chapter  11
38 Pages

Social norms, rule of law, and gender reality: An essay on the limits of the dominant rule-of-law paradigm

ByKATHARINA PISTOR, ANTARA HALDAR, AMRIT AMIRAPU

The rule-of-law is a powerful concept that has inspired political theorists over the centuries. More recently it has become one of the dominant paradigms for social and economic reforms and policy agendas at multilateral institutions, such as the World Bank,2 or for interest group organizations, like the American Bar Association.3 The enthusiasm for the rule-of-law as a remedy for a range of social and economic ills is supported by empirical data showing a strong positive association between measures of the rule-of-law and a host of desirable outcome variables, ranging from levels of GDP, foreign direct investment, and trade flows, all the way to human rights and child mortality data.4 Rule of law proponents are not, however, without their critics. Some of the most forcefully voiced critiques focus on measurement issues (Voigt 2008); others on the interpretation of the data and their translation into policy prescriptions (Arndt and Oman 2006); while still others have questioned whether the observed empirical affinity between rule-of-law and different outcome variables has been sufficiently theorized to generate meaningful insights (Thomas 2007). In this chapter we raise a different issue, namely the limited ability of “rule-

of-law” to explain observable differences within a given country. More specifically, we focus on minorities that either do not share in whatever benefits are commonly associated with rule-of-law reforms or else share in the benefits only indirectly in ways that are insufficiently understood. We analyze these “minorities” by focusing on women as an example. Our claim is that the basic insights this chapter generates could be applied to other disadvantaged social groups as well. Technically speaking, women are not a minority. In principle the numbers

of men and women in any given society should be roughly equal. Nonetheless, in many countries males outnumber women by a significant margin – a phenomenon Amartya Sen has famously described as the “missing women” (Sen 1989).5 This gender gap has been attributed to both sex selective foeticide and female infanticide, but also, crucially, neglect of girl children, which substantially lowers life expectancy for infant girls. Further, in some countries the

ratio of women to men has worsened recently, suggesting that this phenomenon cannot be traced to historical legacies or rates of poverty alone.6 This includes countries with impressive recent economic growth achievements, such as China and India. But mortality rates are, of course, only the crudest way of measuring the status of women in society. Indeed, over the past decade a number of indices have been created that seek to measure women’s “capabilities” more broadly (the UN’s Gender Development and Gender Empowerment Indices, GDI and GEM), women’s achievements or status in relation to men (the World Economic Forum’s Gender Gap Index, GAP), as well as the legal and social institutions that determine the status of women (the OECD’s Gender Institutions and Development Index, GID). In order to provide a fuller account of the status and well-being of women in a society, we will discuss these various indices in the paper and will explore their relationship with widely recognized rule-of-law indicators. In addition, we will analyze specific legal interventions at the international and national levels aimed at affecting the status of women in society and assess their results. At the very outset, we would like to emphasize that this chapter does not

purport to explain the status of women in society. Instead, it uses a gendered approach to expose the limits of the dominant rule-of-law paradigm and to suggest new avenues for future research and policy considerations. The chapter is divided into three parts. Part A explores the relation between

the rule-of-law and the status of women in society using existing data sets. Part B assesses the impact of specific legal policy interventions on gender reality at the international and the national levels. Part C uses the findings of Parts A and B as the basis for a critique of the dominant rule-of-law paradigm. In the conclusion, we make suggestions for future research and policy design.

The current fascination with the rule-of-law is closely associated with the forays that economics and political science have made into the field of law and legal institutions and the technologies they have brought to this field – including, although not limited to, the ability to quantify institutions and use statistical tools to assess their impact. The importance of the rule-of-law for economic development was first documented in quantitative terms by Knack and Keefer (1994), as well as Mauro (1995). These early studies relied heavily on single surveys primarily of foreign investors and their perception of the rule of law in the host countries in which they were investing.7 In these studies, rule of law was a component variable based on several questions that asked about the dominance of formal legal devices over others, including violence, politics, or personal relations, for resolving disputes primarily in the realm of contracts and property. Over the past 15 years, both survey techniques, and the construction of indices have improved. The most comprehensive indices related to the rule-of-law currently available are the World Bank’s governance indicators,

also referred to as the WGI (Kaufmann et al. 2007b). The WGI measure various dimensions of governance such as the “rule of law” and “government effectiveness.” The indices are based on surveys and combine the results from a variety of different sources. By averaging information from multiple data sources, the WGI seek to mitigate the idiosyncrasies of individual survey instruments in an attempt to enhance their informational content.8 The WGI have been widely used in the literature to assert the importance of the rule of law. Nevertheless, using survey instruments to measure the quality of institutions

remains highly problematic. Sampling issues loom large, as well as concerns about the familiarity of respondents with the institutions they are queried about, and the implicit benchmark they might be using when ranking the institutions of a particular country on a scale. To avoid these problems, other indices have sought to measure the rule-of-law in a more objective fashion. The most comprehensive index based on close readings of constitutions and legal statutes is the “Political Constraints Index” (PolCon) developed by Witold Henisz (2000).9 The primary purpose of the PolCon index is to measure the formal constraints on state power by recording the number of institutionalized vetoes in a given political system. Interestingly, the two indices seem to capture different aspects of the rule-of-law, indicated by the less than perfect correlation between them (see Table 11.1). In the empirical tests that follow, we use both PolCon and the “rule of law” (ROL) index from the WGI in order to show that our results are robust for at least two fairly dissimilar measures of the rule of law, both of which are used widely in the literature. Against the backdrop of numerous empirical studies that show a positive

correlation between rule-of-law (ROL) or Political Constraints (PolCon) and a host of desirable outcome variables, one might expect that a similar relationship would also hold between rule-of-law and the status of women in society. But as per a new worldwide survey instrument by the Economic Forum in Davos measuring the “gender gap,” equality between men and women – in the sense of equal access to political, economic, and social positions of power – has not been achieved in any society. According to the 2007 Gender GAP data, Sweden, is the highest-ranking country, with a score of 0.8146 on the Gender Gap index, where a ratio of 1.0 would indicate full equality. Thus, even in Sweden there is still a substantial gap between men and women (Hausmann et al. 2007: 7).