Varieties of Rule of Law: An Introduction and Provisional Conclusion

Abstract

Rule of law is one of the pillars of modernity, and widely considered necessary for sustained economic development, the implementation of democracy and the protection of human rights. Spurred on by the World Bank and the IMF, countries have begun to focus on rule of law and good governance and the institutional reforms required to bring them about. At the same time, critics in Asia and the West note that rule of law is closely associated with Western liberal democracy and wonder whether rule of law will take root given the different cultural, economic and political context. China and Vietnam reject democracy, while Singapore and Malaysia arguably remain soft authoritarian states despite democratic trappings. South Korea, Taiwan, the Philippines, Thailand and Indonesia have become democratic or are in the process of democratizing, but democracy remains weak and has yet to be consolidated in several of them. Despite widespread support for aspects of the Washington consensus that economic development requires the legal foundations of capitalism and a regulatory framework sufficient to attract FDI, some critics argue some countries have been able to obtain sustain economic growth without rule of law. Other commentators portray the attempts of Western governments and international organizations to promote rule of law in countries as a form of cultural, political, economic and legal hegemony. Some 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, and social solidarity and harmony. This line of criticism taps into recent, often heavily politicized, debates about Asian values, and whether democratic or authoritarian regimes are more likely to ensure social stability and economic growth. It also taps into 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. In several countries, arguably in all countries, it has resulted in an attempt to inject local values into a legal system established by foreign powers during colonial occupation or largely based on foreign transplants. In striking contrast to the many volumes on rule of law in the Western literature, relatively little work has been done on clarifying alternative conceptions of rule of law in other parts of the world, including Asia. This chapter is the introduction to Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Countries, France and the U.S. (RoutledgeCurzon, 2003). What emerges is a rich portrait of diverse conceptions of rule of law both across the region and within individual countries, from liberal views to authoritarian views, from top-down statist views to the bottom-up perspectives of oppressed individuals seeking to harness the power of rule of law to redress individual instances of injustice and the broad-ranging systemic problems that empower a few at the expense of the many. The chapter explores how rule of law has been constructed, deconstructed and reconstructed in twelve countries, the U.S. and France. It also takes up the relationship between rule of law and democracy, and what the experiences of these countries tell us about the factors that facilitate or hinder the establishment and implementation of rule of law.