The Rule of Law and Judicial Independence in Newly Democratic Regimes

Just as it is easier to hold elections than to root liberal democratic principles in newly independent states, it is easier to export constitutions and to create courts than to install the rule of law.¹ There is an important distinction between those societies that can profess legality and those that advance the rule of law more generally.² But is the rule of law a necessary or even a desirable component of democratization?

In the abstract, it is not especially difficult to imagine how the rule of law might contribute to democratization. Most understandings of the rule of law, at whatever level of normative abstraction, have at their center a concern with the accountability and principled exercise of governmental power. The rule of law, as I have argued elsewhere, is less about the imposition of limits on power than developing the sense that any exercise of public power must be defensible against a set of stable, knowable, and public norms.³ Published principles of law contribute to democratic design by providing standards of accountability against which citizens may assess the policies and principles of democratic regimes.⁴ In this sense, the rule of law complements principles of democratic accountability by prohibiting the exercise of arbitrary power.⁵ Put another way, the rule of law is a mechanism for democratizing power by disciplining power.

Perhaps less obviously, the rule of law may also contribute to democratization by increasing the capacity of newly democratic regimes to govern. In many respects, rule of law values promote governmental efficiencies by ensuring the consistent and uniform application of rules, guarding against governmental corruption, and by making governmental actions transparent. In short, the rule of law can facilitate the actual process of governing. Long experience suggests that the survival and strength of nascent democracies depends in some measure on the ability of those governments to fulfill the mandates of any government: to secure order and promote the public weal. An understanding of the rule of law that sees it first as a set of limits on power obscures the ways in which the rule of law complements and enables power. It also risks making the rule of law seem less attractive to elites, who whether acting on the basis of self-interest or public purpose are unlikely to see the "limiting" aspects of the rule of law as a useful device for new regimes concerned with the creation and maintenance of stable governments. Understanding how the rule of law promotes energetic and effective governance will make it more appealing as a principle of constitutional design and as a live feature of democratic states.

Related, and no less important, the rule of law can contribute to democratic stability and maintenance by shaping civic society, by reinforcing citizens' commitment to democracy itself. At the most basic level this can occur by persuading citizens that the rule of law and democratic regimes actually do promote effective governance — that such regimes can govern effectively and materially improve the quality of their citizens' lives. The rule of law can contribute to constitutional and democratic maintenance by augmenting what Linz and Stepan term the "attitudinal component of democracy," or the extent to which citizens value democracy in its own right.⁶ The rule of law in newly democratic regimes can thus be instrumental in the creation and maintenance of civic society.⁷

All of which begs the question: How do we construct the rule of law in newly democratic states? The particulars of constitutional design are a critical part of that process, but constitutional draftsmanship alone is more a promise than a guarantee. The question is not whether we can compose institutions that promote the rule of law on paper, but rather can we find ways to make them take hold in the polity. How do we give concrete expression to the rule of law?

As a matter of constitutional arrangement, most of the new democracies have relied heavily on the judiciary to realize the rule of law. Indeed, many of us have been involved in the design and constitutional (re-)construction of newly independent states...