Rule of law is today an international hurrah term, on the lips of every development agency, offered as a support for economic growth, democracy, human rights, and much else. RoL promotion is booming. Lots of people and organizations are contracted to work on it, lots of money is spent on it, lots of academics study it. To a partisan of the rule of law, and I am one, that should be good news, and in a way it is. But only in a way. For it is hard to boast of much success in actually fostering it, let alone understanding what the 'it' is. Nor, given the proliferation of people wanting a slice of it, is it as clear as it once may have seemed, what it might be good for. Some still doubt whether it is good for much at all.
Over some 30 years, I have struggled to reach some clarity about the rule of law and why, as I believe, it matters so. This paper gives some account of the reasons for the quest, some of the dragons that needed to be slain along the way, the glittering but elusive prize, and why, after so long a trek, there still appear to be long tunnels at the end of the light.
Central among the many unclarities that attend the rule of law are those named in the title of this paper. I move through this array of puzzles, in the order in which they appear there. One could rearrange the order, and many do, but I suggest that is unwise. I conclude by reflecting on the extent to which where we stand in relation to the rule of law often depends on where we sit. The concept has today become so protean, partly because people can have so many reasons for being interested in it. That can lead to confusion, but it also can reflect real differences in perspective. I distinguish between two such perspectives that matter over a broad range. One is that appropriate to efforts to establish the rule of law where it has not been much in evidence. The attempt, always difficult and often fruitless, is to generate it. The other occurs where the rule of law is already in place and more or less well established. People seek to analyze it, and may well want to defend it or criticize or improve it. However they have it and can draw on it, though they might well want more or better of it. Before we say what the rule of law is, what it depends on, and what it’s worth, it helps to clarify who is asking, and in what circumstances.
Date of this Version
Martin Krygier, "Four Puzzles about the Rule of Law: Why, what, where? And who cares?" (June 2010). University of New South Wales Faculty of Law Research Series 2010. Working Paper 22.