Asian Discourses of Rule of Law

Randall Peerenboom

• Publisher: Routledge
• Year: 2003
• eBook ISBN: 9781134341146
• Topic: History
• Subtopic: Asian History
• Index: History

Rule of law is one of the pillars of the modern world, and widely considered necessary for sustained economic development, the implementation of democracy and the protection of human rights. It has however emerged in Western liberal democracies, and some people question how far it is likely to take root fully in the different cultural, economic and political context of Asia. This book considers how rule of law is viewed and implemented in Asia. Chapters on France and the USA provide a benchmark on how the concept has evolved, is applied and is implemented in a civil law and a common law jurisdiction. These are then followed by twelve chapters on the major countries of East Asia, and India, which consider all the key aspects of this important issue.

1 VARIETIES OF RULE OF LAW: An introduction and provisional conclusion

Randall Peerenboom

In search of a conceptual framework for rule of law: the many meanings, uses and abuses of rule of law

Rule of law is an essentially contested concept. It means different things to different people, and has served a wide variety of political agendas, from Hayekian libertarianism to Rawlsian social welfare liberalism to Lee Kuan Yew’s soft authoritarianism to Jiang Zemin’s statist socialism. 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, but it also leads to the worry that it has become a meaningless slogan devoid of any determinative content.

Given such wide usages, it is far from clear how to approach a comparative discussion of rule of law. Analytically minded philosophers tend to want to clarify the minimal content of rule of law by specifying the necessary conditions that any legal system must possess to merit that honorific label. Social activists and critics prefer a more normative approach. Rule of law becomes an expeditious means toward a greater end—achieving their favored political agenda. Positively, rule of law serves as an aspirational ideal, pointing the way toward a more just world. Elided with justice, rule of law becomes an empty vessel into which each person pours his or her hopes for a better tomorrow. Negatively, rule of law is seen as an ideological mask of oppression, the legal system a bastion of conservatism that serves the rich and powerful and thwarts attempts at realizing a more just world by reifing the status quo. Wondering about the evolution of rule of law and rule of law discourse, the more historically and linguistically minded take yet another tack. They reflect on the connotations of the various terms used to translate “rule of law,” the discourses that were replaced or superseded by rule of law, and how the discourse has changed over time. Others broaden the historical study to look at the factors that led to the development of rule of law in the West or explain the success or failure in transplanting rule of law from modern Western liberal democracies with mature economies to foreign lands that may not be liberal, may not be democratic, and may not have developed economies. Spurred by such worries, political theorists and legal scholars debate endlessly the relationship between rule of law, democracy, human rights and constitutionalism, Focusing their lens a little more narrowly, neoinstitutionalists inquire into the institutions needed to implement rule of law, whether that be an independent judiciary and legal profession, a systems of checks and balances or a particular form of separation of powers.

No single approach will satisfy everyone. Each produces its own insights, and has its own drawbacks. However, if we are to have meaningful discussions with others with different backgrounds, it may help to begin with some definitions and a provisional conceptual framework to clarify whether we are all talking about the same thing, and, if not, how and why we differ. Fortunately, despite the many debates over rule of law and its contested nature, there is a fairly well-accepted conceptual or analytical framework that at least clarifies some of the terms and disputes, though without resolving many important related but oftentimes somewhat broader issues.

Thin and thick conceptions of rule of law

The fact that there is room for debate about the proper interpretation of rule of law should not blind us to the broad consensus as to its core meaning and basic elements. 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. In contrast, states that rely on law to govern but do not accept the basic requirement that law bind the state and state actors are best described as a rule by law or Rechtsstaat.¹

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 allegedly 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, liberal or theocratic.² For present purposes, the constitutive elements of a thin conception include, in addition to meaningful restraints on state actors, the following. There must be rules or norms for determining which entities (including courts) may make law, and laws must be made by an entity in accordance with such rules and norms to be valid. Laws must be made public and readily accessible. Law must be generally applicable: that is, laws must not be aimed at a particular person and must treat similarly situated people equally for the most part. Laws must be relatively clear, consistent on the whole, relatively stable, and generally prospective rather than retroactive. Laws must be enforced—the gap between the law on books and law in practice should be relatively narrow—and fairly applied. 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.³

There is general agreement not only about these criteria, but that these criteria cannot be perfectly realized, and may even in some cases be.in tension with each other. While marginal deviations are acceptable, legal systems that fall far short are likely to be dysfunctional. Of course, a thin theory requires more than just these elements. A fully articulated thin theory would also specify the goals and purposes of the system as well as its institutions, rules, practices and outcomes.

Typical candidates for the more limited normative purposes served by thin theories of rule of law include:⁴

• ensuring stability, and preventing anarchy and Hobbesian war of all against all;
• securing government in accordance with law by limiting arbitrariness on the part of the government;
• enhancing predictability, which allows people to plan their affairs and hence promotes both individual freedom and economic development;
• providing a fair mechanism for the resolution of disputes;
• bolstering the legitimacy of the government.

States may agree on these broad goals and yet interpret or weigh them differently, leading to significant variations in their legal regimes. For instance, a greater emphasis on stability rather than individual freedom may result in some states limiting civil society, freedom of association and speech (see Chapters 4, 6 and 7). Moreover, in periods of rapid economic or social transformation, some of these goals, such as predictability, may be sacrificed for other important social values.

A variety of institutions and processes are also required. The promulgation of law assumes a legislature and the government machinery necessary to make the laws publicly available. Congruence of laws on the books and actual practice assumes institutions for implementing and enforcing laws. While informal means of enforcing laws may be possible in some contexts, modern societies must also rely on formal means such as courts and administrative bodies. Furthermore, if the law is to guide behavior and provide certainty and predictability, laws must be applied and enforced in a reasonable way that does not defeat people’s expectations. This implies normative and practical limits on the decision-makers who interpret and apply the laws and principles of due process or natural justice such as access to impartial tribunals, a chance to present evidence and rules of evidence. One must also look beyond the traditional branches of government to the legal profession, civil society, private actors who increasingly take on government functions, and the military, which in many countries continues to be a force capable of undermining the legal system and rule of law.

In contrast to thin versions of rule of law, thick or substantive conceptions begin with the basic elements 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) or conceptions of human rights (libertarian, classical liberal, social welfare liberal, communitarian, “Asian values,” 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.

Although rule of law has ancient roots and may be traced back to Aristotle, the modern conception of rule of law is integrally related to the rise of liberal democracy in the West. Indeed, for many, “the rule of law” means some form of a liberal democratic version of rule of law. The tendency to equate rule of law with liberal democratic rule of law has led some Asian commentators to portray the attempts of Western governments and international organizations such as the World Bank and the International Monetary Fund (IMF) to promote rule of law in Asian countries as a form of economic, cultural, political and legal hegemony.⁵ 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, and social solidarity and harmony.⁶ This line of criticism taps into recent, often heavily politicized, debates about “Asian values,” and whether democratic or authoritarian regimes are more likely to ensure social stability and economic growth.⁷ It also taps into 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. In several countries, arguably in all countries, it has resulted in an attempt to inject local values into a legal system established by foreign powers during colonial occupation or largely based on foreign transplants (see, especially, Chapters 6, 7, 8 and 10).

It bears noting that many of the critiques of liberal democracy in Asia are shared by Western critics as well. Such odd bedfellows as the critical left, conservative right and communitarians all find common ground in maintaining that liberals overstate the importance of autonomy and individual freedom at the expense of a more holistic approach that fosters community and social solidarity. Such diversity suggests that “the West” has been just as much a simplified construct as “Asia”/“the East” in recent debates about Asian values and the universalism of human rights.

Whatever the normative merits or limitations of liberalism, the liberal democratic model is of limited use in understanding several of the legal systems in Asia. China and Vietnam are effectively single-party socialist states. While there are democratic elections in Singapore and Malaysia, both countries are frequently characterized as non-liberal, soft-authoritarian regimes. Several other countries are in the process of consolidating democracy But even many of the democratic regimes show signs of being less liberal than their Western counterparts. Some countries remain politically unstable and torn by ethnic strife, resulting in various restrictions on individual liberties. Many are confronting widespread poverty and the social ills that follow from it. Worried about meeting the basic needs of sustenance, expansive social welfare programs seem a distant pipedream.

In striking contrast to the many volumes on rule of law in the Western literature, relatively little work has been done on clarifying alternative conceptions of rule of law in other parts of the world, including Asia.⁸ What emerges from the following country studies is a rich portrait of diverse conceptions of rule of law both across the region and within individual countries, from liberal views to authoritarian views, from top-down statist views to the bottom-up perspectives of oppressed individuals seeking to harness the power of rule of law to redress individual instances of injustice and the broad-ranging systemic problems that empower a few at the expense of the many.

A point of clarification: the relationship between thin and thick theories

While thin and thick versions of rule of law are analytically distinct, in the real world there are no freestanding thin rule of law legal systems that exist independently of a particular political, economic, social and cultural context. Put differently, any legal system that meets the standards of a thin rule of law is inevitably embedded in a particular institutional, cultural and values complex, whether that be liberal democratic, statist socialist, soft authoritarian, communitarian, some combination of them, or some other alternative. In Singapore, for instance, the government sometimes seems to advocate a thin rule law against the thicker normative conception of liberals. However, the government’s conception of a thin rule of law is itself embedded in a particular non-liberal thick conception as evidenced in its views on democracy, the importance of stability and economic growth, and various rights issues.

Theoretically, one way of conceptualizing the relationship between a thin rule of law, particular thick conceptions of rule of law, and the broader context is in terms of concentric circles. The smallest circle consists of the core elements of a thin rule of law, which is embedded within a thick rule of law conception or framework. The thick conception is in turn part of a broader social and political philosophy that addresses a range of issues beyond those relating to the legal system and rule of law. This broader social and political philosophy would be one aspect of a more comprehensive general philosophy or worldview that might include metaphysics, religious beliefs, aesthetics, and so on.

The advantages and disadvantages of thin and thick theories

Thin and thick conceptions are analytical tools. It is not a question of one being the right way to conceive rule of law and the other wrong. They have different advantages and disadvantages, and serve different purposes. Thin conceptions highlight certain features and purposes of a legal system. Even a more limited thin rule of law has many important virtues. At minimum, it promises some degree of predictability and some limitation on arbitrariness, and hence some protection of individual rights and freedoms. While the notion of legality may seem like all too thin a normative reed in cases where the laws themselves are morally objectionable, even the harshest critics of rule of law acknowledge that getting government actors to act in accordance with, and to abide by, the laws is no small achievement. Certainly dissidents rotting away in jail after being denied the right to a fair trial and other procedural protections appreciate the importance of even a thin rule of law. Similarly, business people and the average citizen alike appreciate a legal system in which laws do not change daily and are regularly applied in a fair manner by competent administrators and judges free from corruption. By narrowing the focus, a thin theory highlights the importance of these virtues of rule of law.

Conversely, because thick theories are based on more comprehensive social and political philosophies, 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.⁹

As a practical matter, much of the moral force behind rule of law and its enduring importance as a political ideal today is predicated on the ability to use rule of law as a benchmark to condemn or praise particular rules, decisions, practices and legal systems. But all too often, rule of law is simply invoked to criticize whatever law, practice or outcome does not coincide with one’s own political beliefs. For example, in Singapore liberal critics of the government’s conservative policies have invoked rule of law to object to the lack of “adequate” workers’ rights legislation, limitations on the right of peaceful demonstration, and a regulatory framework that restricts the freedom of the local press. Contrast such complaints with the following. A law provides that contractors must have five years of experience and meet various other requirements to obtain a license; nevertheless, a government official denies a license to a contractor who meets all of the requirements, and a court refuses to overturn the decision because local courts are funded by the local government. Two government agencies issue conflicting regulations, and there is no effective legal mechanism to sort out the conflict. A suspect is entitled to legal counsel 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.

Distinguishing between thin and thick theories makes it possible to use rule of law more effectively as a benchmark for evaluating legal systems by clarifying the nature of the problem. Several of the countries in Asia are still in the process of establishing functional legal systems. Their legal systems are plagued by thin rule of law issues such as weak legal institutions, incompetent and corrupt administrative officials and judges, excessive delays, and limitations on access to justice including high court costs and the lack of legal aid.¹⁰ These kinds of problems are qualitatively different than more political issues such as how broad free speech or freedom of association should be, or whether labor should have the right to form unions and strike. Obviously, these latter issues are tremendously important and deserve to be discussed. But whether the most effective way to do so is by riding into battle hoisting the banner of rule of law is debatable. When invoked by parties on both sides of an issue to support diametrically opposed results, rule of law quickly becomes conceptually overburdened and unstable.

A thin theory therefore facilitates focused and productive discussion of certain legal issues among persons of different political persuasions. Being able to narrow the scope of the discussion and avoid getting bogged down in larger issues of political morality is particularly important in cross-cultural dialogue between, for example, American liberals and Chinese socialists or Muslim fundamentalists. Criticisms of a legal system in a country such as China and Vietnam that point out the many ways in which the system falls short of a liberal interpretation of rule of law are likely to fall on deaf ears and may indeed produce a backlash that undermines support for rule of law, and thus, ironically, impede reforms favored by liberals. Conversely, criticisms are more likely to be taken seriously and result in actual change given a shared understanding of rule of law. To the extent tha...

Table of contents

• COVER PAGE
• ASIAN DISCOURSES OF RULE OF LAW
• ROUTLEDGECURZON LAW IN ASIA
• TITLE PAGE
• COPYRIGHT PAGE
• NOTES ON CONTRIBUTORS
• PREFACE: OVERVIEW OF PROJECT GOALS, METHODOLOGY, AND STRUCTURE
• 1 VARIETIES OF RULE OF LAW: AN INTRODUCTION AND PROVISIONAL CONCLUSION
• 2 RULE OF LAW IN THE UNITED STATES
• 3 RULE OF LAW IN FRANCE
• 4 COMPETING CONCEPTIONS OF RULE OF LAW IN CHINA
• 5 CONCEPTS OF LAW IN VIETNAM: TRANSFORMING STATIST SOCIALISM
• 6 RULE OF LAW WITHIN A NON-LIBERAL ‘COMMUNITARIAN’ DEMOCRACY: THE SINGAPORE EXPERIENCE
• 7 COMPETING CONCEPTIONS OF RULE OF LAW IN MALAYSIA
• 8 DEBATING RULE OF LAW IN THE HONG KONG SPECIAL ADMINISTRATIVE REGION, 1997–2002
• 9 INDONESIA: DEVALUING ASIAN VALUES, REWRITING RULE OF LAW
• 10 RULE OF LAW IN INDIA: THEORY AND PRACTICE
• 11 RULE OF LAW AND ASPECTS OF HUMAN RIGHTS IN THAILAND: FROM CONCEPTUALIZATION TO IMPLEMENTATION?
• 12 THE PHILIPPINE “PEOPLE POWER” CONSTITUTION, RULE OF LAW, AND THE LIMITS OF LIBERAL CONSTITUTIONALISM
• 13 RULE OF LAW IN SOUTH KOREA: RHETORIC AND IMPLEMENTATION
• 14 THE EFFECTS OF RULE OF LAW PRINCIPLES IN TAIWAN
• 15 RULE OF LAW IN JAPAN