Schor on the Rule of Law
Miguel Schor (Suffolk University Law School) has posted The Rule of Law on SSRN. Here is the abstract:
- This essay explores the problem of establishing the rule of law in new democracies. Many of the new democracies in the world have regular elections yet lack the rule of law. Most scholars believe that these new democracies must adopt the “best practices” of Western democracies by reforming judicial systems and strengthening constitutional judicial review. This argument rests on the view that many new democracies lack the rule of law because political actors have the power to trump the legal system and that what is needed is a strengthening of judicial independence.
The essay argues that this view is incomplete because it fails to take into account the problems that new democracies have in implementing the rule of law. These polities enjoy the “un-rule of law” rather than the rule of law. The un-rule of law is not an aberration but a logical response to the problem of development. For a poor nation faced with a myriad of social and economic difficulties, the logical response is to give nearly all power to one individual to deal with those problems. There is considerable political support for this concentration of power which is precisely why rule of law reforms often fail.
The key to effectuating the rule of law lies not in adopting rules borrowed from developed democracies but in crafting a constituency for a legal system. Courts are the least dangerous branch. They lack power unless other actors are willing to implement judicial decisions. The reason why there is no rule of law in the developing world is that there is little political support for the judicial system. Courts are marginal to the politics of developing nations. Developed nations, on the other hand, have effective mechanisms in place for implementing judicial decisions and political and economic actors, therefore, can use the courts to achieve their aims.
In short, establishing the rule of law requires constructing an effective transmission belt from judicial decisions to society. The view of most scholars that the developing world needs to separate law from politics fails to comprehend the processes by which the rule of law becomes effectuated. The rule of law does not rest on the negation of politics but on crafting the proper linkages between courts and the citizenry.