensitive nature of religion in multiethnic Singapore, issues involving religious harmony are crucial for the survival of the nation, and better left to the executive than to the judiciary or the legislature. The executive's decision is subject to review by the Elected President, and advisory councils composed of bureaucrats or religious and civic leaders are sometimes consulted to further diminish the dangers of a concentration of unchecked powers in the executive's hands. Nevertheless, liberal critics contend such justifications and mechanisms are inadequate and call for a more robust judicial review that places more emphasis on the rights of individuals to speak and to practice their religion freely. (97)
Cases involving the declaration of national emergency and derogation of rights raise equally difficult issues. While the danger of abuse of power is apparent, advocates of different thick conceptions are likely to disagree over when national emergencies should be declared, who has the fight to declare them and what type of review, if any, there should be. In Malaysia, the King, the titular head of the executive, acts on the advice of the Cabinet in deciding whether a state of emergency exists. (98) Parliament, not the judiciary, has the power to review the decision and overturn it. In the United States, the President has claimed broad powers for the executive in deciding how best to deal with terrorists and enemy noncombatants, much to the dismay of Civil Libertarians who want a greater role for the legislature and the courts in checking and reviewing executive decision-making powers. (99)
Appealing to rule of law will not suffice to sort out these issues. Both sides can appeal to their own particular thick conceptions, and a thin conception does not require that all important decisions be left ultimately to the courts or that the court adopts a particular interpretive practice. In any event, concluding that a practice or decision is consistent or inconsistent with a thin rule of law or a particular thick conception of rule of law is not the end of normative debate. Rule of law is only one of many social values and only part of a comprehensive political philosophy. Thus, in some cases the values served by compliance with rule of law may be overridden by other important social values. This is most notable in recent discussions that the rule of law does not pertain to emergency situations. (100) However, it arises in many other contexts involving resistance to narrowly legal but massively unjust laws and regimes. As the heroic struggles of Muhammad Ali, Martin Luther King, Mahatma Gandhi, Nelson Mandela and countless less famous individuals show, the rule of law virtues of predictability and certainty may at times need to give way to higher moral principles, considerations of equity, justified civil disobedience or even mass illegalities and populist movements that seek to overthrow the political system.
Ritualistic invocation of rule of law, then, will not put an end to the conceptual and normative debates that have undermined the universality of the human rights movement. Notwithstanding debates over these deep issues, perhaps rule of law may still be useful in practice. Therefore, we must still consider the extent to which the renewed attention to rule of law will help address the current serious shortcomings with respect to implementation of human rights.
II. THE IMPLEMENTATION OF HUMAN RIGHTS AND THE PRACTICAL LIMITATIONS OF RULE OF LAW: EMPIRICAL ISSUES
Quantitative studies have shown that the protection of rights is influenced by, among other things, and in roughly descending order of importance: economic development, with a higher level of development associated with better protection of rights; international or civil wars, with war leading to more violations of rights; political regime type, with democracies protecting rights better than authoritarian or military regimes; regional effects, with Northern Europe and North America outperforming other regions, and with "region" often serving as a proxy for religion and culture and correlated with economic development and regime type; population size, with larger populations leading to higher rates of violation; and colonial history, with British colonialism linked to better rights protection. (101) Interestingly, ratification of treaties does not translate into better protection for human rights, and may even have a negative effect, at least in the short term. (102)
Only recently have empirical studies begun to test the relationship between "rule of law" or other legal system features and the protection of different types of rights. (103) The neglect of law may reflect the skeptical view that human rights law in particular and international law more generally are mere window dressings. However, as the human rights movement has become more powerful, scholars have become more interested in testing the impact of law. The few studies available provide some limited general support for the thesis that rule of law and judicial independence help protect human rights. (104)
However, the studies raise a number of concerns regarding the definition and measurement of rule of law, (105) the range of rights tested, the ability to control for other factors and sort out direct and indirect effects and the usefulness in identifying specific features of the legal system that are most important for rights protection.
What appears to be the only study to date to test directly the relationship between "rule of law" and rights relied on a rule of law index that drew on subjective perceptions of the legal system. (106) The index is constructed from sixteen different sources that measure a variety of factors: trust in, and the legitimacy of, the legal system; crime, including violent crime, kidnapping of foreigners, organized crime, financial crime, money laundering and insider trading; property rights, including the enforceability of government contracts and private contracts, the enforceability of judgments and the protection of intellectual property rights; institutional factors such as the independence of the judiciary (influence of government, citizens and firms on the courts) and an effective administrative law regime whereby parties can challenge government decisions; and the quality of the legal system, including the fairness, speediness and affordability of the judicial process, the honesty of judges and the quality of the police.
Relying on subjective responses to questionnaires by different people in different countries gives rise to concerns about consistency and ideological bias. (107) A more fundamental issue is whether the criteria that form the subject matter of the various surveys adequately capture rule of law. (108) On the whole, the indicators in the World Bank index reflect many of the procedural and institutional aspects of a thin rule of law. To be sure, perceptions about property rights, including intellectual property rights, or the independence of the courts may be influenced by one's ideological beliefs and may be tied to political and economic beliefs that form the basis for thick conceptions of rule of law. However, the index for the most part avoids the circularity problems that would arise if one incorporated into the index democracy and particular interpretations of contested economic, political or rights issues that define thick conceptions of rule of law.
One major disadvantage with such a broad index, however, is that it obscures which legal system features are related to better human rights performance. The utility of such aggregate rule of law studies for policymakers is therefore limited because the studies do not shed light on the particular institutional arrangements, laws or legal practices that are necessary or beneficial for the protection of human rights.
Some studies have tried to focus on more specific issues such as particular constitutional provisions or institutions, with mixed results. (109) One study relying on data from just thirty-nine countries from 1948-1982 found that the constitutional guarantee of freedom of the press and provisions regarding a state of emergency were associated with less censorship and fewer restrictions on civil and political rights, while a constitutional restriction on free press produced the opposite result. (110) However, a larger study found that constitutional guarantees of speech, assembly, association, religion and the press, as well as of the right to strike, were not associated with better protection of personal integrity rights, although a constitutional protection of freedom of the press was associated with fewer violations during times of civil war. Surprisingly, a ban on torture and the provision of a habeas corpus right were statistically significant but associated with more violations. In contrast, provisions for public and fair trials were statistically significant and associated with fewer violations. (111) However, public and fair trials were not nearly as important as the impact of a large population, domestic and international war or democracy.
A third study sheds some light on these apparent inconsistencies by distinguishing between levels of threat. The study found that at low political threat levels, constitutional provisions regulating the declaration of a state of emergency and derogation of civil and political rights had no effect. However, at mid to high levels, such provisions may actually be harmful because they provide the regime with a legitimate basis for declaring an emergency and derogating from rights. On the other hand, such prohibitions are likely to lead to fewer violations during extreme cases of civil war. (112)
Still another study adopted a more institutional approach, testing the effects of codification of a right in the constitution, judicial independence, federalism, separation of powers and the relative number of lawyers on the protection of political rights and the right against search and seizure. (113) The study found that judicial independence is significant with respect to the protection of political rights and search and seizure even after controlling for wealth and other factors. The number of lawyers was significantly associated with greater protection of political rights, though not significant with respect to protection against search and seizure. However, federalism, separation of powers and constitutional provisions on search and seizure were not significant.
While the attempt to disaggregate rule of law to test which elements are most important in what circumstances to the protection of which rights is a worthwhile endeavor, the approach is likely to produce weak and inconsistent results because of the wide variation among countries on key legal institutions and practices such as separation of powers, constitutional review, judicial review of executive power, judicial independence, the way judges are appointed, the tenure and qualifications of judges and SO on. (114) A cursory glance around the globe is sufficient to demonstrate that countries known for rule of law differ dramatically in each of these areas and that what works in one place may not work in another.
Another problem with most of the legal system studies so far is that they have focused on physical integrity rights or relatively easy to monitor rights such as search and seizure. However, the relationship between rule of law and other "rights" is likely to be more difficult to measure and to explain. Cultural rights such as the right of minority groups to use their own language or affirmative action policies for members of particular groups are difficult to quantify. The theoretical link between rule of law and such rights is also murky. For example, whether a country should set aside a quota of commercial contracts or seats in parliament for a particular minority group is heavily dependent on the particular circumstances of the country. (115) Appeal to thin rule of law principles will rarely if ever be determinative.
Economic and social rights are generally not justiciable or are only partially justiciable in most countries. To be sure, governments might provide a variety of welfare benefits, including food and shelter, medical care and access to education. But citizens generally do not have the right to sue the government for such benefits in court. (116) It is possible that an equity-minded judiciary might help alleviate extreme poverty and promote social justice by overturning unjust laws that favor the rich or that impose undue hardships on the poor. Thin rule of law principles, however, would require in most cases that judges apply the laws passed by the legislature and set out in the constitution, even if the judges themselves believe the laws are inequitable. Arguments about how activist the judiciary should be and the proper method and principles of constitutional interpretation cannot be settled by appealing to the requirements of a thin rule of law alone and will turn in part on one's belief about judicial competence. For instance, attempts by activist judiciaries to address social inequities by interpreting economic rights provisions broadly have led to complaints that rule of law is being undermined in India and the Philippines. While such disputes also occur in the context of interpreting broad clauses regarding civil and political rights, they often give rise to additional concerns about judicial competence in that they involve resource allocation decisions arguably best left to the legislative and executive branches. (117)
Quantitative studies have yet to make much headway in the complicated task of sorting out the direct and indirect effects of rule of law. Rule of law and economic development are closely related, (118) as are economic development and human rights performance. (119) Indeed, as the following tables graphically depict, wealth is highly correlated with social and economic rights (r=.92); (120) women's rights, as measured by the Gender Developmental Index (r=.93); (121) good governance indicators, such as government effectiveness (r=.77); (122) rule of law (r=.82); control of corruption (r=.76); (123) civil and political rights (r=.62); (124) and even physical integrity rights, though to a lower degree (r= -.40). As countries become wealthier, they generally protect all rights better. Thus, to compare the performance of a high income country such as the United States to a lower middle income country such as China or a low income country such as Sudan makes about as much sense as comparing a piano to a duck.
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The high correlation between wealth and rule of law, and between wealth and virtually every type of right and indicator of well-being, suggests that wealth rather than rule of law is the more important factor in rights performance. While this has yet to be demonstrated statistically, it makes intuitive sense in that it is much easier to come up with plausible explanations of how wealth leads to better rights performance than it is to explain how rule of law leads to better rights protection, particularly for non-justiciable social and economic rights. Wealthier countries can afford better medical care, better education and better sanitation systems. Affluence reduces the intensity of distributional conflicts by increasing the resources available for redistribution and decreasing the number of people at or below the poverty line. Development increases the ranks of middle class who seek to protect their growing property rights through political channels, including the electoral process, thus leading to stronger civil and political rights. Citizens of rich states are less likely to take to the streets to protest government policies, thus decreasing the threats to governments that result in physical integrity violations or curtailments of civil and political liberties.
However, even assuming wealth is the more important factor in explaining rights performance, rule of law may have some independent direct positive impact as well. (126) Moreover, because rule of law appears necessary, though not sufficient, for sustainable growth, efforts should also be made to promote rule of law as an indirect way of improving rights protection.
To be sure, wealth is not the only factor that affects rights performance or even the most determinative factor for all rights in all cases. The relationship between personal integrity rights and GDP is weaker than for other rights because of continued police violence and other acts classified as torture even in rich countries. It is also weaker because rich countries also react to war, terrorism and political stability by limiting civil and political rights and detaining and interrogating suspects in ways that are considered arbitrary detention or torture under international human rights standards (or at least may be so perceived by survey respondents). Moreover, some countries exceed expectations relative to their income level while others fall far short. (127) Distribution of wealth also matters: some countries are more egalitarian than others, with serious consequences especially for the most vulnerable in society. (128) There is also some regional variation, particularly on voice and accountability, reflecting different political regimes and value structures and, in physical integrity rights, reflecting more wars and political instability in some regions. (129) The rights performance of reasonably wealthy countries may deteriorate rapidly because of war, economic stagnation, natural disasters or problems like HIV/ AIDS.
Even bearing in mind such qualifications, while money may not be able to buy happiness, it does generally seem to buy a longer life, better education, more health care, better governance, more gender equality and even more civil and political rights.
III. RULE OF LAW, ECONOMIC GROWTH AND HUMAN RIGHTS: THE LIMITS OF ALTRUISM AND OTHER OBSTACLES
One of the main motivating forces behind the turn toward rule of law has been the belief that legal reforms are necessary for economic development. A 1997 World Bank report, for instance, claimed that "countries with stable government, predictable methods of changing laws, secure property rights, and a strong judiciary saw higher investment and growth than countries lacking these institutions." (130)
Notwithstanding theoretical arguments for and against the claim that rule of law contributes to economic development, (131) the empirical evidence is surprisingly consistent and supportive of the claim that implementation of rule of law is necessary, though by no means sufficient, for sustained economic development. A number of long-term, multiple-country empirical studies have shown rule of law to be positively correlated with growth. Robert Barro analyzed data from eighty-five countries for the periods 1965-1975, 1975-1985 and 1985-1990. (132) He tested the impact of a number of independent variables, including rule of law. (133) His rule of law index was based on International Country Risk Guide (ICRG) survey data compiled from the subjective responses of businesspersons regarding law and order. The law subcomponent assesses the strength and impartiality of the legal system, and the order subcomponent assesses the popular observance of law. Higher scores indicate sound political institutions, a strong court system and provisions for an orderly succession of power. Lower scores indicate a tradition of dependence on physical force or illegal means to settle claims. Barro's regression analysis found that an improvement in one rank in the zero to six rule of law index raised growth rates by 0.5%. (134)
A recent study found that while democracy and rule of law are both related to higher GDP levels, the impact of rule of law is much stronger. (135) The study also found that trade openness was good for rule of law but had a negative impact on income levels and democracy. Conversely, income levels had a small positive impact on openness, while democracy and rule of law had a negligible impact on openness. (136)
Other studies have found that clear and enforceable property rights are positively correlated with growth. (137) Knack and Keefer relied on both the ICRG and the Business Environmental Risk Intelligence (BERI) surveys. The BERI survey does not directly ask about rule of law but includes questions about contract enforceability, the likelihood of nationalization, infrastructure and bureaucratic delays. Knack and Keefer conclude that institutions that protect property rights are crucial to economic growth and investment and the effect of such institutions continues to exist even after controlling for investment.
In a somewhat broader study, Clague, Knack, Keefer and Olson tested growth rates against the BERI standards, the contract-intensive money ratio (CIM), which is the ratio of non-currency money to total money supply, (138) and the aggregate ICRG index, which is a composite of the indexes for the quality of the bureaucracy, corruption in government, rule of law, expropriation risk and the risk of government repudiation of contracts. Higher ICRG, CIM and BERI scores were associated with higher annual per capita growth rates, even in less developed countries. (139)
Another study based on the ICRG showed that rule of law is an important factor in determining the size of capital markets (both debt and equity) and that improvements in rule of law are associated with more domestically listed firms and initial public offerings per capita, a greater ratio of private sector debt to GNP and a higher amount of outsider participation in a country's capital markets. (140) In a similar vein, Ross Levine found that countries that give a high priority to creditors receiving the full present value of their claims in bankruptcy or corporate reorganizations and in which the legal system effectively enforces contracts generally have more developed financial intermediaries and higher growth rates. (141) Moving a country from the lowest quartile of countries with respect to the legal protection of creditors to the next quartile translates into a twenty-nine percent rise in financial development, which increases growth by almost one percentage point a year.
Still another study of seventy countries found that the …