The Rule of Law and Enforcement

Abstract

The transition of many emerging economies to market-orientated policies has required significant institution building in the administration of justice. The rule of law has emerged as a fundamental organising idea in this process. The minimum content of the rule of law is that the rights and duties of persons in the community, and the consequences of breach of any such rights and duties, must be capable of objective determination. This is not equivalent to a system of ‘rule by law’, as the rule of law is not simply a system that contains rules that must be obeyed. Rather, the rule of law is a system to be used by citizens for their own protection and their own advancement in their relations with the state and with other citizens. This paper discusses the essential characteristics of such a system, including the principle of universality and the idea of boundedness. Further it discusses the institutional design of an independent judiciary that ensures the fair, rational, predictable, consistent and impartial application of laws. It argues that individual integrity is inadequate, and that robust institutional protections are required to preserve judicial independence.