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Cline Center: Research Programs: SID Conceptual Models: Rule of Law Barometer
Bodies of written rules, laws in common parlance, predate recorded history. The Code of Hammurabi, the Ten Commandments, the laws of Draco and Solon, the Laws of the Twelve Tables, and the Justinian Code are among the most noteworthy early efforts to codify rules of conduct. Indeed, Shklar notes that “The antiquity of legalism as an ideology is, in fact, one of the wonders of history” (Shklar 1964). In fact, she goes on to note, skeptically, that when scholars attempt to extract the quintessence of the West it always comes down to “’Freedom under law,’ ‘a government of laws not of men’” (Shklar 1964). Much to Shklar’s chagrin, the importance attributed to law as an institution that is vital to societal welfare has grown considerably since she wrote.
There are two core reasons for the widespread embrace of the ROL at the beginning of the 21st century. The first derives from the recent changes in the perceived social utility of the ROL, its widely acclaimed importance for societal development. By societal development we mean the institutions and processes that affect the welfare of societies, broadly conceived (economic growth, environmental quality, human rights, public health, etc.). The second relates to the ambiguity that surrounds this concept, which allows it to be all things to all people.
The earliest conceptions of the social utility of the ROL, beginning with the initial reflections of Plato and Aristotle, stressed its double-edged ability to preserve social order and curb the arbitrary rule of governmental leaders. Centuries later, it became recognized by liberals as the principal tool for the protection of liberty. In the later part of the 20th century the ROL became viewed as an essential tool for societal development, central to efforts to secure prosperity and a higher standard of living in developing societies.
The ambiguity that surrounds the concept of the ROL is widely recognized – and lamented – by all who are familiar with it. Moreover, its conceptual elusiveness is not a recent phenomenon. At the end of the 19th century Alfred V. Dicey noted:
…whenever we talk of Englishmen as loving the government or law, or of the supremacy of law as being a characteristic of the English Constitution, [we] are using words which, though they possess a real significance, are nevertheless to most persons who employ them full of vagueness and ambiguity (1896).
The recent scholarly interest in the ROL has done little to reduce its conceptual ambiguity. Given this situation, it became clear that the transformation of the ROL into a useful social science concept required turning to an older body of legal scholarship. A review of this literature demonstrated that that this transformation could best be achieved by decomposing the ROL into a pair of independent and more concrete theoretical dimensions: legal orders and legal regimes.
A legal order is a social mechanism used to, in Kelsen’s terms, “bring about a certain reciprocal behavior of human beings: to make them refrain from certain acts which, for some reason, are deemed detrimental to society, and to make them perform others which, for some reason, are considered useful to society.” The concept of a legal regime refers to the laws, rights, procedures and institutions embodied in a nation’s legal system. A wide range of laws, rights, procedures and institutions are compatible with the existence of a legal order. Differences in legal regimes exist across nations because they reflect different values and are designed to structure human conduct and relationships in ways that comport with different normative orders. While in theory there are an infinite number of ways to design legal regimes, differences across nations at a particular point in time normally reflect historical, geo-political and cultural factors. As a result, there are a far smaller number of legal regimes that fall within a handful of general typologies (liberal, authoritarian, socialist, totalitarian, etc.).
A fuller treatment of the approach to understanding the conceptualization of the rule of law adopted here can be found in two essays, The Rule of Law and Societal Development and The Concept of a Legal Order. Work is on-going to develop a more complete elucidation of the concept of a legal regime as well as the principal types of legal regimes that have existed during the post-WW II era.
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