Transitions to the Rule of Law

April 18, 2011, 6:13 p.m.

Transitions to the Rule of Law, by Francis Fukuyama, looks at the promotion of the rule of law and why it succeeds in some locations but fails in others.  He provides a historical context behind how the rule of law has developed throughout the world and the implications of its development.  It is important to have a clear definition of what the rule of law is in order to fully understand how to implement it in a country.  Fukuyama states in his paper that in order for the rule of law to thrive in any environment it must meet three requirements, legal specialization, institutional autonomy, and a correspondence between the law and social norms. 

The rulers of many societies outside of East Asia thus recognized that they lived under a law that they themselves did not create. Yet the degree to which this would impose real restrictions on their behavior depended not just on this theoretical acknowledgement, but on the institutional conditions surrounding the formulation and enforcement of law. The law would become a more binding constraint on rulers under certain specific conditions: 1) if it was codified into an authoritative text; 2) if the content of the law was determined by specialists in law and not by political authorities; 3) if the law was protected by an institutional order separate from the political hierarchy, with its own resources and power of appointment; and finally, 4) if the law actually corresponded to the lived social norms and values of the community to which it was applied, including the ruling elites who presided over the political system.

The normative dimension of law—that is, people’s belief that the law is fundamentally just and their subsequent willingness to abide by its rules—is key to the rule of law. The most secure form of law depends not on draconian punishments, but rather on voluntary compliance on the part of most citizens. It is not clear that Europe had a particular advantage over India or the Middle East in this regard, since the religiously based law of all three civilizations shaped and reflected broad social norms. One of the great problems with trying to import modern Western legal systems into societies where they did not exist previously, in fact, is the lack of correspondence between the imported law and the society’s existing social norms. Sometimes the importation of legal rules can speed up a process of social change, as when laws mandating equal rights for women are imposed in a society dominated by males. But if the gap between law and lived values is too large, the rule of law itself will not take hold.

He proposes a controversial idea in that rather than implementing changes across all of a society it may be more effective to focus targeted programs on elites thereby creating a buy-in to the system which creating a precedent for the program to then spill over to the rest of society.  His argument states that this approach may be more effective considering limited funds and the costly nature of implementing
Historically, the rule of law emerged first among elites and was a means of regulating conflict among the rich and powerful within a society. Today, the international community believes that any development program needs to be applied universally if it is to be done at all; a program that works only in the capital city or for the privileged alone is regarded as a failure. But resources are scarce. In purely technical terms, legal systems are among the most difficult and costly governmental systems to construct because they have huge infrastructure needs and require both human and physical capital. Historical experience with law suggests that more targeted programs may set important precedents that will eventually bear fruit as the society develops the capacity to spread them more broadly. There may be lower-cost alternatives based on customary or hybrid rules that will work better in the meantime.

Fukuyama concludes with the statement that more research needs to be done on the transition of the rule of law in a rigorously comparative framework in order to understand how to best support its creation and implementation around the world.

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