Whose rule of law?

CAMBRIDGE — In the early 2000s, there was a near-unanimous consensus among academic lawyers that the absence of the rule of law was strictly a “Third World problem” — meaning one that the advanced economies of the Global North had solved. Yet, just over a decade later, the United States elected as president a man who would go on to incite an insurrection at the US Capitol, conspire to overturn an election that he lost, abscond with classified documents when he finally left the White House, and then call for the “termination” of the US Constitution.

How did a quintessentially “Third World problem” become a “First World problem” as well? In fact, it was ever thus. The purported differences in kind between the Global North and the Global South have always been a product of colonial triumphalism, rather than reflecting an accurate scientific taxonomy.

This was the core insight of “law and development”, a beleaguered area of study that came into (modest) prominence in the 1970s. At the height of the Cold War, organisations like USAID and the Ford Foundation pushed law professors and legal scholars to take more of an active interest in evangelising Western-style law (which is a bit like a pharmaceutical company paying a laboratory to “find” that one of its proprietary drugs is indeed effective). But, as a small coterie of law and development scholars pointed out, law is not always “potent” or “good”, even at “home” in the West.

Ignoring this inconvenient truth, Western organisations proceeded to foist their vision of the rule of law on the rest of the world anyway. While law and development professors were unwilling to play ball, economists steeped in the Washington Consensus agenda (fiscal discipline, deregulation, trade and capital-market liberalisation, privatization, and so forth) were all too happy to fill the void.

In the years since, waves of economistic engagement — from “law and economics” and new institutional economics to legal origin theory — have crashed onto the shores of the Global South. The consistent message has been that low-income countries must modernise their legal systems, replacing all traditions and social conventions based in “magical” and “mystical” thinking (as Max Weber once put it) with cold, calculable legal “rationality”.

The West, under the auspices of programmes such as the United Nations Commission on Legal Empowerment of the Poor and the World Bank’s Worldwide Governance Indicators, has launched multiple initiatives not only to “export” a valuable commodity — a Western-style legal system — but also to quantify and measure its uptake. One influential effort, which I was involved with at its inception, is the American Bar Association-backed World Justice Project. Among other things, the WJP assesses the health of the rule of law in ailing developing countries (usually designated “corrupt”) and then prescribes treatments — typically shock therapy-style elixirs — to bolster property and contracts regimes.

The good works of Western law have continued apace in locations ranging from Vietnam and Iraq to Afghanistan. Yet, none of these initiatives was ever supported by any evidence that simply “transplanting” legal regimes would succeed. On the contrary, many millions of dollars were spent on a two-decade-long reform effort in Afghanistan, and still, before the Taliban’s reconquest, the country ranked 134th of 139 in the WJP’s 2021 Rule of Law Index.

There are undoubtedly problems with this kind of empirical approach, as the controversy surrounding the World Bank’s Doing Business report shows. But even more problematic is the underlying theory. As the 2008 global financial crisis did with orthodox economics, the Trump presidency exposed core flaws in rule-of-law scholarship that had long been buried or obscured. Chief among these is the assumption that law will play a decisive part in eliciting good behavior — that it will exert what legal scholars call “general normative force” on the society in question.

But now, no one can deny that the prevailing epistemic apartheid — the marginalisation of those studying the “problems” of establishing and maintaining the rule of law — within law schools has damaged Western countries as much as the rest of the world. This is evident even in the WJP’s own reports, which showed a marked decline in the US’ rule-of-law ranking for five consecutive years from 2017 to 2021.

Although the US recovered somewhat from Trump’s contempt for the rule of law in 2022, it might not be so lucky next time around. Trump has already announced his campaign for the 2024 presidential election, and dismissed the House January 6 Committee as a “kangaroo court.” Moreover, a fully Trumpified Republican Party remains committed to eroding the values that underpin the rule of law.

The emergence of social order via the establishment of law-like systems is a universal phenomenon. It happens when individuals join an emerging social consensus in support of such a system, and this process tends to follow the same pattern no matter the country. But understanding the rule of law’s basic structure and normative merits doesn’t really help us understand its underlying mechanics.

Fortunately, now that we are seeing the global nature of the challenges associated with maintaining the rule of law, important but long-neglected areas of legal scholarship (including empirical legal studies, law and psychology, behavioural law and economics, and law and emotions) are getting the attention they deserve. The more we can bring rigorous scientific analysis to the study of the rule of law, the better we can understand and protect it, both in the “Third World” and in the “First”.

Antara Haldar, associate professor of Empirical Legal Studies at the University of Cambridge, is a visiting faculty member at Harvard University, a former fellow at Stanford University’s Centre for Advanced Study in the Behavioural Sciences, and the principal investigator on a European Research Council grant on law and cognition.