PROMOTING THE RULE OF LAW: A BENCHMARKS APPROACH …

Working Paper No. 105 ? April 2013

PROMOTING THE RULE OF LAW: A BENCHMARKS APPROACH

Nicolas Hachez Jan Wouters

PROMOTING THE RULE OF LAW: A BENCHMARKS APPROACH

Nicolas Hachez Jan Wouters

ABSTRACT This paper seeks to reaffirm the ideal character of the rule of law as a guiding principle for organizing life in society. After a review of the various conceptions under which the notion of rule of law is known and applied, and after acknowledging that uncertainties as to the nature of the rule of law weaken rule of law promotion efforts, the authors suggest a new articulation of the concept of rule of law and a new approach to its promotion. The new articulation is based on the links that the authors uncover between the rule of law and legal validity conditions at play in a legal system. It is argued that the rule of law ideal is best pursued by legal systems which adopt a multidimensional conception of legal validity. The various dimensions of legal validity relate to the various ways in which a legal system should ideally connect to the social order it claims to govern: cognitively (dimension of legality), empirically (dimension of effectiveness) and axiologically (dimension of legitimacy). The authors then flesh out the conditions that need to be realized in political processes in order for legal systems to constantly strive toward those three dimensions. The paper concludes by propounding a `benchmarks approach' for realistically and fruitfully promoting the rule of law.

KEY WORDS Rule of law ? United Nations Rule of Law Unit ? Legal validity ? Legality ? Effectiveness ? Legitimacy ? Jurisgenerative politics

AUTHORS Nicolas Hachez is Research Fellow and Project Manager, Institute for International Law and Leuven Centre for Global Governance Studies, University of Leuven. Jan Wouters is Jean Monnet Chair ad personam EU and Global Governance, Full Professor of International Law and International Organizations and Director of the Leuven Centre for Global Governance Studies and the Institute for International Law, University of Leuven.

ADDRESS FOR CORRESPONDENCE Nicolas.Hachez@ggs.kuleuven.be Jan.Wouters@ggs.kuleuven.be

NOTE FROM THE AUTHORS This paper significantly revises and expands the central thesis of Leuven Centre for Global Governance Studies Working Paper No. 47 by the same authors

? 2013 by Nicolas Hachez and Jan Wouters. All rights reserved. No portion of this paper may be reproduced without permission of the authors.

Working papers are research materials circulated by their authors for purposes of information and critical discussion. They have not necessarily undergone formal peer review.

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CONTENTS

1. INTRODUCTION

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2. RECONCEPTUALIZING THE RULE OF LAW AS A WORKABLE IDEAL

6

2.1 THE TERMS OF THE DEBATE : NEGATIVE VS.POSITIVE, THIN VS.THICK AND 6

FORMAL VS. SUBSTANTIVE CONCEPTIONS

2.2 THE RULE OF `VALID' LAW

11

2.3 LEGAL VALIDITY AS CONNECTEDNESS

14

2.3.1 A RULE OF LAW-ORIENTED CRITIQUE OF POSITIVIST AND 14

JUSNATURALIST THEORIES OF VALIDITY

2.3.2 VALIDITY AS THE TRIPLE CONNECTION OF THE LEGAL SYSTEM WITH THE 16

SOCIAL ORDER

2.3.3 VALIDITY AS CONNECTEDNESS AND ITS CONSEQUENCES : THE RULE OF 20

LAW AS AN EVALUATIVE NOTION

2.4 THE RULE OF LAW AS A DIALECTICAL IDEAL

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3. CONCLUSION : A BENCHMARKS APPROACH TO THE RULE OF LAW

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PROMOTING THE RULE OF LAW: A BENCHMARKS APPROACH

Nicolas Hachez Jan Wouters

1. INTRODUCTION

Although the rule of law is all but a new concept, since the beginning of the 1990s it seems to be enjoying a second youth.1 Over the last two decades, the rule of law has become a totem for those who criticize malfunctioning states and legal systems and lament ensuing chaotic social orders. Likewise, it is a beacon for those who promote better-functioning legal systems for improving the relations between the members of a social order. The ideal has consequently been appropriated by numerous institutions involved in the design and evaluation of legal systems. For example, promoting the rule of law has become a leitmotiv in peace building and transitional justice programmes, but also in development cooperation. The rule of law is for instance designated as a foundational principle of the European Union (`EU'),2 and as priority objective of its external relations.3 The United Nations (`UN') has recently, at the highest level, reaffirmed its `commitment to the rule of law and its fundamental importance for political dialogue and cooperation among all States and for the further development of the three main pillars upon which the United Nations is built: international peace and security, human rights and development.'4 Especially over the last decade, the UN has increasingly focused its attention on the rule of law, as is shown by the large number of resolutions and reports produced or endorsed by UN organs on this matter.5 In order to better coordinate its efforts in this area, the UN has set up a `Rule of Law Coordination and Resource Group' and a `Rule of Law

1 Thomas Carothers, `The Rule of Law Revival', 77 Foreign Affairs 69 (1998). 2 See Preamble and Article 2 of the Treaty on the European Union (`TEU'). 3 See Article 21(1), first para., TEU. 4 See UN General Assembly, `Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at National and International Level', Resolution No. 67/1, UN Doc. A/Res/67/1, 24 September 2012. 5 See, e.g., UN Security Council, `The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies ? Report of the Secretary-General', 23 August 2004, UN Doc. No. S/2004/616; UN General Assembly, `In Larger Freedom: Towards Development, Security and Human Rights for All ? Report of the Secretary-General', 21 March 2005, UN Doc. No. A/59/2005; UN General Assembly, `2005 World Summit Outcome', Resolution of 24 October 2005, UN.Doc. 1/RES/60/1, paras. 119 ff.; UN General Assembly, `Uniting Our Strengths: Enhancing United Nations Support for the Rule of Law', 14 December 2006, UN Doc. No. A/61/636; UN General Assembly, `Strengthening and Coordinating United Nations Rule of Law Activities ? Report of the Secretary-General', 6 August 2008, UN Doc. No. A/63/226; the Secretary General's yearly `Annual Reports on Strengthening and Coordinating United Nations Rule of Law Activities', published since 2008, UN Docs. No. A/63/226, A/64/298, A/65/318, A/66/133, A/67/290; Rule of Law Coordination and Resource Group, `Joint Strategic Plan 2009-2011', February 2009, available at ; Office of the UN High Commissioner for Human Rights, `Rule of Law Tools for Post-Conflict States': Truth commissions (2006, UN Doc. No. HR/PUB/06/1); Mapping the justice sector (2006, UN Doc. No. HR/PUB/06/2); Monitoring legal systems (2006, UN Doc. No. HR/PUB/06/3); Prosecution initiatives (2006, UN Doc. No. HR/PUB/06/4); Vetting: an operational framework (2006, UN Doc. No. HR/PUB/06/5); Reparations programmes (2008, UN Doc. No. HR/PUB/08/1); The legacy of hybrid courts (2008, UN Doc. No. HR/PUB/08/2); Rule-of-law Tools for Post-conflict States: Amnesties (2009, UN Doc. No. HR/PUB/09/1); Rule-of-law Tools for Post-conflict States: National Consultations on Transitional Justice (2009, UN Doc. No. HR/PUB/09/2). For a full database of UN Rule of Law-relevant documents (notably the numerous General Assembly and Security Council Resolutions, see the United Nations Rule of Law Document Repository, available at .

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Unit.'6 The private sector, most notably the countless NGOs active in post-conflict reconstruction and development assistance, has been focusing on the promotion of the rule of law as well.7 Academic institutions and think-tanks increasingly make the rule of law a full-fledged subject of study.8

The centrality of the rule of law in the critique and promotion of legal systems reflects its status as an ideal principle of social organization. Quite simply, the ideal of the rule of law refers to the situation of a social order subject to a legal system (as opposed to a society where bare power governs9). But there is more to just the presence of law as a counterpoint to unbounded power: the rule of law is regarded as an ideal because it envisions a social order in which law would govern the lives of society members in a way that is not arbitrary, and not oppressive. In this connection, the ideal lies in the notion that the rule of law, when achieved, is a proxy to social harmony.10 This faith in the rule of law is particularly well reflected in the recent Declaration of the High-Level Meeting of the UN General Assembly on the Rule of Law at National and International Level. The Declaration opens by a reaffirmation of the General Assembly of its `solemn commitment to the purposes and principles of the Charter of the United Nations, international law and justice, and to an international order based on the rule of law, which are indispensable foundations for a more peaceful, prosperous and just world.'11

Still, the multiple references to the rule of law as an overarching policy objective often sound rather hollow. Some consider the promises which the rule of law heralds in terms of economic growth, democratic legitimacy or respect for human rights largely unsubstantiated. The rule of law would unwarrantedly be presented as `the

6 The Rule of Law Coordination and Resource Group is composed of the Department of Political Affairs

(DPA), the Department of Peacekeeping Operations (DPKO), Office of the High Commissioner for

Human Rights (OHCHR), the Office of Legal Affairs (OLA), United Nations Development Programme

(UNDP), The United Nations Children's Fund (UNICEF), The Office of the United Nations High

Commissioner for Refugees (UNHCR), the United Nations Entity for Gender Equality and the

Empowerment of Women (UN Women) and the United Nations Office on Drugs and Crime (UNODC). It

is chaired by the Deputy Secretary-General. See . The

Rule of Law Unit was incepted in 2006 and acts as a secretariat to the Resource Group. It is part of the

Secretary-General's Executive Office. It now has a special website dedicated to the activities of the UN

on the rule of law: . 7 See, for example, International Center for Transitional Justice, `Strengthening international law: The

Rule of Law and the Maintenance of International Peace and Security', Statement delivered at the UN

Security Council `Arria Formula' Meeting of 20 June 2006, available at

. For a general overview of the contribution of NGOs to

rule of law efforts in the context of transitional justice programmes, see Eric Brahm, `Transitional

Justice, Civil Society, and the Development of the Rule of Law in Post-Conflict Societies', 9 International

Journal

of

Not-for-Profit

Law

62

(2007),

available

at

. 8 The Geneva Academy of International Humanitarian Law and Human Rights for example leads a `Rule

of Law in Armed Conflicts (RULAC) Project,' reporting most notably on the status of application of

international law in armed conflicts. See 9 The ideal notion of `government according to law' forms one of Aristotle's Politics' foundational

thoughts. See Aristotle, Politics, Book III, part 14. The breadth of the recognition of the ideal is visible in

the fact that a Marxist thinker like E.P. Thompson, for whom liberal doctrines like the rule of law form

part of the Bourgeois tradition, characterizes the rule of law as an unqualified human good. Edward

Palmer Thompson, Whigs and Hunters: The Origins of the Black Act, London, Lane, 1975, at 266. 10 At least in complex societies. Hart has famously remarked that what he called `primitive' communities

did not need a legal system in order to achieve social harmony, as tight interpersonal relationships and

a few foundational principles were sufficient. However, once the community becomes larger and more

diverse, the conditions of such harmony vanish and a legal system is needed. See Herbert L.A. Hart, The Concept of Law, Clarendon Law Series, Oxford, Oxford University Press, 2nd ed., 1994, at 91. 11 UN General Assembly, supra note 4, para. 1.

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panacea' while in fact it obscures the policy debate and confuses the actors on the ground.12 In other words, the rule of law would be little more than a slogan,13 sounding like `hooray for our side'.14

Yet at the same time, the ideal is there, and everywhere it is invoked, pursued and fought very hard for.15 Even some of the authors most critical of rule of law-oriented agendas (notably in transition countries) recognize that its promotion should be a priority.16 However, they insist that policymakers who invoke the rule of law do not provide a clear idea of how its promotion should be undertaken, or what the concept actually entails.17 As will become clear below, discussions on the precise meaning and content of the rule of law (beyond the simple expression of the ideal) are far from being settled,18 and the debate is rendered fuzzier by the fact that progress in `rule of law performance' is, as one can expect, particularly arduous to measure.19

This paper seeks to reaffirm the ideal character of the rule of law as a guiding principle for organizing life in society. However, we also acknowledge the fairness of the above criticism (section 2.1). Therefore, we suggest a new articulation of the concept of rule of law. This new articulation is based on the links we uncover between the rule of law and legal validity (section 2.2). We argue that the rule of law ideal is best pursued by legal systems which use a multidimensional conception of legal validity, understood in relation to the various ways in which a legal system should ideally connect to the social order it claims to govern. The study of this link yields an evaluative notion of rule of law that is ambitious yet realistic about what it can achieve (section 2.3). We then flesh out the conditions that need to be realized in society in order to achieve the rule of law (section 2.4). We conclude by propounding a `benchmarks approach' for fruitfully promoting the rule of law (section 3).

12 See generally Balakrishnan Rajagopal, `Invoking the Rule of Law in Post-conflict Rebuilding: A

Critical Examination', 49 William & Mary Law Review 1347 (2008), and more particularly at 1349: `the

invocation of the rule of law hides many contradictions among the different policy agendas themselves,

such as between development and human rights or between security and human rights, that cannot be

fully resolved by invoking the rule of law as a mantra.' 13 Judith Shklar, `Political Theory and the Rule of Law', in Allan Hutcheson & Patrick Monahan (eds.),

The Rule of Law: Ideal or Ideology, Toronto, Carswell, 1997, at 1. 14 Jeremy Waldron, `Is the Rule of Law an Essentially Contested Concept (in Florida)?', 21 Law and

Philosophy 137 (2002), at 139. 15 Jamie Rowen, `Social Reality and Philosophical Ideals in Transitional Justice', 7 Cardozo Journal of

Public Law, Policy and Ethics 93 (2008), at 93 ff. 16 See Rajagopal, supra note 12; Carothers, supra note 1, at 99. 17 Veronica Taylor, `Frequently Asked Questions about Rule of Law Assistance (And Why Better

Answers Matter)', 1 Hague Journal on the Rule of Law 46 (2009). 18 See Rachel Kleinfeld Belton, `Competing Definitions of the Rule of Law', Carnegie Papers ? Rule of

Law

Series,

No.

55,

January

2005,

available

at

(identifying `at least five separate

meanings or end goals' for the rule of law). 19 Martin Krygier, `The Rule of Law: Legality, Teleology, Sociology', in Gianluigi Palombella and Neil

Walker (eds.), Relocating the Rule of Law, Oxford, Hart Publishing, 2009, at 45. An attempt at

measuring rule of law performance is the World Justice Project's `Rule of Law Index', available at

.

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2. RECONCEPTUALIZING THE RULE OF LAW AS A WORKABLE IDEAL

2.1 THE TERMS OF THE DEBATE: NEGATIVE VS. POSITIVE, THIN VS. THICK AND FORMAL VS. SUBSTANTIVE CONCEPTIONS

As indicated above, the rule of law has historically been associated with societies in which the arbitrary rule of the powerful is curtailed, because the behavior of all society members (including its rulers) is guided by law. The sense of objectiveness conveyed by the law somewhat relieves people from the fear that they may be abused by the mighty, in particular those governing them. Under the rule of law, even when there are disputes, society members may expect that the said disputes will be settled objectively and peacefully in accordance with predefined rules and procedures. Likewise, citizens may expect that they will only be physically compelled to act in a certain manner under conditions provided for by laws known in advance. The rule of law could in this sense be seen as an antithesis of Hobbes' state of nature, in which men compete against each other in a permanent state of war of all against all, and in which the powerful typically prevail.20

Starting from there, the rule of law can be approached from two opposite viewpoints. A first and negative conception of the rule of law focuses on its defensive function. The main objective of the rule of law would be to shield society from the arbitrariness of power contests as the conduct of society members is guided by rules.21 The mere fact that there are rules does not in and of itself guarantee a just legal order, but may, if all goes well, eventually result in it.22 The rule of law can also be conceived from a second, more positive perspective. Such conception builds on the idea that law is an instrument for realizing a social project, in line with the ideas of John Rawls, who defines a legal system as `a coercive order of public rules addressed to rational persons for the purpose of regulating their conduct and providing the framework for social cooperation.'23 In this vein, just any rules are not sufficient. They must actually reflect the pursuance of a social project24 and change the `fate' of the women and men being part of it.25 In this more ambitious conception, the social project must be at the core of the system of rules for the rule of law to actually mean anything.26

Admittedly, such theoretical views about the ends of the rule of law do not say much about what the rule of law actually is. Attempted definitions have abounded,

20 Thomas Hobbes, Leviathan (1651, Richard Tuck ed.), Cambridge, Cambridge University Press, 1996, at 86-90. 21 Martin Krygier, `False Dichotomies, True Perplexities, and the Rule of Law', in Andr?s Saj? (ed.), Human Rights with Modesty ? The Problem of Universalism, Leiden/Boton, Martinus Nijhoff Publishers, 2004, at 256 ff. 22 Joseph Raz, `The Rule of Law and its Virtue', in Joseph Raz, The Authority of Law ? Essays on Law and Morality, Oxford, Clarendon Press, 1979, at 224-225. 23 John Rawls, A Theory of Justice, Oxford, Oxford University Press, 1999 (revised edition), at 207. 24 Rawls frames this in terms of `Liberty' and `Justice', `Justice' being understood as forming the `basic structure' of the social contract, more precisely defined as `the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association.' Id., at 10. 25 Frank I. Michelman, `Law's Republic', 97 Yale Law Journal 1493 (1988), at 1503. 26 This opens the door to value-laden contests according to the kind of social project the rule of law is or is not supposed to support. The rule of law is, in turn, associated with liberty, or with fairness and human dignity. See Jeremy Waldron's account of Hayek's and Finnis' works in Jeremy Waldron, `Is the Rule of Law an Essentially Contested Concept (in Florida)?', 21 Law and Philosophy 137 (2002), at 158 (fn 57-58). See also generally Rawls, supra note 23, at 206-213.

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particularly since the end of the 19th century. It is important to engage with the issue of definition here, as the confusion associated with the term forms an obstacle to its successful operationalization for policy purposes. From a definitional point of view, accounts of the rule of law can roughly be divided into `formal' and `substantive' conceptions thereof.27 They will each be presented in turn, after which we criticize them and present our own conception.

Formal conceptions of the rule of law are characterized by their focus on the form of so-called rule of law-compliant legal rules, rather than on the content of such rules or on the values they pursue. Given their minimalistic content, these conceptions are often labeled `thin'. Formal conceptions present the rule of law as a `law of rules,'28 that is, as a social order which is governed by rules defined in advance, and which are sometimes considered as required to meet a certain number of conditions framed as formal qualities. The most famous articulation of such conditions is probably the list drawn up by Lon Fuller and constituting the elements of what he called the `internal morality' of the law.29 Fundamental qualities of the law in formal rule of law conceptions revolve around issues of generality, predictability and publicity: individuals must be able to know in advance what the rules are so as to plan their conduct accordingly.30 This is why the rule of law is often associated, if not equated, with legal certainty.31 This is a keystone of liberal thought which considers that legal certainty is a prerequisite to the fullest exercise of one's liberty.32 Next to purely formal qualities, institutional elements are also put forward as necessary to the rule of law. The existence of an independent judicial system and of effective law-enforcement agencies applying the rules with due process are accordingly deemed a crucial element of the rule of law, as it supposedly guarantees that the general character of the law will be reflected in its application.33 Insistence on the notion that the law must be effective and equally applicable, including in relation to the authorities, is therefore

27 For discussions of such classifications and their implications, see Brian Z. Tamanaha, On the Rule of Law ? History, Politics, Theory, Cambridge, Cambridge University Press, 2004, at 91 ff.; Paul Craig, `Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework', Public Law 467 (1997); St?phane Beaulac, `The Rule of Law in International Law Today', in Palombella & Walker, supra note 17, at 201. 28 Antonin Scalia, `The Rule of Law as a Law of Rules', 56 University of Chicago Law Review 1175 (1989). 29 These elements can be summarized as follows: 1. the law should be general (`there must be rules'); 2. the law must be promulgated; 3. the law should not be retroactive; 4. the law must be clear; 5. the law should not be self-contradictory; 6. the law must not require the impossible; 7. the law should be reasonably constant through time; 8. there should be congruence between the declared rule and official action. See Lon Fuller, The Morality of Law, New Haven & London, Yale University Press, 1969 (revised edition), pp. 41-90. 30 Scalia, supra note 28, at 1179. 31 Raz, supra note 22, at 210, Fran?ois Ost & Michel van de Kerchove, De la Pyramide au R?seau? Pour une Th?orie Dialectique du Droit, Brussels, Publications des Facult?s universitaires Saint-Louis, 2002, at 328. 32 See generally Friedrich von Hayek, The Constitution of Liberty, Chicago, The University of Chicago Press, 1978. 33 The 19th century British constitutional Scholar Albert Venn Dicey already emphasized this in his three-pronged articulation of the rule of law: 1. `The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power'; 2. `Equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts'; 3. `The law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts.' See Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, London, Macmillan, 1885. See also Scalia, supra note 28, engaging common law systems, in which judges have law-making power, with such conceptions of the rule of law.

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