Chapter 1
Problematising the ‘rule of law’ as a concept
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Key messages

In fragile societies, the ‘thin’ (largely procedural) conceptualisation of the rule of law is too devoid of substance to generate just outcomes, while the ‘thick’ (more substantive) version is too prescriptive of such outcomes to stimulate practical progress.

Both ‘thin’ and ‘thick’ conceptualisations of the rule of law insufficiently recognise its development as a gradual and lengthy process of progressive expansion of rights and entitlements that might start from a decidedly limited, exclusionary and undemocratic basis, and feature significant regression.

The international declaratory reality of the rule of law serves two main purposes: providing an aspirational dot on the far horizon and enabling domestic contestation for progressive rule of law development. As a result, ‘rule of law’ must be conceptualised such that it allows for significant variations in both substance and form that remain both grounded and aspirational.

Every serious work on the rule of law seems to start with a definition of the concept, or at least a discussion of the matter. This is undoubtedly because few concepts are as vague and disputed, and yet as relevant and promising, as the ‘rule of law’. This paper is no exception.

An interesting starting point is the distinction that some analyses make between ‘thin’ and ‘thick’ versions of the rule of law.‍[12] The former amounts to a largely procedural understanding of the notion in which the process of obtaining a ‘justice outcome’ has to meet certain criteria in order to be considered ‘just’ (and hence, in accordance with the rule of law).‍[13] For example, it should be public, impartial and accessible. As this approach says little about the substance of the law, understandably it leads to a focus on the systems, mechanisms and procedures at work at the different stages of the justice chain that ultimately lead to justice outcomes. It also leads to a focus on the institutions involved in each step and their capabilities to ensure due process.‍[14] This concept of the rule of law offers a practical lens for understanding and working with reality that is premised on procedural normativity. It is reflected in the organisational set-up of a number of international rule of law development programmes and international agencies, such as the UN Global Focal Point on Police, Justice and Corrections.

‘Thick’ vs. ‘thin’ versions of the rule of law

The ‘thick’ version of the rule of law contends that correct procedure alone cannot bring about ‘just outcomes’ because the substance of those outcomes matters as much as how they are arrived at. In this version, it is generally held that just outcomes must be reflective of the rights and duties conveyed by existing international treaties and/or domestic entitlements and obligations related to human, political and social rights.‍[15] It is no surprise that this ‘thick’ understanding of the rule of law resonates strongly in UN declarations and statements.‍[16]

The 2017 World Development Report contends that ‘thin’ versions of the rule of law have largely given way to ‘thicker’ versions that move from a focus on procedure to a focus on substance, with greater attention to normative standards of rights, fairness and equity.‍[17] While this may be true at a declaratory level, the reality of much international rule of law promotion is that it uses ‘thin’ approaches – meaning a focus on procedure, systems and institutions – to realise ‘thick’ objectives.‍[18] In other words, activities that improve institutional performance, build capacity and increase access to justice are implicitly assumed or explicitly expected to contribute to bringing about normative change and to be adequate for ensuring its enforcement in a procedurally correct manner.

One problematic issue here is that in the ‘thin’ approach to the rule of law, justice institutions tend to be understood mostly in the formal sense, i.e. those that are part of the internationally recognised state. This excludes a significant number of institutions relevant to rule of law development, such as the hybrid forms of governance that characterise rule in fragile societies, customary institutions, and the even less tangible webs of relationships that connect state, hybrid and customary institutions.‍[19] It exemplifies how the assumption of the existence of a universal meaning of the ‘rule of law’ is equated with a particular institutional manifestation in the form of the Western, Weberian state – which flies in the face of the evidence that governance in fragile societies will, for the foreseeable future, follow more hybrid trajectories - and may well feature a hybrid ‘end-state’ as well.‍[20] Another problematic issue is that the ‘thin’ approach to the rule of law does not take much account of the dense, interlocking and overlapping texture of social norms, beliefs and behaviours that the ‘thick’ version of the rule of law is implicitly imbued with. A final problematic issue is that developing the rule of law requires a great deal more than promoting ‘legal public goods’ such as affordable legal aid, efficacious laws and a professional judiciary. Even when accounting for laws having ‘agency’,‍[21] it would be remarkable if systems that fall significantly short on the rule of law were able to bring it about via judicial system(s) as their principal instrument.‍[22]

Apart from these practical challenges, a simple distinction between ‘thin’ and ‘thick’ conceptions of the rule of law is likely to gravitate towards the latter in the rhetoric of the international discourse (but not in international practice). This is in part because it is more attractive for the UN to advocate for a ‘thick’ conception due to its standard-setting and norm-promoting character, despite the significant variation in the quality of the rule of law of its members. It is also because autocracies have an interest to be seen as good global citizens and will, on paper, espouse a ‘thick’ conception as well. The resulting gap between rhetoric and reality can be observed in many rule of law development programmes that profess to advance global norms, but either work on ‘thin’ conceptions of the rule of law, or are rather beholden to the state they are working in. Abstractly, this tension is well illustrated by the fact that the UN Secretary-General’s 2004 definition of the rule of law was conspicuously absent from the 2012 UN General Assembly (UNGA) declaration on the rule of law, suggesting a continued lack of agreement among members.‍[23]

The ‘thick’ definition of the rule of law is also problematic. This is because it tends to define the substance of laws that merit the label ‘compliant with the rule of law’ as domestic implementation of the rights and entitlements expressed in international treaties, agreements and conventions. However, for some signatories these commitments emerged out of mature political orders with high levels of legitimacy, wealth and representation, while other signatories were (and are) still in situations of (recurrent) conflict, in the process of stabilising and constructing their political order, and/or may have seen their domestic political processes truncated by international interventions.‍[24] In short, the thick definition does not sufficiently allow for conceptualisation of the rule of law as a gradual and lengthy process of progressive expansion of rights and entitlements that might start from a decidedly limited, exclusionary and undemocratic basis, as well as feature significant regression at times.

A brief review of recent political-legal history makes it clear that the speed with which rights and entitlements were encoded internationally has appreciably outpaced domestic processes of political contestation in a number of places, particularly fragile societies.‍[25] This is not to say that the resulting international treaties have no inspirational or aspirational value, they do.‍[26] But it does mean that it is fallacious to expect that the rights and entitlements so enshrined will create de facto, or even de jure, rights within all national legal orders at roughly the same time or that convergence can and should be realised in the near future.‍[27] In short, governments of many fragile societies may have signed up to the internationally generated content of the ‘thick’ version of the rule of law, but neither the nature of their political order nor their ‘state of justice’ enables them to give significant meaning to such declaratory intent – even if they intended to comply with it. In turn, this means that international rule of law development interventions, such as aid programmes, must take a pragmatic, incremental approach in the realisation that much of the international declaratory reality of the rule of law serves two chief purposes. One is that it provides an aspirational dot on the far horizon without, however, having concrete programming value. The other is that local actors can use declaratory reality to engage in domestic contestation for progressive rule of law development, sometimes with international support.‍[28] This requires a readiness to deal with elite resistance against citizens claiming their rights – and the possible fallout of such a situation.

Balancing reality with aspiration

For the reasons discussed, neither the thin nor the thick versions provide a working definition of the rule of law that adequately balances reality with aspiration. The thin version is too devoid of substance to generate just outcomes, while the thick version is too prescriptive of such outcomes to stimulate practical progress in fragile societies. This makes it useful to think of ways to conceptualise the rule of law that allow for significant variations in substance and form, but that also remain coherent and aspirational. More relativity is required without becoming adrift in cultural relativism. The substance of the rule of law can vary according to culture, time or place if one accepts those to whom laws apply as a yardstick for what is ‘just’. The form of the rule of law can vary because many different institutional pathways – ranging from informal customs to highly formalised international courts – can achieve the same ends.‍[29] With this in mind and on the basis of a number of existing works on this matter, ‍[30] it might make sense to conceptualise the rule of law as:

“A non-linear development in which the accessibility, quality of proceedings, content and enforcement of customs and laws that give expression to rights and entitlements are gradually expanded in such a way that increasing numbers of people perceive and experience these as just most of the time in terms of the solutions they produce in response to differences”

This conceptualisation is complex and will not serve as a rallying point for practical rule of law advocacy efforts. Nevertheless, it has several advantages for policy and programming purposes.

It accepts legal plurality without assuming a dichotomy between formal and informal law that will ultimately be decided in favour of the former (note the qualifier ‘custom and law’).

It allows for understanding the ‘rule of law’ as a process instead of a state of affairs (note the qualifiers ‘a … development’ and ‘most of the time’).

It recognises that progress can be uneven and variable across the various sites of legal plurality, featuring regress as well as progress (note the qualifiers ‘…non-linear…’ and ‘most of the time’).

It indirectly allows for considering the degree of participation or inclusion in the process of law-making (note the qualifier ‘increasing numbers of people’).

It allows for balanced consideration of the ideal and reality by referring to both ‘perceptions’ and ‘experiences’ as relevant measures of whether justice mechanisms are effectively institutionalised and performing adequately.

Such an approach is consistent with the observation that not much is actually known about how and why transitions to ‘thicker’ versions of the rule of law happen. Current knowledge largely tells us what does not happen, i.e. it is well established that the rule of law is not a precondition for rapid economic growth or effective governance. More generally, it has also become clear that developmental change does not happen in accordance with the tenets of the liberal peace agenda.‍[31]

Kleinfeld Belton, R., Competing Definitions of the Rule of Law: Implications for practitioners, Washington DC: Carnegie Endowment for International Peace, Carnegie Papers no. 55, 2005; Kavanagh, C. and B. Jones, Shaky Foundations: An Assessment of the UN’s Rule of Law Support Agenda, New York: New York University, 2011; World Bank (2017), op.cit.
Such criteria are for example described in: Bingham, T., The Rule of Law, London: Allen Lane, 2010; Fuller, L., The Morality of Law, New Haven: Yale University Press, revised edition, 1969.
Kleinfeld Belton (2005), op.cit.
Bingham (2010), op.cit.,; Marshall, D. (ed.), The International Rule of Law Movement: A Crisis of Legitimacy and the Way Forward, Cambridge: Harvard University Press, 2014.
Consider for example the Universal Declaration of Human Rights: link (accessed 2 March 2017); the UN’s Human Rights Up Front campaign launched in 2013 or Marshall (2014), op.cit.
World Bank (2017), op.cit.
See for instance: ADE, Thematic Evaluation of the European Commission Support to Justice and Security System Reform, Final report ref. 1295, Brussels: European Commission, 2011; Independent Commission for Aid Impact, Review of UK Development Assistance for Security and Justice, Report 42, London: ICAI, 2015; Van Veen, E., Improving Security and Justice Programming in Fragile Situations: Better Political Engagement, More Change Management, Paris: OECD, Development Papers No. 3, 2016; Kavanagh and Jones (2011), op.cit.
This is similar to how the World Bank defines law as “the positive de jure rules that are officially on the books of a state”. Although the World Bank fully recognises that the law defined in this manner is only one of many rule systems that exist in parallel, it is a bit odd not to consider these systems as ‘law’ where their functionality is similar, especially given the lack of evidence that the World Bank cites on how transitions to the rule of law are actually achieved. World Bank (2017), op.cit.
For example: Themnér, A. and M. Utas, ‘Governance through brokerage: Informal governance in post-civil war societies’, Civil wars, 18:3, 255-280, 2016; T. Hüsken and G. Klute, ‘Political orders in the making: Emerging forms of political organization from Libya to northern Mali’, African Security, 8:4, 320-337, 2015; Malejacq (2016) op cit.; Utas (2012), op.cit.
As for instance evidenced by: Ginsberg, T. and T. Moustafa, Rule by Law: The Politics of Courts in Authoritarian Regimes, Cambridge: CUP, 2008.
United Nations, The rule of law and transitional justice in conflict and post-conflict societies, New York: Report by the Secretary-General (S/2004/616), 2004; UN General Assembly, Declaration of the high-level meeting of the General Assembly on the rule of law at the national and international levels, New York, A/RES/67/1*, 2012
The constitutional drafting process in Iraq offers a case in point: Van Veen et al (2017), op.cit.
Consider for example the timespan of the political-legal developments described in Bingham (2010), op.cit. See also: World Bank (2017), op.cit.
For example, Marshall (2014), op.cit. argues that they can be used to nudge and cajole countries into better rule of law performance.
This is certainly unlikely to happen in the absence of an effective transposition and enforcement mechanism along the lines of prejudicial questions and direct applicability of parts of European Union law.
Ginsberg and Moustafa (2008), op.cit.; World Bank (2017), op.cit.
See for example: Isser, D., Customary Justice and the Rule of Law in War-Torn Societies, Washington DC: USIP, 2011; Bingham (2010), op.cit.
For example: Domingo, P., Rule of law, politics and development: The politics of rule of law reform, London: ODI, 2016; Marshall (2014), op.cit.; Kleinfeld Belton (2005), op.cit.; Isser (2011), op.cit.
See for example: North, Wallis and Weingast (2009), op.cit.; World Bank (2017), op.cit.; Paris, R. and T. Sisk (eds.), The dilemmas of statebuilding: Confronting the contradictions of postwar peace operations, Abingdon/New York: Routledge, 2009; Valters, C., E. van Veen and L. Denny, Security progress in post-conflict contexts: Between liberal peacebuilding and elite interests, London: ODI, 2015.
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Why rule of law engagement in fragile societies?