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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replaced or superseded by rule of law, and how the discourse has changed over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
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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
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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
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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
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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.