Transitional Societies and the Rule of Law: A Benchmarks Approach

Abstract

This paper seeks to introduce a new approach to rule of law promotion efforts in transitional societies, notably by revisiting the very notion of rule of law. The rule of law in this paper is viewed not as a battery of formal qualities that legal rules should always observe (formal conception), nor as a list of substantive values which they should at all times espouse (substantive conception). The rule of law is rather conceived of in reference to a tridimensional conception of legal validity comprising the three qualities of formal validity (or legality), effectiveness and legitimacy. The achievement of validity for legal rules is therefore understood as the cornerstone of a rule-of-law abiding legal system, and thus we argue that the rule of law can only be achieved when the social order is governed by valid legal rules. We therefore define the rule of law as the characteristic of a social order in which the relations of society members are governed by formally valid, effective and legitimate law. According to this conception, the rule of law is to be operationalized through an ongoing dialectical effort by society members within the legal system, seeking to dynamically connect legal rules with the values and aspirations running through the social order as a whole. We recommend that rule of law promotion programs in transitional societies inspire themselves from this renewed conception of the rule of law. This would arguably permit to avoid criticism associated with the purely technical approach of formal conceptions of rule of law promotion, as well as with the ideologically loaded approach of substantive conceptions of rule of law promotion.