| Annotation |
The text deals with a somewhat neglected aspect of the rule of law, its sociological dimensions. Studying the rule of law involves getting answers to two related questions, about the rule of law, before one can say what the law should be like to achieve it. First, what is the point, the value, of the rule of law, what is it supposed to achieve; this is the philosophical element. Second, what, in light of that value, do you need to have in a society and legal order, in order to achieve that value? This will involve considering sociological, political (and economic) conditions. Though both questions are important, the author focuses in this text primarily on the second question. He examines the social bases of law and the rule of law, pointing out their complexity and variety in different times and contexts. Typically, by contrast, lawyers discuss the rule of law as though it was a thing to be defined by specific legal institutional attributes, which one should expect to find wherever the rule of law can be found. Unless the point of the rule of law and its social and political conditions are taken into account, however, the institutional recipies typically offered by rule of law promoters are merely floating in the air. Even if they might work somewhere, they might fail elsewhere, as many rule of law promotion programs have shown. Institutional prescriptions need to be grounded in an understanding of the value of the rule of law, and in the particular social and political conditions where one seeks it. In light of that value and those conditions, one can then ask what legal institutional measures — in this society at this time — are most likely to help one achieve the rule of law, in a particular society, with particular social and legal histories, traditions, and practices. Typically, however, lawyers ignore these issues, and start with some confident, but often misplaced, universal institutional conception of what the rule of law requires from law. That leaves a systematic gap in our understanding. This article aims to fill this gap. |
