CIAO DATE: 03/05

Competing Definitions of the Rule of Law: Implications for Practitioners

Rachel Kleinfeld Belton

Carnegie Endowment for International Peace

January 2005

Summary

Definitions of the rule of law fall into two categories: (1) those that emphasize the ends that the rule of law is intended to serve within society (such as upholding law and order, or providing predictable and efficient judgments), and (2) those that highlight the institutional attributes believed necessary to actuate the rule of law (such as comprehensive laws, well-functioning courts, and trained law enforcement agencies). For practical and historical reasons, legal scholars and philosophers have favored the first type of definition. Practitioners of rule-of-law development programs tend to use the second type of definition. This paper analyzes the challenge of effectively defining the rule of law, through an examination of both types of definitions, the historical background of each, and the implications of each for rule-of-law development efforts.

From this definitional analysis, two main points follow. First, as ends-based definitions make clear, the rule of law is not a single, unified good but is composed of five separate, socially desirable goods, or ends: (1) a government bound by law, (2) equality before the law, (3) law and order, (4) predictable and efficient rulings, and (5) human rights. These ends are distinct, likely to meet different types of support and resistance within countries undergoing reform, and often in tension with one another in practice. Second, a number of the widely acknowledged problems with current rule-of-law reform strategies spring directly from pitfalls inherent in a definition based on institutional attributes. Consciously switching to an ends-based definition would provide conceptual clarity to strengthen rule-of-law reform efforts. By considering the rule of law as a series of separate goods that must advance together, practitioners can improve their measurements of the rule of law within and between various countries, better anticipate likely supporters of and opponents to different reform efforts, and avoid various unintended side effects of reform efforts that now sometimes undermine the rule of law in countries attempting reform.

Table of Contents

Contents (PDF, 1 page, 19.1 Kb)

Executive Summary (PDF, 5 pages, 59.4 Kb)

Ends-Based Definitions (PDF, 9 pages, 90.6 Kb)

The Institutional Approach (PDF, 5 pages, 73.4 Kb)

Implications of Competing Definitions (PDF, 8 pages, 90.3 Kb)

Conclusion (PDF, 1 page, 33.2 Kb)

Notes (PDF, 6 pages, 82.6 Kb)

Bibliography (PDF, 4 pages, 58.3 Kb)