The Rule of Law Revival

Thomas Carothers

From Foreign Affairs, March/April 1998

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Summary:  One cannot seem to get through a foreign policy debate these days without someone proposing the rule of law as a solution to one problem or another. The rule of law is undeniably important to peaceful, free, and prosperous societies, but it is no quick fix. Imparting the rule of law to a society with no history of it involves changing the attitudes of masses and elites and creating a political culture in which nobody is above the law. Unfortunately, proponents of rule-of-law reform tend to have simpler, less lasting things in mind, like writing legal codes and sprucing up courts.

Thomas Carothers is Director of Research at the Carnegie Endowment for International Peace.

A NEW NOSTRUM

One cannot get through a foreign policy debate these days without someone proposing the rule of law as a solution to the world's troubles. How can U.S. policy on China cut through the conundrum of balancing human rights against economic interests? Promoting the rule of law, some observers argue, advances both principles and profits. What will it take for Russia to move beyond Wild West capitalism to more orderly market economics? Developing the rule of law, many insist, is the key. How can Mexico negotiate its treacherous economic, political, and social transitions? Inside and outside Mexico, many answer: establish once and for all the rule of law. Indeed, whether it's Bosnia, Rwanda, Haiti, or elsewhere, the cure is the rule of law, of course.

The concept is suddenly everywhere-a venerable part of Western political philosophy enjoying a new run as a rising imperative of the era of globalization. Unquestionably, it is important to life in peaceful, free, and prosperous societies. Yet its sudden elevation as a panacea for the ills of countries in transition from dictatorships or statist economies should make both patients and prescribers wary. The rule of law promises to move countries past the first, relatively easy phase of political and economic liberalization to a deeper level of reform. But that promise is proving difficult to fulfill. A multitude of countries in Asia, the former Soviet Union, Eastern Europe, Latin America, sub-Saharan Africa, and the Middle East are engaged in a wide range of rule-of-law reform initiatives. Rewriting constitutions, laws, and regulations is the easy part. Far-reaching institutional reform, also necessary, is arduous and slow. Judges, lawyers, and bureaucrats must be retrained, and fixtures like court systems, police forces, and prisons must be restructured. Citizens must be brought into the process if conceptions of law and justice are to be truly transformed.

The primary obstacles to such reform are not technical or financial, but political and human. Rule-of-law reform will succeed only if it gets at the fundamental problem of leaders who refuse to be ruled by the law. Respect for the law will not easily take root in systems rife with corruption and cynicism, since entrenched elites cede their traditional impunity and vested interests only under great pressure. Even the new generation of politicians arising out of the political transitions of recent years are reluctant to support reforms that create competing centers of authority beyond their control.

Western nations and private donors have poured hundreds of millions of dollars into rule-of-law reform, but outside aid is no substitute for the will to reform, which must come from within. Countries in transition to democracy must first want to reform, and must then be thorough and patient in their legal makeovers. Meanwhile, donors must learn to spend their reform dollars where they will do the most good-and expect few miracles and little leverage in return.

LEGAL BEDROCK

The rule of law can be defined as a system in which the laws are public knowledge, are ...

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