HUMAN RIGHTS AND RULE OF LAW: WHAT'S THE RELATIONSHIP?

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Rule of law in some form may be traced back to Aristotle and has been championed by Roman jurists; medieval natural

law thinkers; Enlightenment philosophers such as Hobbes, Locke, Rousseau, Montesquieu and the American founders; German philosophers Kant, Hegel and the nineteenth century advocates of the rechtsstaat; and in this century such ideologically diverse figures as Hayek, Rawls, Scalia, Jiang Zemin and Lee Kuan Yew.1 Until recently, however, the human rights movement paid relatively little attention to the relationship between rule of law and human rights.2 The Universal Declaration of Human Rights mentions rule of law only in passing in the preamble, suggesting in typically cryptic fashion that "human rights should be protected by the rule of law."3 Neither the International Covenant on Civil and Political Rights (K]CPR) nor the International Covenant on Economic, Social and Cultural Rights (ICESCR), the other two main pillars of the "international bill of rights," mentions rule of law.4 Nor do most other early rights treaties, general assembly statements, committee reports or comments appeal to rule of law.

In contrast, references to rule of law now regularly appear in general assembly resolutions, committee reports, regional workshop platforms and other human rights instruments.5 Rule of law is central to the European Convention and is one of the requirements to join the European Union.6 The World Bank and the International Monetary Fund (IMF), limited by their charters from directly intervening in domestic political affairs, have emphasized rule of law and good governance.7 In 2002, the late U.N. Human Rights Commissioner Sergio Vieira de Mello made rule of law the centerpiece of his brief tenure in office.8

This Article considers several explanations for the international human rights movement's sudden heightened attention to rule of law. The human rights movement has increasingly encountered conceptual, normative and political challenges. In particular, the movement's claim to universality has been shattered by critiques that take issue with the secular, individualistic, liberal commitments of the movement.9 In contrast, rule of law appears to be widely accepted by people of different ideological persuasions. Christians, Buddhists and Muslims; libertarians, liberals and Confucian communitarians; democrats, soft authoritarians, even socialists and neo-Marxists10 all find value in rule of law. Rule of law then may provide one way to shore up the shaky foundation of the human rights movement. Perhaps, as de Mello suggested, rule of law will be a "fruitful principle to guide us toward agreement and results," and "a touchstone for us in spreading the culture of human rights."11

Whatever the human rights movement's conceptual and normative shortcomings, the movement's biggest failure has been not making good on the promise of a better life enjoyed by all in accordance with the Utopian ideals contained in the ever-swelling list of human rights. Despite the movement's successes, we still live in a world where widespread human rights violations are the norm rather than the exception. Rule of law is seen as directly integral to the implementation of rights. Without rule of law, rights remain lifeless paper promises rather than the reality for many throughout the world.

Rule of law may also be indirectly related to better rights protection in that rule of law is associated with economic development, democracy and political stability, which are key determinants in rights performance. A long line of economists, legal scholars and development agencies from Max Weber to Douglas North to the World Bank have argued that rule of law is necessary for sustained economic growth. Rule of law protects property rights and provides the necessary predictability and certainty to do business. With one-fourth of the world's population living below the international poverty line of $581 a year per capita, 790 million people lacking adequate nourishment, one billion living without safe water to drink, two billion suffering from inadequate sanitation and 880 million lacking access to basic healthcare, economic growth is essential to the alleviation of some of the worst human suffering.12

Rule of law is integral to and necessary for democracy and good governance. Attempts to democratize without a functional legal system in place have resulted in social disorder, as in Russia, East Timor, Haiti, Kosovo, Afghanistan and Iraq, and in the collapse of democratic regimes and their replacement by more authoritarian regimes in Indonesia in 1957, the Philippines in 1972, South Korea in the 1970s and numerous former Soviet republics.13

Rule of law is said to facilitate geopolitical stability and global peace.14 According to some, it may help prevent wars from occurring in the first place.15 It also provides guidelines for how war is carried out, limiting some of the worst atrocities associated with military conflicts. It offers the possibility of holding accountable those who commit acts of aggression and violate humanitarian laws of war, and it is central to the establishment of a rights-respecting post-conflict regime.

Post-9/11 concerns over terrorism have also focused attention on rule of law as a means to hold terrorists accountable and to legitimize their capture and punishment, often through the promulgation of national defense and anti-terrorist laws.16 The war on terrorism has been characterized as a war on "our" way of life-on democracy, human rights and rule of law-and ergo on civilization itself. Kofi Annan claimed that the terrorist attacks on the United States "struck at everything [the United Nations] stands for; peace, freedom, tolerance, human rights[,] . . . the very idea of a united human family[,] . . . all our efforts to create a true international society, based on the rule of law."17 Conversely, rule of law plays a crucial role in ensuring that civil liberties are not encroached upon in the zeal to crack down on suspected terrorists and has been invoked to protest, for instance, the so-called Patriot Act.18

In addition, the upsurge of U.S. unilateralism and American-style cultural relativism has challenged the universality of human rights, exposed the soft underbelly of the international order and its vulnerability to power politics and threatened to undermine the foundation of the international legal order upon which the edifice of international human rights rests. '9 Rule of law provides a rhetorical basis for challenging the world's sole reigning superpower. Indeed, Annan recently reiterated that the U.S.-led invasion of Iraq was illegal20 and called on all nations, weak or strong, to abide by international law and uphold rule of law.21

Taking each of these factors in turn, I critically analyze the relationship between rule of law and human rights in order to address the following: To what extent are the high hopes for rule of law justified? What are the conceptual, normative and practical limits of rule of law? What are the main obstacles to implementation of rule of law domestically and internationally? What changes in the international order would be required to realize the possibilities of rule of law? Given such limitations, what can we really expect for and from rule of law? I suggest that we must be more pragmatic in our approach, and more modest in our aspirations, for rule of law and its role in facilitating the implementation of human rights. In the final section, I draw a number of more specific lessons and conclusions about each of the uses for which rule of law has been put.

I. BOLSTERING THE SHAKY FOUNDATIONS OF THE HUMAN RIGHTS MOVEMENT: CONCEPTUAL ISSUES

In the past, support for the human rights movement was relatively costless for states given doctrinal limitations in the corpus of international rights law; the relatively undeveloped state of multilateral, governmental and non-governmental institutions for monitoring human rights violations; and the weakness of enforcement mechanisms. In recent years, the human rights movement has become an increasingly powerful force capable of affecting governmental policies and actions to one degree or another in many, if not all, countries.

Not surprisingly, the international human rights regime has become the subject of more critical scrutiny as it has become more powerful. As a result, there is now a greater awareness of a number of conceptual, normative, political and practical weaknesses in the human rights framework.22 Despite the considerable efforts of philosophers, the concept of a right remains notoriously contested and incoherent.23 There is no accepted understanding of what a right is24-whether collective or group rights and nonjusticiable social, economic and cultural rights are really rights;25 of how rights relate to duties; or whether a discourse of rights is complementary or antithetical to, or better or worse than, a discourse of needs or capabilities.26 Nor is there an accepted ranking of the different rights that make up the list of goodies included in the ever-proliferating set of human rights instruments and customary international law.27 Attempts to justify many of these allegedly universal rights have ended up demonstrating the lack of a firm foundation for them and have highlighted how different traditions may be at odds with some rights while justifying other rights in different ways.28

Acknowledging the impossibility of offering a justification of rights persuasive to all, some rights proponents have sought comfort in a pragmatic consensus on human rights issues or held out hope for the emergence of an overlapping consensus.29 But the pragmatic or overlapping consensus quickly breaks down once one moves beyond feelgood discussions about the desirability of the broad wish-list of abstract rights contained in human rights documents to the difficult issues of the justifications for such rights and how they are to be interpreted and implemented in practice.30

Many human rights issues implicate deep moral commitments, including religious views, traditional gender roles, different notions of freedom and autonomy and fundamental beliefs about the relationship of the individual to the state and to other members of society. Because human rights issues raise these deep commitments, and because the international human rights movement's pretense of universalism leads to particular outcomes that may be defensible on liberal principles but are at odds with the principles and commitments of other traditions and normative systems, the human rights movement has been accused of bias, arrogance and imperialism.31 Given differences in fundamental commitments, the human rights movement is now seen by many as the new religion, the latest crusade or a modern day inquisition, while others criticize the movement as a well-intentioned if benighted hegemony at best, or malicious strong-arm politics and cultural genocide at worst.32

Several of the main fault lines may be quickly summarized.33 With Marxism and leftist critiques marginalized,34 Islamic fundamentalism constitutes the most radical theoretical and practical challenge to the international human rights regime.35 Despite Herculean efforts to reconcile Islam with contemporary human rights through a variety of interpretive techniques, tensions remain,36 including: Sharia-based punishments that the international rights regime condemns as cruel and inhumane, such as cutting off the hands of thieves or stoning to death adulteresses; the status and treatment of women with respect to divorce, property rights and political participation; and most fundamentally the clash between theocracy and (liberal) democracy.

Religion more generally remains a major source of contention, in part because of the inevitable tension between the freedom to practice one's religion and the freedom of others to practice their religion or to enjoy other freedoms, and in part because of the liberal bias of the human rights movement, which has resulted in the human rights movement incorporating the conflicts and tensions over religion within liberalism.37 These tensions are most evident in the Rawlsian attempt to exclude private religious views from the public sphere as the price for being able to generate an overlapping consensus.38 The parallel at the international level occurs when rights bodies view with suspicion or dismiss attempts to justify particular practices based on religious reasons or by appeal to authoritative religious sources such as the Koran.39 More generally, critics of various religious persuasions have argued for a broader-based conception of rights, not founded on secular liberalism, which builds on a more inclusive spiritual and moral worldview drawn from the world's great religions, including Buddhism, Islam and Daoism.40

One of the most direct threats to the movement to date came when increasingly assertive Asian governments, buoyed by years of economic growth, issued the 1993 Bangkok Declaration challenging the universalism of human rights and criticizing the international human rights movement for being Western-biased. Although it did not deny outright the universality of all rights, the Bangkok Declaration asserted that human rights must reflect the particular economic, social, political, legal and historical circumstances of particular countries at a particular time.41 The ensuing debates over "Asian values"-or its more recent politically correct offspring "values in Asia"-raised a wide range of issues.42 Some of the main points of contention were the compatibility of Confucianism, Buddhism and Islam with liberal democracy and human rights; the relationship between rights, responsibilities and duties; and how to weigh rights against competing interests, including other rights claims, and balance the needs of individuals against the interests of the group and society. Demonstrating the need to avoid simplistic constructs of "the West" as well as "the East" or "Asia," many of the communitarian criticisms of the liberal biases of the human rights movement and the privileging of personal freedom and autonomy over social solidarity and stability paralleled communitarian critiques in the West.43

Another major area of dispute centers on economic issues. The widening gap between the rich and poor both within countries and among states has produced a fault line that runs along the NorthSouth, developed-developing country axis. Emphasizing the right to development, the Bangkok Declaration called for international cooperation to narrow the income gap and eliminate poverty, which it rightly declared to be major obstacles to the full enjoyment of human rights.44 The Vienna Declaration was even more explicit: "The World Conference on Human Rights reaffirms that least developed countries committed to the process of democratization and economic reforms, many of which are in Africa, should be supported by the international community in order to succeed in their transition to democracy and economic development."45 Within both developed and developing countries,46 growing income disparities have led to a revaluation of the international rights movement's privileging of civil and political rights over economic rights and challenges to the distinction between negative and positive rights.47 Meanwhile, the success of non-democratic and/or non-liberal Asian states highlighted the issues of whether authoritarian or democratic regimes are better able to achieve sustained economic growth and whether certain Asian versions of capitalism are superior to the varieties of capitalism found in Western liberal democracies.48

Still another fault line runs along gender lines. Feminists claim that international law in general and the human rights movement in particular are male-centric and discount the needs and interests of women.49 To further complicate matters, there are also significant divisions within feminist ranks. Women's rights activists in non-Western countries have accused Western rights activists of ethnocentricism, paternalism and racism.50 For instance, in the heavily politicized debates over female circumcision, the Association of African Women for Research and Development have complained that Western rights activists are "totally unconscious of the latent racism" in their campaign and that they have forgotten that solidarity with women of different races and different cultures can only occur if there is mutual respect.51 Women's rights have been among the most contentious of all human rights issues, as evidenced by the number of reservations to key provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).52 Women's rights have encountered serious difficulties in implementation for a variety of reasons. Sociological explanations emphasize that U.N. bodies and other international rights organizations are dominated by men who presumably will be less sensitive to or concerned with issues such as sexual discrimination or harassment, domestic violence or wartime rape.53 Another explanation places the blame on the liberal distinction between the public and private spheres and the emphasis on civil and political rights over economic, social and cultural rights. While these explanations all have merit, the main obstacle is that gender issues are deeply embedded in a society's traditions and lifeforms, and thus require a holistic approach involving fundamental changes in social norms and structural changes in the economic, political and legal orders.54

These and other fault lines have become readily apparent as the human rights movement has gained in power and attempted to enforce increasingly specific interpretations of rights. The growing power of the international human rights movement has led to a backlash as countries have begun to feel the movement's bite. Whereas in the past, powerful Western countries raised little objection to the human rights movement as long as the movement concentrated on exporting liberal values and neo-liberal economic policies to developing countries, even powerful countries such as the United States now worry that the human rights movement is encroaching too far on state sovereignty.55 In response, some member states, again including the United States, regularly make reservations when acceding to rights treaties that undermine key provisions or prevent the treaty from having much if any domestic impact.56 In other cases, they simply refuse to sign or ratify important treaties.57 Some states have taken the dramatic and unprecedented step of withdrawing from rights treaties rather than conform their policies to what they consider to be the unreasonable demands of international rights bodies out to impose one-size-fits-all solutions on countries whose contingent national circumstances render compliance impossible.58

Rule of law may seem to provide a bridge across the various fault lines. Islamic states from Egypt to Malaysia have endorsed rule of law.59 Asian governments including the socialist regimes in China and Vietnam that regularly object to the strong-arm politics of the international human rights regime have welcomed technical assistance aimed at improving the legal system and implementing rule of law.60 Communitarians and liberals alike can find much of value in rule of law. Developing states that emphasize the right to development see rule of law as integral to development. Feminists in the United States and elsewhere have taken advantage of the legal system to push for enforcement of their rights, however they are interpreted. Perhaps then there is something to be gained from focusing on the common ground provided by rule of law as a way of restoring goodwill and recapturing the forward momentum lost in recent years by the increasingly contentious debates that have split the international rights community.

Closer scrutiny reveals both good news and bad news. A thin rule of law is universally-or nearly universally61-valued and may be useful in protecting rights. However, a thin rule of law is consistent with considerable injustice and the abuse of human rights and allows such wide variations in institutions and outcomes that appealing to the requirements of a thin rule of law will not provide useful guidance on many important issues. On the other hand, disputes over competing thick conceptions of rule of law give rise to many of the theoretical, normative and political conflicts just discussed, and thus undermine hopes that rule of law will provide a robust normative basis for bridging substantive differences on rights issues.

A. Rule of Law to the Rescue? The Contested Nature of Rule of Law

Despite its nearly universal appeal, rule of law, like human rights, is an essentially contested concept. It means different things to different people and has served a wide variety of political agendas from Hayekian libertarianism,62 to Rawlsian social welfare liberalism,63 to Lee Kuan Yew's soft authoritarianism,64 to Jiang Zemin's statist socialism,65 to a Sharia-based Islamic state.66 That is both its strength and its weakness. That people of vastly different political persuasions all want to take advantage of the rhetorical power of rule of law keeps it alive in public discourse,67 but it also leads to the worry that it has become a meaningless slogan devoid of any determinative content.68

At its most basic, rule of law refers to a system in which law is able to impose meaningful restraints on the state and individual members of the ruling elite, as captured in the rhetorically powerful, if overly simplistic, notions of a government of laws, the supremacy of the law and equality of all before the law. Beyond these threshold requirements, conceptions of rule of law can be divided into two general types, thin and thick. A thin conception stresses the formal or instrumental aspects of rule of law-those features that any legal system must possess to function effectively as a system of laws, regardless of whether the legal system is part of a democratic or non-democratic society, capitalist or socialist, liberal or theocratic.69 Thus, laws must be general, public, prospective, clear, consistent, capable of being followed, stable, impartially applied and enforced.70 Moreover, laws must be reasonably acceptable to a majority of the populace or people affected (or at least the key groups affected) by the laws.71

That laws be reasonably acceptable to the majority of" those affected by them does not mean that the laws are necessarily "good laws" in the sense of normatively justified. The majority may very well support immoral laws. Even in countries known for rule of law, rule of law has existed side by side with great injustice, including: slavery, racism, apartheid, patriarchy, colonialism, capitalist exploitation and callous disregard for the suffering of others, not to mention unspeakable cruelty to animals and environmental policies that leave future generations to clean up the mess created by today's consumers. Because a thin rule of law is consistent with great evil, many scholars and rights activists argue that rule of law requires "good laws." On this view, rule of law requires laws that are grounded in some normative foundation that transcends the legal system itself. In the past, divine law or natural law provided the foundation; today, the more secular ideology of democracy and human rights provides the foundation for many people. The attempt to remedy the normative shortcomings of thin theories by incorporating particular conceptions of rights and other features of political morality transforms thin conceptions of rule of law into thick ones.

Thick conceptions begin with the basic elements and purposes of a thin conception but then incorporate elements of political morality such as particular economic arrangements (free-market capitalism, central planning, Asian developmental state or other varieties of capitalism), forms of government (democratic, socialist, soft authoritarian, theocratic) or conceptions of human rights (libertarian, classical liberal, social welfare liberal, communitarian, compassionate conservative, "Asian values," Buddhist, Islamic, etc.). Thus, a liberal democratic version of rule of law incorporates free market capitalism (subject to qualifications that would allow various degrees of "legitimate" government regulation of the market), multiparty democracy in which citizens may choose their representatives at all levels of government and a liberal interpretation of human rights that generally gives priority to civil and political rights over economic, social, cultural and collective or group rights. Liberal democratic rule of law may be further subdivided along the main political fault lines in Europe and America: a libertarian version that emphasizes liberty and property rights, a classical liberal position, a social welfare liberal version, and so on.

The wide variety of political beliefs and conceptions of a just sociopolitical order around the world gives rise to multiple, competing thick conceptions of rule of law. In China, for example, there is currently support for four dominant models: statist socialist, neo-authoritarian, communitarian and liberal democratic.72 Statist socialists endorse a state-centered socialist rule of law defined by, inter alia, a non-democratic system in which the Chinese Communist Party plays a leading role and an interpretation of rights that emphasizes stability, collective rights as well as, if not over, individual rights and subsistence as the basic right rather than civil and political rights.

There is also support for various forms of rule of law that fall between the statist socialism type and the liberal democratic version. For example, there is some support for a democratic but non-liberal (New Confucian) communitarian variant built on market capitalism, perhaps with a somewhat greater degree of government intervention than in the liberal version; some genuine form of multiparty democracy in which citizens choose their representatives at all levels of government; plus an "Asian values" or communitarian interpretation of rights that attaches relatively greater weight to the interests of the majority and collective rights as opposed to the civil and political rights of individuals.73

Another variant is a neo-authoritarian or soft authoritarian form of rule of law that, like the communitarian version, rejects a liberal interpretation of rights but, unlike its communitarian cousin, also rejects democracy. Whereas communitarians adopt a genuine multiparty democracy in which citizens choose their representatives at all levels of government, neo-authoritarians permit democracy only at lower levels of government or not at all. For instance, one prominent PRC political scientist has advocated a "consultative rule of law" that eschews democracy in favor of single-party rule, albeit with a redefined role for the Party and more extensive, but still limited, freedoms of speech, press, assembly and association.74

There is also support in India, Thailand, Indonesia and the Philippines for what might be called a developmental, redistributive justice model of rule of law. This form, with different variants in each of the countries, emerges out of a fundamental difference between these countries and economically advanced countries: the brutal reality of crushing poverty combined with severe disparities in income.75 Observing that nearly sixty percent of the nation's material resources are in the hands of some twenty percent of the population in Thailand, Vitit Muntarbhorn warns that this lack of equity "has dire consequences for the Rule of Law and human rights, precisely because the inequity may breed violence, if not disrespect for the law." He asks, somewhat plaintively, "How can the Rule of Law help to foster equity and social justice?"76

Substantively, the developmental-redistributive model of rule of law has two main planks. The first is an international dimension that highlights the radical disparity between North and South and emphasizes the right of development, debt forgiveness and the obligation of the North/developed countries to aid the South/developing countries. The second plank is a domestic one and reflects the particular circumstances of each state, though all are united in emphasizing social and economic rights and the need to do more to protect the most vulnerable members in society.

In Thailand, concerns for redistributive social justice are found in the government's policies to achieve sustainable development, including rural development. Thus, the government has adopted a series of populist policies, including a universal health care scheme, a development fund for each village and debt moratorium for farmers.77 In the Philippines, one catches glimpses of the alternative redistributive conception in the way rule of law is frequently linked to social and political philosophies that promise justice, social welfare and People Power based democracy. Whereas Western countries on the whole have been reluctant to assume obligations to allocate sufficient resources to satisfy economic, social and cultural rights,78 the 1987 Filipino constitution contained a long list of open-ended "directive principles" that reflect the tendency of the activist drafters of the constitution to codify "new" rights to education, food, environment and health. 9

As in the Philippines, the Indian constitution codifies both civil and political rights and social and economic rights. However, whereas the former are considered fundamental and justiciable, the latter are considered progressive. Nevertheless, aggressively activist Indian courts have favored interpretations that foster social and economic rights, giving them an "indirect justiciability."80 The Indian constitution also seeks to redress historical imbalances that have led to the subjugation of some groups, and it reaches beyond the state to private groups and social practices. It thus outlaws in the name of equality caste-based practices of untouchability. A system of reservations or quotas ensures some representation for disadvantaged groups including the poor. In addition, the constitution enshrines a policy of affirmative action that creates a two-track system obligating the state "to specifically reform the 'dominant'/'majoritarian' 'Hindu' religious traditions in a fast forward mode, while leaving the reform of 'minority' communitarian/religious traditions to slow motion, minuscule change."81 To ensure that these polices are implemented, the constitution creates a number of federal agencies to protect and promote the rights of disadvantaged minorities.

Rights activists generally prefer thick conceptions of rule of law to thin ones. In authoritarian and repressive regimes, thick theories allow reformers to discuss certain controversial political issues under the seemingly more neutral guise of a technical discussion of rule of law. For instance, in China, legal reformers have used a broad conception of rule of law as a means of discussing democracy, separation of powers and various human rights issues from free speech to arbitrary detention.82 More generally, rights activists prefer thick theories because they provide rhetorical support for their particular political agenda.

The unfortunate result, however, is that all too often parties appeal to rule of law, implicitly if not explicitly invoking a particular thick conception of rule of law, to criticize whatever law, practice or outcome does not coincide with their own political or normative beliefs. For example, in Singapore, where the legal system is regularly ranked as one of the world's best in terms of rule of law,83 liberal critics of the government's communitarian policies have invoked rule of law to object to the lack of (in their view) adequate workers' rights legislation, limitations on the right of peaceful demonstration and a regulatory framework that restricts the freedom of the local press.84

Contrast such complaints with the following. Two government agencies issue conflicting regulations, and there is no effective legal mechanism to sort out the conflict. A suspect is entitled to a lawyer according to law, but in practice the authorities refuse to allow him to contact his lawyer. Your dispute with your insurance company regarding payment for hospital bills incurred as a result of a car accident remains pending in court after seven years due to judicial inefficiency. The rich and powerful are regularly exempted from prosecution of certain laws whereas others are prosecuted in similar circumstances.

The second set of issues invokes thin rule of law concerns. In contrast, the first set involves substantive issues that divide adherents of competing political philosophies and define different political factions. Articulating different thick conceptions makes it possible to relate political and economic problems to law, legal institutions and particular conceptions of a legal system. Moreover, by highlighting differences in viewpoints across a range of issues, thick theories bring out more clearly what is really at stake in many disputes. However, using a particular thick conception of rule of law to malign others who do not share one's political philosophy, and hence one's thick conception of rule of law, leads to the debasement of rule of law and the view that it is just a meaningless slogan devoid of content.85

Proponents of thin theories protest that thick theories are based on more comprehensive social and political philosophies, and thus rule of law loses its distinctiveness and gets swallowed up in the larger normative merits or demerits of the particular social and political philosophy. As Joseph Raz observes,

If rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy. But if so the term lacks any useful function. We have no need to be converted to the rule of law just in order to believe that good should triumph. A non-democratic legal system, based on the denial of human rights, of extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies.86

Limiting the concept of rule of law to the requirements of a thin theory makes it possible to avoid getting mired in never-ending debates about the superiority of the various political theories all contending for the throne of justice. Conversely, by incorporating particular conceptions of the economy, political order or human rights into rule of law, thick conceptions decrease the likelihood that an overlapping consensus will emerge as to its meaning. Thick conceptions that require laws be good laws must specify what the good is. However, given the fact of pluralism,87 thick conceptions must confront the issue of whose good and whose justice. Liberals, socialists, communitarians, neo-authoritarians, soft authoritarians, new conservatives, old conservatives, buddhists, Daoists, Neo-Confucians, new Confucians and Muslims all differ in their visions of the good life and on what is considered just, and hence what rule of law requires. These categories are themselves exceedingly broad. There is considerable diversity on many issues within each one.

In short, appealing to thick conceptions of rule of law that draw on particular conceptions of the economy, political order, gender roles, social justice and human rights brings the disputes that divide the human rights community under the umbrella of rule of law. Predictably enough, non-liberals have accused proponents of a liberal democratic conception of rule of law of the same kind of ethnocentricism, arrogance and imperialism that they see in the human rights movement.88 The tendency to equate rule of law with liberal democratic rule of law has led some commentators to portray the attempts of Western governments and international organizations such as the World Bank and IMF to promote rule of law countries as a form of economic, cultural, political and legal hegemony.89 Critics claim that liberal democratic rule of law is excessively individualist in its orientation and privileges individual autonomy and rights over duties and obligations to others, the interests of society, social solidarity and harmony.90 In Asia, this line of criticism tracks the heavily politicized debates about "Asian values," and whether democratic or authoritarian regimes are more likely to ensure social stability and economic growth discussed earlier. It also taps into broader post-colonial discourses and conflicts between developed and developing states, and within developing states between the haves and have-nots over issues of distributive justice.91 In Islamic countries, the debate takes the form of disputes over the role of religion, Sharia law, the rights of women and a host of other specific rights issues.

B. The Inability of Rule of Law to Provide Effective Guidance on Specific Issues

For all of its rhetorical appeal, rule of law, whether thick or thin, cannot provide much guidance with respect to many crucial issues that affect human rights. Appeals to rule of law alone will not shed much light on such substantive issues as what is a proper time, place and manner restriction on free speech, when a particular restriction of freedom of assembly is necessary for democratic order, or whether the 9/11 attacks on the United States constituted a threat to "the life of the nation" under Article 4 of the ICCPR.92

The minimal requirements of a thin rule of law are compatible with considerable diversity in institutions, rules and practices. For example, the way powers are distributed and balanced between the executive, legislature and judiciary varies widely in countries known for rule of law.93 Constitutional review is conducted by a variety of entities that enjoy different powers.94 The nature and degree of judicial independence, as well as the manner in which it is achieved, also vary. In some cases judges are appointed (through a variety of mechanisms), and in some cases they are elected. Nor will appeals to rule of law alone put an end to debates about what type of theory of adjudication is best-strict interpretation, purposive or Dworkin's make-law-the-best-it-can-be approach.95

Institutional choices are often highly path-dependent: the initial choice of institutions and the way they operate and evolve over time is influenced to a large extent by a host of contingent, context-specific factors. Seemingly similar institutions, sometimes transplanted from one system to another, are likely to function differently from place to place. Thus, to assess the appropriateness and effectiveness of institutions requires an evaluation of their results in the particular context. For instance, all states preclude some political and administrative acts from judicial review. Such decisions often include certain decisions by police regarding whom to arrest and by prosecutors regarding whom to prosecute; decisions regarding national defense, war and covert operations; and some highly technical issues left to administrative agencies. Rule of law therefore cannot require that every decision be subject to judicial review or else no country's legal system would merit the rule of law label. Nevertheless, rule of law does require some limits on discretion and, arguably, the ability to challenge most government decisions in some way, whether through judicial review, internal administrative mechanisms or the electoral process whereby citizens can vote governments that misuse their power out of office. But exactly what is required is far from clear.

Singapore, for instance, has a number of laws that allow for the restriction of individual liberties without judicial review. The Maintenance of Religious Harmony Act "allows the minister to issue preemptive 'restraining orders' to 'gag' politicians or religionists thought to be mixing a volatile cocktail of religion and extremist politics, which could escalate racial-religious tensions."96 The government argues that given the sensitive nature of religion in multiethnic Singapore, issues involving religious harmony are crucial for the survival of the nation, and better left to the executive than to the judiciary or the legislature. The executive's decision is subject to review by the Elected President, and advisory councils composed of bureaucrats or religious and civic leaders are sometimes consulted to further diminish the dangers of a concentration of unchecked powers in the executive's hands. Nevertheless, liberal critics contend such justifications and mechanisms are inadequate and call for a more robust judicial review that places more emphasis on the rights of individuals to speak and to practice their religion freely.97

Cases involving the declaration of national emergency and derogation of rights raise equally difficult issues. While the danger of abuse of power is apparent, advocates of different thick conceptions are likely to disagree over when national emergencies should be declared, who has the right to declare them and what type of review, if any, there should be. In Malaysia, the King, the titular head of the executive, acts on the advice of the Cabinet in deciding whether a state of emergency exists.98 Parliament, not the judiciary, has the power to review the decision and overturn it. In the United States, the President has claimed broad powers for the executive in deciding how best to deal with terrorists and enemy noncombatants, much to the dismay of Civil Libertarians who want a greater role for the legislature and the courts in checking and reviewing executive decision-making powers.99

Appealing to rule of law will not suffice to sort out these issues. Both sides can appeal to their own particular thick conceptions, and a thin conception does not require that all important decisions be left ultimately to the courts or that the court adopts a particular interpretive practice. In any event, concluding that a practice or decision is consistent or inconsistent with a thin rule of law or a particular thick conception of rule of law is not the end of normative debate. Rule of law is only one of many social values and only part of a comprehensive political philosophy. Thus, in some cases the values served by compliance with rule of law may be overridden by other important social values. This is most notable in recent discussions that the rule of law does not pertain to emergency situations.100 However, it arises in many other contexts involving resistance to narrowly legal but massively unjust laws and regimes. As the heroic struggles of Muhammad Ali, Martin Luther King, Mahatma Gandhi, Nelson Mandela and countless less famous individuals show, the rule of law virtues of predictability and certainty may at times need to give way to higher moral principles, considerations of equity, justified civil disobedience or even mass illegalities and populist movements that seek to overthrow the political system.

Ritualistic invocation of rule of law, then, will not put an end to the conceptual and normative debates that have undermined the universality of the human rights movement. Notwithstanding debates over these deep issues, perhaps rule of law may still be useful in practice. Therefore, we must still consider the extent to which the renewed attention to rule of law will help address the current serious shortcomings with respect to implementation of human rights.

II. THE IMPLEMENTATION OF HUMAN RIGHTS AND THE PRACTICAL LIMITATIONS OF RULE OF LAW: EMPIRICAL ISSUES

Quantitative studies have shown that the protection of rights is influenced by, among other things, and in roughly descending order of importance: economic development, with a higher level of development associated with better protection of rights; international or civil wars, with war leading to more violations of rights; political regime type, with democracies protecting rights better than authoritarian or military regimes; regional effects, with Northern Europe and North America outperforming other regions, and with "region" often serving as a proxy for religion and culture and correlated with economic development and regime type; population size, with larger populations leading to higher rates of violation; and colonial history, with British colonialism linked to better rights protection.101 Interestingly, ratification of treaties does not translate into better protection for human rights, and may even have a negative effect, at least in the short term.102

Only recently have empirical studies begun to test the relationship between "rule of law" or other legal system features and the protection of different types of rights.103 The neglect of law may reflect the skeptical view that human rights law in particular and international law more generally are mere window dressings. However, as the human rights movement has become more powerful, scholars have become more interested in testing the impact of law. The few studies available provide some limited general support for the thesis that rule of law and judicial independence help protect human rights.104

However, the studies raise a number of concerns regarding the definition and measurement of rule of law,105 the range of rights tested, the ability to control for other factors and sort out direct and indirect effects and the usefulness in identifying specific features of the legal system that are most important for rights protection.

What appears to be the only study to date to test directly the relationship between "rule of law" and rights relied on a rule of law index that drew on subjective perceptions of the legal system.106 The index is constructed from sixteen different sources that measure a variety of factors: trust in, and the legitimacy of, the legal system; crime, including violent crime, kidnapping of foreigners, organized crime, financial crime, money laundering and insider trading; property rights, including the enforceability of government contracts and private contracts, the enforceability of judgments and the protection of intellectual property rights; institutional factors such as the independence of the judiciary (influence of government, citizens and firms on the courts) and an effective administrative law regime whereby parties can challenge government decisions; and the quality of the legal system, including the fairness, speediness and affordability of the judicial process, the honesty of judges and the quality of the police.

Relying on subjective responses to questionnaires by different people in different countries gives rise to concerns about consistency and ideological bias.107 A more fundamental issue is whether the criteria that form the subject matter of the various surveys adequately capture rule of law.108 On the whole, the indicators in the World Bank index reflect many of the procedural and institutional aspects of a thin rule of law. To be sure, perceptions about property rights, including intellectual property rights, or the independence of the courts may be influenced by one's ideological beliefs and may be tied to political and economic beliefs that form the basis for thick conceptions of rule of law. However, the index for the most part avoids the circularity problems that would arise if one incorporated into the index democracy and particular interpretations of contested economic, political or rights issues that define thick conceptions of rule of law.

One major disadvantage with such a broad index, however, is that it obscures which legal system features are related to better human rights performance. The utility of such aggregate rule of law studies for policymakers is therefore limited because the studies do not shed light on the particular institutional arrangements, laws or legal practices that are necessary or beneficial for the protection of human rights.

Some studies have tried to focus on more specific issues such as particular constitutional provisions or institutions, with mixed results.109 One study relying on data from just thirty-nine countries from 1948-1982 found that the constitutional guarantee of freedom of the press and provisions regarding a state of emergency were associated with less censorship and fewer restrictions on civil and political rights, while a constitutional restriction on free press produced the opposite result.110 However, a larger study found that constitutional guarantees of speech, assembly, association, religion and the press, as well as of the right to strike, were not associated with better protection of personal integrity rights, although a constitutional protection of freedom of the press was associated with fewer violations during times of civil war. Surprisingly, a ban on torture and the provision of a habeas corpus right were statistically significant but associated with more, violations. In contrast, provisions for public and fair trials were statistically significant and associated with fewer violations.111 However, public and fair trials were not nearly as important as the impact of a large population, domestic and international war or democracy.

A third study sheds some light on these apparent inconsistencies by distinguishing between levels of threat. The study found that at low political threat levels, constitutional provisions regulating the declaration of a state of emergency and derogation of civil and political rights had no effect. However, at mid to high levels, such provisions may actually be harmful because they provide the regime with a legitimate basis for declaring an emergency and derogating from rights. On the other hand, such prohibitions are likely to lead to fewer violations during extreme cases of civil war.112

Still another study adopted a more institutional approach, testing the effects of codification of a right in the constitution, judicial independence, federalism, separation of powers and the relative number of lawyers on the protection of political rights and the right against search and seizure.113 The study found that judicial independence is significant with respect to the protection of political rights and search and seizure even after controlling for wealth and other factors. The number of lawyers was significantly associated with greater protection of political rights, though not significant with respect to protection against search and seizure. However, federalism, separation of powers and constitutional provisions on search and seizure were not significant.

While the attempt to disaggregate rule of law to test which elements are most important in what circumstances to the protection of which rights is a worthwhile endeavor, the approach is likely to produce weak and inconsistent results because of the wide variation among countries on key legal institutions and practices such as separation of powers, constitutional review, judicial review of executive power, judicial independence, the way judges are appointed, the tenure and qualifications of judges and so on.114 A cursory glance around the globe is sufficient to demonstrate that countries known for rule of law differ dramatically in each of these areas and that what works in one place may not work in another.

Another problem with most of the legal system studies so far is that they have focused on physical integrity rights or relatively easy to monitor rights such as search and seizure. However, the relationship between rule of law and other "rights" is likely to be more difficult to measure and to explain. Cultural rights such as the right of minority groups to use their own language or affirmative action policies for members of particular groups are difficult to quantify. The theoretical link between rule of law and such rights is also murky. For example, whether a country should set aside a quota of commercial contracts or seats in parliament for a particular minority group is heavily dependent on the particular circumstances of the country.115 Appeal to thin rule of law principles will rarely if ever be determinative.

Economic and social rights are generally not justiciable or are only partially justiciable in most countries. To be sure, governments might provide a variety of welfare benefits, including food and shelter, medical care and access to education. But citizens generally do not have the right to sue the government for such benefits in court.116 It is possible that an equity-minded judiciary might help alleviate extreme poverty and promote social justice by overturning unjust laws that favor the rich or that impose undue hardships on the poor. Thin rule of law principles, however, would require in most cases that judges apply the laws passed by the legislature and set out in the constitution, even if the judges themselves believe the laws are inequitable. Arguments about how activist the judiciary should be and the proper method and principles of constitutional interpretation cannot be settled by appealing to the requirements of a thin rule of law alone and will turn in part on one's belief about judicial competence. For instance, attempts by activist judiciaries to address social inequities by interpreting economic rights provisions broadly have led to complaints that rule of law is being undermined in India and the Philippines. While such disputes also occur in the context of interpreting broad clauses regarding civil and political rights, they often give rise to additional concerns about judicial competence in that they involve resource allocation decisions arguably best left to the legislative and executive branches.117

Quantitative studies have yet to make much headway in the complicated task of sorting out the direct and indirect effects of rule of law. Rule of law and economic development are closely related,118 as are economic development and human rights performance.119 Indeed, as the following tables graphically depict, wealth is highly correlated with social and economic rights (r=.92);120 women's rights, as measured by the Gender Developmental Index (r=.93);121 good governance indicators, such as government effectiveness (r=.77);122 rule of law (r=.82); control of corruption (r=.76);123 civil and political rights (r=.62);124(1) and even physical integrity rights, though to a lower degree (r= -.40). As countries become wealthier, they generally protect all rights better. Thus, to compare the performance of a high income country such as the United States to a lower middle income country such as China or a low income country such as Sudan makes about as much sense as comparing a piano to a duck.

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TABLE 1. WEALTH EFFECT (GDP) ON RIGHTS PERFORMANCE125

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TABLE 2. CORRELATION OF WEALTH AND MEASURES OF DEVELOPMENT

The high correlation between wealth and rule of law, and between wealth and virtually every type of right and indicator of well-being, suggests that wealth rather than rule of law is the more important factor in rights performance. While this has yet to be demonstrated statistically, it makes intuitive sense in that it is much easier to come up with plausible explanations of how wealth leads to better rights performance than it is to explain how rule of law leads to better rights protection, particularly for non-justiciable social and economic rights. Wealthier countries can afford better medical care, better education and better sanitation systems. Affluence reduces the intensity of distributional conflicts by increasing the resources available for redistribution and decreasing the number of people at or below the poverty line. Development increases the ranks of middle class who seek to protect their growing property rights through political channels, including the electoral process, thus leading to stronger civil and political rights. Citizens of rich states are less likely to take to the streets to protest government policies, thus decreasing the threats to governments that result in physical integrity violations or curtailments of civil and political liberties.

However, even assuming wealth is the more important factor in explaining rights performance, rule of law may have some independent direct positive impact as well.126 Moreover, because rule of law appears necessary, though not sufficient, for sustainable growth, efforts should also be made to promote rule of law as an indirect way of improving rights protection.

To be sure, wealth is not the only factor that affects rights performance or even the most determinative factor for all rights in all cases. The relationship between personal integrity rights and GDP is weaker than for other rights because of continued police violence and other acts classified as torture even in rich countries. It is also weaker because rich countries also react to war, terrorism and political stability by limiting civil and political rights and detaining and interrogating suspects in ways that are considered arbitrary detention or torture under international human rights standards (or at least may be so perceived by survey respondents). Moreover, some countries exceed expectations relative to their income level while others fall far short.127 Distribution of wealth also matters: some countries are more egalitarian than others, with serious consequences especially for the most vulnerable in society.128 There is also some regional variation, particularly on voice and accountability, reflecting different political regimes and value structures and, in physical integrity rights, reflecting more wars and political instability in some regions.129 The rights performance of reasonably wealthy countries may deteriorate rapidly because of war, economic stagnation, natural disasters or problems like HIV/AIDS.

Even bearing in mind such qualifications, while money may not be able to buy happiness, it does generally seem to buy a longer life, better education, more health care, better governance, more gender equality and even more civil and political rights.

III. RULE OF LAW, ECONOMIC GROWTH AND HUMAN RIGHTS: THE LIMITS OF ALTRUISM AND OTHER OBSTACLES

One of the main motivating forces behind the turn toward rule of law has been the belief that legal reforms are necessary for economic development. A 1997 World Bank report, for instance, claimed that "countries with stable government, predictable methods of changing laws, secure property rights, and a strong judiciary saw higher investment and growth than countries lacking these institutions."130

Notwithstanding theoretical arguments for and against the claim that rule of law contributes to economic development,131 the empirical evidence is surprisingly consistent and supportive of the claim that implementation of rule of law is necessary, though by no means sufficient, for sustained economic development. A number of longterm, multiple-country empirical studies have shown rule of law to be positively correlated with growth. Robert Barro analy/ed data from eighty-five countries for the periods 1965-1975, 1975-1985 and 1985-1990.132 He tested the impact of a number of independent variables, including rule of law.133 His rule of law index was based on International Country Risk Guide (ICRG) survey data compiled from the subjective responses of businesspersons regarding law and order. The law subcomponent assesses the strength and impartiality of the legal system, and the order subcomponent assesses the popular observance of law. Higher scores indicate sound political institutions, a strong court system and provisions for an orderly succession of power. Lower scores indicate a tradition of dependence on physical force or illegal means to settle claims. Barro's regression analysis found that an improvement in one rank in the zero to six rule of law index raised growth rates by 0.5%.134

A recent study found that while democracy and rule of law are both related to higher GDP levels, the impact of rule of law is much stronger.135 The study also found that trade openness was good for rule of law but had a negative impact on income levels and democracy. Conversely, income levels had a small positive impact on openness, while democracy and rule of law had a negligible impact on openness.136

Other studies have found that clear and enforceable property rights are positively correlated with growth.137 Knack and Keefer relied on both the ICRG and the Business Environmental Risk Intelligence (BERI) surveys. The BERI survey does not directly ask about rule of law but includes questions about contract enforceability, the likelihood of nationalization, infrastructure and bureaucratic delays. Knack and Keefer conclude that institutions that protect property rights are crucial to economic growth and investment and the effect of such institutions continues to exist even after controlling for investment.

In a somewhat broader study, Clague, Knack, Keefer and Olson tested growth rates against the BERI standards, the contract-intensive money ratio (CIM), which is the ratio of non-currency money to total money supply,138 and the aggregate ICRG index, which is a composite of the indexes for the quality of the bureaucracy, corruption in government, rule of law, expropriation risk and the risk of government repudiation of contracts. Higher ICRG, CIM and BERJ scores were associated with higher annual per capita growth rates, even in less developed countries.139

Another study based on the ICRG showed that rule of law is an important factor in determining the size of capital markets (both debt and equity) and that improvements in rule of law are associated with more domestically listed firms and initial public offerings per capita, a greater ratio of private sector debt to GNP and a higher amount of outsider participation in a country's capital markets.140 In a similar vein, Ross Levine found that countries that give a high priority to creditors receiving the full present value of their claims in bankruptcy or corporate reorganizations and in which the legal system effectively enforces contracts generally have more developed financial intermediaries and higher growth rates.141 Moving a country from the lowest quartile of countries with respect to the legal protection of creditors to the next quartile translates into a twenty-nine percent rise in financial development, which increases growth by almost one percentage point a year.

Still another study of seventy countries found that the "efficiency and integrity of the legal environment as it affects business, particularly foreign firms," was positively and significantly correlated with economic growth, even controlling for GDP per capita. It also found that, contrary to the speculations of some theoreticians that corruption might increase economic growth, corruption lowers private investment, thereby reducing growth rates.142

Country and regional studies add further support. In Russia, privatization in the absence of rule of law led to widespread looting and diversion of state assets into private hands.143 In retrospect it is clear that Russian institutions were insufficiently developed to carry out massive privatization and ensure the smooth operation of capital markets. Economic reforms were undermined not only by weak courts but also by weak supporting institutions. Russia's credit rating services, securities regulators, accountants and legal profession were simply not up to the demands of a modern economy.144

Asia is often considered to be an exception to the general rule requiring rule of law for sustained economic growth. However, the role of law in economic development in Asia is often underestimated because of the tendency to elide rule of law with democracy and a liberal version of rights that emphasizes civil and political rights.145 Although the political regimes may not have been democratic and the legal systems may not have provided much protection for civil and political rights in some cases, the Asian countries that experienced economic growth generally scored high with respect to the legal protection of economic interests and the facilitation of economic transactions. A survey of economic freedoms in 102 countries between 1993 and 1995 found that seven of the top twenty countries were in Asia.146 Economic freedoms include protection of the value of money, free exchange of property, a fair judiciary, few trade restrictions, labor market freedoms and freedom from economic coercion by political opponents. Six states-Japan, South Korea, Taiwan, Hong Kong, Singapore and China-experienced sustained growth over 5% for the period from 1965 until 1995.147 The legal systems of these countries measure up favorably in terms of economic freedoms and rule of law, with the possible exception of China. However, even in China, the legal system has improved significantly in the last twenty-five years, particularly in the commercial area, to where it now ranks in the 51st percentile of legal systems on the World Bank's rule of law index.148 In contrast, the legal systems of most of the low growth countries are among the weakest in the region. The following table presents a percentile ranking of Asia's legal systems based on the World Bank's rule of law index for the years 1996 and 2002.149 Countries with better legal systems tend to have higher growth. As noted in Table 2, the relationship between GDP and rule of law is strong in the Asian region (r=.91), compared to r=.81 for all countries.

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TABLE 3. WORLD BANK RULE OF LAW RANKINGS

Despite such consistent and seemingly overwhelming evidence, there are still good reasons to be cautious in reaching broad conclusions about the relationship between rule of law and economic growth150 and between economic growth and better protection of human rights. As discussed above, defining and measuring rule of law remains an issue. Several of the empirical studies relied on subjective measures from three sources: the ICRG and BERI surveys and Kaufmann et al.'s rule of law index. Significantly, most studies to date do not purport to show that rule of law causes development, only that rule of law is positively correlated with economic development.151

Although, in general, a legal system that complies with the requirements of a thin rule of law appears to be necessary to sustain long-term economic growth, rule of law may not be necessary or as significant where a country is very poor and the economy is largely rural-based. A formal legal system that meets the standards of rule of law is costly to establish and operate. In some cases, norms of generalized morality, social trust, self-enforcing market mechanisms and informal substitutes for formal law may provide the necessary predictability and certainty required by economic actors for a fraction of the cost.

Formal and informal law and public and private ordering are complementary in many ways. Family businesses, networks of personal relationships and private orderings exist in all legal systems, although the cultural, political and economic context may vary from one country to the next, leading to differences in the degree of importance or variations in particular practices.152 Since they are not perfect substitutes, each can support and help overcome the weaknesses of the other. In general, however, relationships and social networks, clientelism, corporatism and informal mechanisms for resolving disputes, raising capital and securing contracts are at best imperfect substitutes that often depend on formal legal institutions, which meet the standards of a thin rule of law. Moreover, although these mechanisms are to some extent compatible with rule of law, some are also incompatible in certain ways with rule of law. In addition, once a country reaches a certain level of economic development, the costs of a formal legal system are easier to bear. Indeed, as we have seen, the rule of law is closely correlated with GDP.

Therefore, rule of law is, to some extent, a function of demand. Economic reforms and development enhance the demand for rule of law, while legal reforms and rule of law contribute to economic development. There is both a push and a pull aspect to the process.153

Demand, however, will vary in a society. Most segments of society will benefit directly or indirectly from rule of law, in both economic and non-economic issues. However, some groups, companies or individuals-particularly those that rely on government connections-will be worse off if rule of law is implemented and may oppose reforms. Key actors in the legal system may also have vested interests in the status quo, and thus oppose reforms.

One reason citizens who are not involved in complex economic transactions will benefit from efforts to establish rule of law for commercial purposes is that development of commercial law is likely to have important spillover effects into non-commercial areas. Improving commercial law requires institution-building. A more independent and competent judiciary, a more highly trained legal profession and a more disciplined administration are of benefit to all. Further, institutional development is self-reinforcing. The successful resolution of cases, whether commercial or not, demonstrates the improvements in the legal system, resulting in increased trust in the judiciary and greater demand for the courts to resolve all manner of disputes.

Of course, implementing rule of law and achieving economic growth are complicated tasks. Even those at the center of the so-called new law and development movement acknowledge the persistent difficulty in making the relation between law and development operational and the inability to specify with any reasonable degree of certainty precisely what is required for economic development.154 Chastened by fifty years of failed predictions by leading development pundits and international organizations, the World Bank unveiled a Comprehensive Development Framework, which declares that everything matters: economic policies; political and legal institutions, including rule of law, property rights regimes and security market regulatory mechanisms; human resources; physical resources; geography and culture. The Bank is also careful to point out that this holistic approach is difficult to make operational and is meant as a pragmatic guideline rather than a detailed blueprint. Hedging its bets still further, the Bank takes pains to add that the "mixed record of development programs in the past suggests the need for both caution in application and realism about expected results."155

Nevertheless, these difficulties should not blind us to some important lessons that can be drawn from the experiments in stimulating economic growth during the last several decades. Not surprisingly, economic growth requires good economic policies, including sound macroeconomic policies that keep inflation down and avoid recessions, as well as policies that encourage high savings, provide strong returns to investment, reduce corruption, increase competition and promote education.156 The free flow of information and technology are also important. Political processes that are open, participatory and inclusive are beneficial, as demonstrated by the Asian financial crisis, the looting of state-owned assets in Russia, the problems with crony capitalism in Indonesia and the difficulties in achieving equitable growth in South American countries. Efficient markets depend on a variety of institutions and professions to disseminate information, as well as reduce the costs of doing business and the likelihood of ending up in disputes. A professional corps of accountants, appraisers, credit rating services, securities companies and regulatory systems are all needed. As the empirical studies show, a legal system capable of enforcing contracts, maintaining competition, upholding property rights and protecting investors against excessively predatory governments is also useful. Social capital is also important, including informal mechanisms for resolving disputes as well as cultural norms that allow cooperation and encourage trust, and thus reduce transaction costs. As with rule of law, however, economic reforms are path-dependent and interdependent. Even well-intentioned government leaders will not always be able to translate these broad principles into a coherent reform plan that is feasible given the local conditions and circumstances.157

While international efforts to stimulate growth in developing countries have been successful in some cases, we must face the unpleasant reality that there remains a wide gap between rich and poor countries, with devastating consequences for the rights and well-being of billions of people in poor countries. Every year, more than ten million children die of preventable diseases, some thirty thousand a day.158 In some countries, one-third of children will not live to the age of five.159 Fifty-four countries were poorer in 2000 than in 1990; in twenty-one countries, human development levels decreased; in fourteen, life expectancy for children declined; and in twelve, primary school enrollment dropped in the last decade.160 Excluding China, the number of poor people actually increased by twenty-eight million in the 1990s.161 Although measures of global income equality raise a number of contentious issues, there is a general consensus that the difference between rich and poor countries is so grotesque as to shock the conscience: global income inequality is greater than the gap between rich and poor even in the most inegalitarian countries.162 The income of the richest one percent of the people is greater than the income of fifty-seven percent of the rest of the people in the world, while the income of the twenty-five million richest Americans exceeds that of two billion people.163 Despite such gross inequality, aid from developed countries actually fell in the 1990s. Even with pledges to increase aid by $16 billion, aid from the twenty-two members of the OECD will account for only 0.26% of their gross national income.IM Yet agricultural subsidies in rich countries amount to more than $300 billion, some six times the total amount of official developmental assistance.165

Many failed states, racked by poverty, war and oftentimes poor governance, are simply incapable of implementing rule of law or following sound economic policies. But even functional developing states continue to be frustrated by the lack of concrete efforts to breathe life into the right to development and the structural impediments to growth in the current international economic order. Economic growth, rule of law and better protection of rights across the board will be difficult to achieve without greater redistribution of assets, a reduction in agricultural subsidies, debt relief and changes in the international trade regime, including the intellectual property regime, which provide less developed countries a better chance to compete with wealthier states and afford human rights and legal systems that are rule of law compliant.166

To be sure, providing more aid or redistributing global resources alone will not ensure economic growth, bring about an end to war and human suffering or necessarily lead to the realization of rule of law. In some cases, resources are likely to be squandered by government leaders, misappropriated for personal use or used to wage war on government enemies. Setting right persistently failed states would seem to require regime change, which gives rise to complicated legal, political and practical issues about humanitarian intervention,167 as well as concerns about a global state.168

The well-off citizens of rich and powerful countries do not appear to have the stomach for such radical interventions, or even to support significant redistribution of global resources. Despite globalization and the ready availability of twenty-four-hour news programs that feed us images of massive human rights violations around the clock, we define ourselves not in universal terms as featherless bipeds but in terms of more particular identities that distinguish between us and them. Notwithstanding all of the self-congratulatory talk of moral progress and the universality of human rights, most of us still stand idly by while much of the world's population lives in abject poverty, all too willing to work in unsafe conditions for a fraction of the wages made by their counterparts in developed countries-and, even then, workers in developed countries begrudge them the jobs.169 Our altruism has limits.170 We still want our lattes from Starbucks and our nice houses with plasma televisions while others are starving and living impoverished lives, not only in other countries but right in our own communities.171

On the rare occasion the international community does respond to a humanitarian crisis, the public's attention fades once the immediate emergency is over, perhaps explaining why humanitarian intervention has not led to improvement in human rights in the long term.172 In the need for an immediate response, there is little time to reflect on the structural issues that produce failed states and the extent to which the international economic order is a contributing factor to the crisis. After the crisis passes, life in the developed world returns to normal, while those in the failed state continue to struggle along, often only to experience another crisis several years later.173 In the end, the systemic problems that hinder economic growth in developing countries continue to undermine efforts to promote rule of law and protect human rights.

IV. RULE OF LAW, DEMOCRACY AND HUMAN RIGHTS: ALL GOOD THINGS NEED NOT GO TOGETHER

The relationship between rule of law, democracy and human rights is difficult to sort out conceptually because of the contested meanings and interpretations of each and is difficult to test empirically because of problems in operationalizing and measuring them.174 Many commentators who adopt thick conceptions of rule of law incorporate democracy into the concept of rule of law. Still others would accept that democracy is conceptually distinct from rule of law but maintain that rule of law is not (fully) realizable except in democracies. However, some nondemocratic states do, in fact, seem to have had or to now have legal systems that meet the requirements of a thin rule of law (at least as well as other democratic countries known for rule of law).175

Singapore, for example, has been described as a semi-democracy, a pseudo-democracy, an illiberal democracy, a limited democracy, a mandatory democracy, a "decent, non-democratic regime," a soft authoritarian state and a despotic state controlled by Lee Kuan Yew.176 Critics note that elections are dominated by the People's Action Party (PAP) and opposition is tamed through the use of defamation suits against political opponents, manipulation of voting procedures, gerrymandering and short campaign times. Given the dominance of the PAP, accountability in Singapore is achieved not so much through elections as through other means such as allocating limited participation rights to the opposition, inviting members of the public to comment on legislation and using shadow cabinets where PAP members are asked to play an opposition role.

The primary role of law in Singapore is to strengthen the state, ensure stability and facilitate economic growth.177 Many decisions are left to the state and political actors, primarily the Cabinet headed by the Prime Minister. Civil society is limited and characterized by corporatist relationships between the state, businesses, labor unions and society. Administrative law tends to emphasize government efficiency rather than protection of individual rights. While individual rights are constitutionally guaranteed, they are not interpreted along liberal lines. Lee Kuan Yew and other government officials have invoked Asian values to emphasize group interests over individual interests and to justify limitations on civil and political rights, including limits on free speech, such that citizens are not allowed to attack the integrity of key institutions like the judiciary or the character of elected officials without attracting sanction in the form of contempt of court or libel proceedings. Labor rights are also limited in the name of social stability and economic growth. Rejecting liberal neutrality, the government favors a more paternalistic approach where the state promotes a substantive normative agenda and actively regulates private morality and conduct. The government has appealed to Confucianism to support its paternalistic approach and to promote social harmony and consensus rather than adversarial litigation. On the whole, the judiciary tends to follow the government's lead. Although the reason for that seems to be a genuine congruence of views on the part of most judges rather than overt political pressure on the courts, in some cases judges who have challenged the PAP have been reassigned.178

Despite the limitations on democracy, the use of the legal system to suppress opposition and a nonliberal intepretation on many rights issues, Singapore's legal system is regularly ranked as one of the best in the world. The World Competitiveness Yearbook consistently ranks Singapore first.179 It was ranked in the top 99th percentile on the World Bank Rule of Law Index in 1996 and in the 93rd percentile in 2002. By way of broad comparison, the United States and the average OECD rankings were in the 91st to 92nd percentiles for 1996 and 2002.

Like Singapore, Hong Kong has a well-developed legal system that is largely the product of British colonialism. Until the handover to the People's Republic of China (PRC) in 1997, the system was widely considered to be an exemplar of rule of law, notwithstanding the lack of democracy and a restricted scope of individual rights under British rule. After the handover, the legal system continues to score high on the World Bank's Rule of Law Index, with only a slight drop from 90.4 in 1996 to 86.6 in 2002.

With the change of government, however, has come a different value orientation. Tung Chee-hwa has, on occasion, invoked Asian values, suggesting to some that Hong Kong might be evolving toward a more Singaporean model. Signs of a possible shift include pressure on the media to toe the government's line; limitations on free speech and assembly and, in particular, the requirement that demonstrators obtain prior approval from the authorities; consideration of a bill on religious sects, urged by Beijing, to control Falun Gong, along with the recent conviction of Falun Gong demonstrators; and the brouhaha over regulations, required under Article 23 of the Basic Law, dealing with a variety of potential threats to national security from sedition to disclosure of state secrets, which resulted in some 500,000 people taking to the streets.180 The protesters, some of whom demanded faster democratisation including election of the chief executive in 2007, were also upset by a downturn in the economy and the ineffective governance of Tung.

Singapore and even more clearly Hong Kong show that democracy is not a precondition for rule of law. Among Arab countries, Oman, Qatar, Bahrain, Kuwait and the United Arab Emirates are in the top quartile on the World Bank Rule of Law Index but have a O ranking on the 0-10 point Polity IV Index.

Conversely, just as non-democracies may have strong rule of law legal systems, democracies may have legal systems that fall far short of rule of law. Guatemala, Kenya and Papua New Guinea, for example, all score highly on democracy (8-10 on the Polity IV Index) and yet poorly on rule of law (below the 25th percentile on the World Bank Rule of Law Index).181 In short, rule of law need not necessarily march in lock step with democracy, even if democracy and rule of law generally tend to be mutually reinforcing.182

Nor does democracy necessarily entail better protection of human rights.183 To be sure, many studies using a variety of methods and definitions find that democracy reduces human rights violations.184 However, the studies tend to assume a linear relationship: marginal improvement in democratization leads to a similar improvement in protection of human rights. Yet many qualitative studies have found that democratization has not led to better protection of human rights in the countries studied.185

A number of quantitative studies support the disconcerting results of the qualitative studies by showing that the third wave has not led to a decrease in political repression, with some studies showing that political terror and violations of personal integrity rights actually increased in the 1980s.186 Other studies have found that there are non-linear effects to democratization: transitional or illiberal democracies increase repressive action. Fein described this phenomenon as "more murder in the middle"- as political space opens, the ruling regime is subject to greater threats to its power and so resorts to violence.187 More recent studies have also concluded that the level of democracy matters: below a certain level, democratic regimes oppress as much as non-democratic regimes.188

Democracy consists of different elements, or dimensions, and thus most studies use a composite index. The Polity IV measure, increasingly favored by researchers, is a twenty-one-point scale made up of five components: competitiveness of executive recruitment, competitiveness of participation, executive constraints, openness of executive recruitment and regulation of participation. Other composite measures of democracy include: civil liberties, freedom of press, minority protection and so on. Which elements matter the most for the protection of human rights?189 Is there a sequencing effect that would recommend increasing political participation before increasing constraints on the executive, or vice versa? De Mesquita et al. found that political participation and limits on executive authority are more significant than other aspects but that there is no human rights benefit at all until the very highest levels of political participation and executive constraints are achieved. However, these levels require moderate progress on each of the other subdimensions. In short:

there is no significant increase in human rights with an incremental increase in the level of democracy until we reach the point where executive constraints are greatest and where multiple parties compete regularly in elections and there has been at least one peaceful exchange of power between the parties . . . . Put more starkly, human rights progress only reliably appears to toward [sic] the end of the democratization process.190

This finding is worrisome for human rights. Despite the much vaunted third wave of democratization in the 1980s and 1990s, regimes that combined meaningful democratic elections with authoritarian features outnumbered liberal democracies in developing countries during the 1990s.191

Moreover, even full democratization does not necessarily entail a liberal interpretation of human rights. As discussed previously, many critics object to the liberal interpretation of human rights, which emphasizes individual autonomy and choice at the expense of other values. '92 Conflicting views over how the oftentimes abstract principles set forth in rights documents are to be interpreted arise across a wide range of issues, including the rights of the criminally accused versus the need to protect members of society from crime,193 the rights of women versus traditional norms194 and the scope of legitimate limitations on free speech in the name of national security or social stability.195 Regional variations, even after controlling for wealth and regime type, demonstrate that there are differences in values among the majorities in different countries196 and that such values play a significant role in how rights are interpreted and implemented.197

V. RULE OF LAW AND WAR: AFTER 2000 YEARS NOT QUITE INTER ARMES, SILENT LEGES,198 BUT NOT MUCH BETTER

Former U.N. Human Rights Commissioner Sergio Vieira de Mello eloquently captured the evils of war:

We are living in profoundly challenging times for human rights. On this day, I would like us to think in particular of the countless number of civilians who are living in the midst of war and conflict and who continue to endure atrocities which should outrage the conscience of humanity. Their basic rights, those enshrined in human rights and humanitarian law are denied. . . . [F] or millions of victims of armed conflict, war represents the daily reality. Men and women are killed, maimed, raped, displaced, detained, tortured, and denied basic humanitarian assistance, and their property [is] destroyed because of war. Children are abducted, forcibly recruited into arms, separated from their families, sexually-exploited, suffer hunger, disease and malnutrition, and are unable to go to school. They are not only denied their present, but also their future . . . . The best chance for preventing, limiting, solving and recovering from conflict and violence lies in the restoration and defence of the rule of law. Armed conflict stands as a bloody monument to the failure of the rule of law. We must break the cycle of violence. Where armed repression strips people of their rights and dignity, let those responsible answer under the rule of law.199

War is undeniably a serious threat to individual freedom and rights. However, is rule of law an antidote to war? To what extent can rule of law prevent war, limit abuses during war and contribute to transitional justice while laying the foundation for a rights-respecting future polity?

A. Prevention of War

The shortcomings of relying on rule of law to prevent war are painfully obvious in light of recent history. International and domestic wars are driven by ethnic hatred, greed, economic considerations, geopolitical concerns for stability and the struggle for power. Law is, for the most part, powerless in the face of these concerns.200 The U.N. regime was largely an attempt to bring war and the use of force within an international legal framework.201 But it has proven incapable of preventing wars: the twentieth century was one of the bloodiest, and the twenty-first is not shaping up to be much better.202 The Cold War undermined whatever hope there might have been that the Security Council would be able to play a moderating role during the early decades of the U.N. The NATO bombings in Kosovo and the American invasion of Iraq without security Council approval have demonstrated further the limits of international law in preventing war in the postCold War era.203 In the eyes of many international law scholars, the NATO bombings and the American invasion of Iraq were illegal and demonstrate just how far away we are from an international rule of law.204

To be sure, some have argued the actions of NATO and the United States were legal, albeit based on a changing conception of laws of war,205 or were morally justified, even if illegal, based on humanitarian intervention to protect human rights or to promote democracy.206 The hand-wringing among international law scholars over the conflict between the illegality of NATO's intervention in Kosovo and their personal conviction in the morally compelling case for humanitarian intervention highlights the normative limitations of a thin rule of law and the need to weigh the values served by rule of law against other important social values, including the protection of human rights. Former President and Judge of the International Criminal Tribunal for the Former Yugoslavia (ICTY) Antonio Cassese succinctly stated the choices:

Faced with such an enormous human-made tragedy and given the inaction of the security Council . . . should one sit icily by and watch thousands of human beings . . . slaughtered or brutally persecuted? Should one remain silent and inactive only because the existing body of international law rules proves incapable of remedying such a situation? Or, rather, should respect for the Rule of Law be sacrificed on the altar of compassion?207

The conflict could be resolved by "legalizing" humanitarian intervention. One approach would be to recognize a customary international law right for a country or group of countries to intervene when certain standards are met.208 However, any such standards will be broad and subject to vastly different interpretations based on contested and complex facts.209 Ex ante and ex post assessments are also likely to differ widely given the impossibility of answering the counterfactual question: what would have happened if intervention had not occurred, assuming that some entity someday would be in a position to assess whether the intervention was legitimate humanitarian intervention or an illegal act of aggression?210 For now, and the foreseeable future, the lack of an authoritative entity to review and pass judgment on the decisions undermines the predictability and certainty that is central to rule of law and the requirement that laws be impartially applied. Allowing states to determine for themselves when intervention is merited, subject only to the threat of possible censure and sanctions by the world community, suggests the possibility of anarchy rather than rule of law. However, given the high costs of intervention, the risk to a state's own citizens, the possibility of getting bogged down in a major reconstruction effort with little chance of success, and political pressure from the international community, a much more likely result is that only the strongest states will intervene. Nevertheless, that result is also problematic from a rule of law perspective in that given limited resources and political will, strong states will intervene in an inconsistent and unprincipled way based on some mix of humanitarian concerns and self-interest.

An alternative would be to require U.N. approval, perhaps amending the U.N. Charter to require less than unanimity on the part of the security Council permanent members or a supermajority of the entire security Council or some combination thereof. However, there would still be a significant danger that U.N. decisions to intervene would be heavily politicized and that the standards for intervention would be stretched as necessary to reach what appear to some to be morally compelling cases.211 Moreover, there would still be moral and political pressure on states to act outside the U.N. framework and intervene on humanitarian grounds when the U.N. fails to act, which is likely to be often given the large number of compelling cases for humanitarian intervention, the limited resources of the U.N., and political barriers that would remain even with a lower approval threshold for intervention. Accordingly, decisions to intervene on humanitarian grounds are likely to remain largely outside the framework of rule of law.212

The refusal to include crimes of aggression within the jurisdiction of the ICTY and, at least for the time being, the International Criminal Court (ICC) further demonstrates the extent to which war falls outside the parameters of rule of law.213 In establishing the ICTY, the "powers that be" did not want to undermine the possibility of reaching a settlement with Milosevic, with whom they were negotiating at the time, by allowing or forcing the ICTY to decide who the aggressor was and which parties were responsible for the conflict.214 Nor do the United States and many other countries want the ICC determining who the aggressor is and which parties are responsible to what extent for future conflicts.215

B. Prevention or Mitigation of Abuses During War

While determinations of crimes of aggression (jus ad helium) remain largely outside an international rule of law framework, issues of how war is to be conducted (jus in hello) have increasingly become subject to international law. The Geneva and Hague Conventions have been supplemented by a number of other conventions and an expanding body of customary international law that set limits on how war may be waged.

Such rules are not wholly without effect, although their effectiveness should not be overstated. Some rules limiting certain weapons, such as chemical weapons, have generally been followed; rules regarding treatment of POWs have had a more mixed record of compliance, while rules protecting civilians have been more frequently ignored.216 There is some evidence that rule of law does reduce physical integrity violations, some of which would fall within the realm covered by international humanitarian law.217 Nevertheless, many of the countries with the worst human rights records are failed states, torn by ethnic conflict, and wholly lacking in the political will or institutional capacity to implement the rule of law. Moreover, historically, even countries known for the rule of law have reacted to international war and domestic instability by cutting back on civil and political liberties and violating the laws of war.218

There are, from both thin and thick rule of law perspectives, a number of problems with this body of law and its implementation. There is something fundamentally odd if not oxymoronic about humanitarian laws of war. One goes to war to defend one's way of life and all that one holds most dear, and does so by killing others.219 However, one is only supposed to kill others in a civil way. But why is it more humane, for example, to drop cluster bombs from 15,000 feet than to use chemical weapons? And even allowing that there is something terribly wrong about relying on civilians as human shields, what is particularly noble or humane about sacrificing one's own life by fighting an invading force with advanced weaponry in the open or in conventional ways? Why should the weaker side agree to fight by rules made by the stronger side, especially when the stronger side routinely violates the rules when doing so is to its advantage and then claims that the rules have changed based on acceptance of its behavior by its allies? The American treatment of prisoners in Iraq is only the most recent in a long list of violations of the law of war by Western states. The Allied fire-bombing of German cities, the refusal of British and American Navies to rescue Germans left stranded in the water after their ships were hit and French executions of German soldiers in reprisal for killings of French insurgents all violated the existing laws of war.220 In Vietnam, apart from using Agent Orange and napalm-bombing, the United States systematically tortured and abused POWs and civilians.221 Meanwhile, defenders of the United States war on terror now argue that the laws of war have changed both with respect to jus ad bellum and jus in hello based on the "new" threat from terrorism and international approval or tolerance of American actions.222

An evolution in the political rationale behind the laws of war has also led to inconsistencies in the nature of humanitarian law. The earlier Hague rules sought to establish some ground rules between roughly equal states involving battles between lawful combatants. As such, they only applied to "civilized" (Christian) peoples: the British did not apply the laws of war to conflicts with Zulus.223 In contrast, the additional protocols of the Geneva Conventions sought to address asymmetrical power by extending protection to "people's fighting against colonial domination and alien occupation and against racist regimes."224 The change has resulted in considerable confusion, and highly politicized interpretations, regarding who is entitled to what protections under humanitarian laws of war. At one extreme, the Bush administration has tried to deny virtually all rights to unlawful combatants, while human rights groups and most international law scholars argue that even unlawful combatants who violate the laws of war are entitled to certain protections.225

To be sure, many people find it hard to accept that unlawful combatants who engage in war crimes or who kill American occupational forces sent to liberate Iraq should benefit from the protections of the humanitarian laws of war. One might think that the torture of Iraqi detainees in Abu Ghraib and elsewhere would have demonstrated once and for all the need to ensure that even unlawful combatants and insurgents battling occupational forces be afforded certain protections. On the other hand, despite all of the moral indignation over the horrific images, the fact remains that torture exists as a common weapon of governments faced with extreme security challenges.226 Moreover, government officials, citizens and academics are increasingly arguing that torture and other physical integrity violations are justified. For instance, Amnesty International has claimed massive human rights violations in Nepal by both the military and Maoist guerrillas, including the killing and kidnapping of civilians, torture of prisoners and destruction of property.227 In defense of the government's suspension of constitutional freedoms and harsh actions, Nepal's Prime Minister declared: 'You can't make an omelette without breaking eggs. We don't want human rights abuses but we are fighting terrorists and we have to be tough."228 Ultimately, how much protection is provided depends on the severity of the threat.229

Deep conflicts over the nature, purpose and justifiability of humanitarian laws of war give rise to different thick conceptions of a humanitarian rule of law. Should unlawful combatants be entitled to protections and, if so, which ones? Should torture be allowed in some circumstances and, if so, under what circumstances?230 Should the executive be able to derogate from civil and political rights in times of emergency and, if so, should the decision be subject to legislative or judicial review? As discussed above, these issues cannot be resolved by appealing to the requirements of a thin rule of law. Rather they will turn on differences in normative and political beliefs that underlie different thick conceptions of rule of law.

The laws of war are equally problematic from a thin rule of law perspective. A thin rule of law requires that rules be reasonably clear. However, international humanitarian law is remarkably unclear in many crucial areas. Frequently, it consists of nothing more than general principles, often with an idealistic and-considering the context-surreal quality. Consider, for instance, the principles of proportionality and military necessity. Even the most basic issue of proportional to what remains unclear. Are American actions in the war on terror supposed to be proportional to past terrorist acts or possible future threats? Is proporti