chapter  1
11 Pages

Rule-of-law temptations

ByTHOMAS CAROTHERS

In an article I published in Foreign Affairs ten years ago, entitled “The Rule of Law Revival,” I called attention to a striking trend – the rise in international policy circles of attention to and concern over strengthening the rule-of-law in countries around the world (Carothers 1998). Suddenly, I wrote, it seemed that talk of the rule-of-law was everywhere and that rule-of-law development was being held out as the answer to a multitude of diverse policy challenges, whether it was how Russia could consolidate its shaky transition away from communism, how China could solidify its meteoric economic growth, or how Mexico could resist the capture of its state institutions by narcotraffickers. I attributed this noteworthy rise to the fact that the rule-of-law appeared to

be crucial to moving forward with both halves of the dual economic and political transition that in the 1990s had become the defining framework for changes in much of the developing world and the post-communist world. That is to say, on the one hand rule-of-law development would facilitate economic transitions to the market model, by helping achieve legal and institutional predictability and efficiency in a variety of areas crucial to the operation of a market economy. And on the other hand, it would help bolster fledgling democratic experiments by undergirding new constitutions, electoral systems, and political and civil rights. Moreover, progress on the rule-of-law would help alleviate the two serious problems – corruption and ordinary crime – whose growing severity in many countries appeared to be the major negative side effects of the many attempted economic and political transitions. In short, I argued, rule-of-law development owed its new prominence in international policy circles to its apparent promise of being what could be called “an elixir of transitions” (ibid.: 99). In the intervening ten years, international attention to rule-of-law develop-

ment has only continued and in fact even increased. Political leaders all over assert a commitment to building the rule-of-law. Officials in donor countries express a determination to help support rule-of-law development worldwide and the number of organizations and initiatives dedicated to rule-of-law assistance keeps multiplying. The rule-of-law field continues to radiate an almost constant sense of discovery. Policy actors and aid practitioners keep

discovering it and becoming seized with enthusiasm for the rule-of-law. They are often surprised to learn that what seems to them a vital discovery is in fact a relatively late arrival to a revival that has been going on for quite some time. This continued rise of the rule-of-law star reflects the fact that the connec-

tions between the rule-of-law to economic and political development, although perhaps not as straightforward as some early enthusiasts presumed, are real. In the economic domain, the simplistic idea that the rule-of-law automatically helps foster economic growth has come under useful critical scrutiny (see, e.g., Haggard et al. 2008). Yet at least some positive link appears plausible and is enough to animate many aid practitioners. In the political domain, the problems encountered by many countries with

regard to democratization have only strengthened the view of many Western policy experts that the rule-of-law is a necessary focus. Faced, for example, with the disappointing slide in Russia toward soft authoritarianism, some Western observers conclude that the West’s (and Russia’s) mistake was insufficient focus on the rule-of-law early on after the collapse of the Soviet Union. The catastrophic problems in Iraq after the ouster of Saddam Hussein prompted a similar conclusion on the part of some US observers who argued that a greater rule-of-law aid effort should have preceded the democracybuilding project. When in Egypt the Muslim Brotherhood made a surprisingly strong showing in the 2005 parliamentary elections, some analysts cautioned that Egypt should not move ahead with a political opening until it first consolidates the rule-of-law. Moreover, the rule-of-law has also gained further impetus in this decade

from the continued advance of globalization. Already by the late 1990s it was becoming clear that globalization tends to increase incentives and even pressures for rule-of-law development both within countries and among countries. Countries seeking a share of the increasing flow of capital and goods across borders find that weak rule-of-law can be an obstacle. Weak legal protection for foreign investors, for example, can discourage foreign direct investment. High levels of crime and corruption may have similar effects. The increasing flow of goods and capital create a need for regulating and managing them, which stimulates rule-of-law development. Globalization has proven in this decade to be less benign and much less a

process of spreading Western norms than many US observers believed or hoped it would be ten years ago. Nevertheless, its continued intensification continues to bolster the need for rule-of-law development in many countries. For many Americans, globalization has come in this decade to be associated with challenges or even threats to the United States, whether it is the rise of new economic powers or the unsettling use of the tools of global communications by Al Qaeda and other terrorist groups. Yet even as globalization changes in character, almost every element of it – whether it is the remarkable increase in flow of digitalized information via the Internet, the diversification of transnational civil society, or the heightened movement of service industries

across borders – implies some sort of rule-of-law development as either a facilitator or a counterweight. In this context of ever-increasing interest and often enthusiasm for rule-of-law

development among Western policymakers and aid practitioners, a tendency exists toward uncritical and sometimes wishful thinking about the subject. Some of these lines of thought represent what can be described as temptations, temptations to believe certain things about the rule-of-law and its place on the international stage that are misleading and sometimes unhelpful. At least four such temptations – concerning consensus, reductionism, sequencing, and ease – are identifiable and deserve attention.