- Why the Rule of Law Matters
High-quality democracy requires a truly democratic rule of law that ensures political rights, civil liberties, and mechanisms of accountability which in turn affirm the political equality of all citizens and constrain potential abuses of state power. How may the democratic rule of law (état de droit, estado democrático de derecho, Rechsstaat) be conceptualized and, insofar as possible, empirically gauged? By exploring a set of variables within the rule of law we can understand what makes it effective and how it relates to other aspects of the performance of democratic countries. This essay focuses on contemporary Latin America (especially Argentina and Brazil) where national-level democratic regimes often effectively coexist with undemocratic sub-national regimes—so-called “brown areas.”
The rule of law is among the essential pillars upon which any high-quality democracy rests. But this kind of democracy requires not simply a rule of law in the minimal, historical sense that I will shortly explain. What is needed, rather, is a truly democratic rule of law that ensures political rights, civil liberties, and mechanisms of accountability which in turn affirm the political equality of all citizens and constrain potential abuses of state power. Seen thus, the rule of law works intimately with other dimensions of the quality of democracy. Without a vigorous rule of law, defended by an independent judiciary, rights are not safe and the equality and dignity of all citizens are at risk. Only under a democratic rule of law will the various agencies of electoral, societal, and horizontal accountability function effectively, without obstruction and intimidation from powerful state actors. And only when the rule of law bolsters these democratic dimensions of rights, equality, and accountability will the responsiveness of government to the interests and needs of the greatest number of citizens be achieved.
Although in some of my previous writings readers may find partial attempts at the theoretical and normative justification of a democraticrule of law, here I make only passing reference to these matters. My intention is to contribute to a discussion concerning if and how something called the rule of law, or the democratic rule of law, may be conceptualized and, insofar as possible, empirically gauged. To this [End Page 32] end, the concluding section of this essay proposes a set of variables for the exploration of this dimension. Please note that what follows has been formulated with contemporary Latin America centrally in mind; it is of course an open question how well it might apply outside this region.
The "rule of law" (like partially concurrent expressions such as Rechsstaat, état de droit, or estado de derecho) isa disputed term. For the time being, let me assert that its minimal (and historically original) meaning is that whatever law exists is written down and publicly promulgated by an appropriate authority before the events meant to be regulated by it, and is fairly applied by relevant state institutions including the judiciary (though other state institutions can be involved as well). By "fairly applied" I mean that the administrative application or judicial adjudication of legal rules is consistent across equivalent cases; is made without taking into consideration the class, status, or relative amounts of power held by the parties in such cases; and applies procedures that are preestablished, knowable, and allow a fair chance for the views and interests at stake in each case to be properly voiced. The following is a minimal but significant criterion: If A is attributed the same generic rights (and, at least implicitly, the same legal personhood and agency) as the more powerful Bwith whom A enters into a crop-sharing arrangement, employment contract, or marriage, then it stands to reason that A has the right to expect equal treatment from the state institutions that have, or may acquire, jurisdiction over such acts.
This implies formal equality, in two senses. First, it is established in and by legal rules that are valid (at least1 ) in that they have been sanctioned following previously and carefully dictated procedures, often ultimately regulated by constitutional rules. Second, the rights and obligations specified are universal, in that they attach to each individual considered...