The Shape of Water

An old joke goes like this. Two fish were swimming along one day when they came upon a turtle. “How’s the water, boys?” the turtle asked. After the turtle swam away, one fish turned to the second fish and asked, “What the heck is water?” Sometimes we can be so immersed in something—even something vitally, existentially important—that we take it for granted. We might not even realize it is there until it is not. Rule of law is like water.

Citizens of developed counties can take for granted that if they are wronged, they have recourse for action. They can legally register their livelihoods, whether it be starting a business or joining a payroll, with relative ease and without paying bribes or protection money. Legal status in the formal economy allows them to access a plethora of opportunities and services such as credit, insurance, and retirement plans. If they are the victims of theft, they have an appeal to justice through a legal system that is, however imperfect, highly reliable relative to the legal systems in other countries (especially the so-called “Least Developed Countries” or LDCs). All of this security, and much more, flows from the rule of the law, which should be of fundamental interest to those concerned with development and human flourishing. It is a hard and unglamorous subject, but is one of utmost importance. Episode 3 of the PovertyCure series treats the subject of the rule of law in depth, along with the closely related issue of property rights.

THE ECONOMIC IMPORTANCE OF THE RULE OF LAW

Economic development cannot be sustained for long without the rule of law. Peruvian economist Hernando De Soto is a seminal thinker on this topic. When legal structures fail to secure property rights, De Soto argues, they are unable to pursue higher yielding, long-term strategies for their property, or to use their property to access credit for business enterprise. De Soto’s research confirms common sense: When political authority fails to enforce contracts, commercial incentives evaporate. Business ventures are risky enough, even in the best legal environments. Similarly, rule of law is needed to attract foreign investment. If a company fears that its land or capital goods might be arbitrarily confiscated by politicians or organized criminals, it will hesitate to invest in a country. Where international investors discern an unstable rule of law, they conclude that the business climate is unfriendly, and they direct their financial resources to other markets.

In other words, neither investment nor natural resources provide any guarantee that economic growth will help the poor of a developing country. Indeed, developing countries rich in natural resources are often marked by extreme poverty amidst abundance. The phenomenon is so common that development economist Paul Collier coined a term for it. The so-called “natural resource trap” describes a country whose abundance of oil or mineral wealth underwrites a corrupt political system. The country might experience economic growth, but only a narrow elite benefit. The development of a broad-based economy requires freedoms to participate in government and engage in commerce. Likewise, only where the actions of government are transparent and constrained by law is it likely that the benefits of economic growth will extend beyond the politically well-connected to people from every social class.

The Rule of Law vs. the Rule of Men

The rule of law is not to be confused with the rule of men. The rule of men refers to the arbitrary use of political authority for the betterment of individuals at the expense of others. In contrast, the rule of law means there are clear, reasonable, and stable laws consistently applied across society. Where the rule of law is lacking, “might makes right” inevitably becomes the rule. In such a society, the rights of the powerless and poor will be most in jeopardy.

Because laws naturally reflect the history, culture, and geography of particular peoples and regions, legal systems may look somewhat different from nation to nation. There are, nonetheless, certain features of just legal systems that are common across time and space. Practicing the rule of law entails the presence and proper functioning of certain institutions: a legitimate legislator, a fair judiciary to resolve disputes, and an enforcement system that consistently enforces the law across social classes.

Characteristics of Natural Justice

A rich understanding of the rule of law includes the principles of natural justice, with several elements characterizing a just system of laws and their application. The following are normally included among the characteristics of natural justice:

• Rules are promulgated, and are clear and coherent with respect to each other.
• Rules are prospective rather than retroactive, and not impossible to comply with.
• Rules are sufficiently stable to allow people to be guided by their knowledge of the rules.
• Those charged with the authority to make and administer rules are accountable for their own compliance with the rules, and administer the law consistently.
• There is a recognized division of responsibility in administering the law. No one can, for example, be simultaneously judge, witness, public prosecutor, and public defender.

Rule of law is a necessary but not sufficient condition for achieving the goal of natural justice for all. It is possible, for example, that a society possesses the rule of law to a high degree while particular laws are unjust. “Justice for all” is most closely approached, then, when society is characterized by the rule of law, and the legal code does not unjustly discriminate against some particular group within society.

Senegalese entrepreneur Magatte Wade observes that the problem in many African nations is not a lack of laws but an excess of “senseless laws.” “Africa is the hardest place to do business in the world,” Wade has said, “because it is the most over-regulated region in the world.”

These “senseless laws” stifle entrepreneurship, normalize bribery, and otherwise push people into the black market. When tariffs, regulations, and legal barriers are so burdensome that honest business becomes nearly impossible, the law ceases to protect and instead “breaks” the very people it is meant to serve. In such cases, reform is not about removing the rule of law, but about dismantling counterproductive regulations so that just, transparent, and accessible legal frameworks can function—and so that justice truly is for all.

Moral Foundations of the Rule of Law

The concept of the rule of law derives from human reflection about what is good and evil. It assumes that people are reasonable creatures and responsible for ordering and channeling their wants in the most productive ways possible. When present, the rule of law effectively balances the rights of the individual with the individual’s duties as a member of society.

It is difficult to sustain the rule of law when the moral culture of a nation is weak. For example, it is difficult to maintain the rule of law where there is a widespread commitment to moral relativism—the concept that absolute truth is nonexistent, impossible to know, or variable depending on circumstances. Traditional legal prohibitions against acts such as murder, theft, and perjury are based on the belief that there are standards of behavior to which all people must adhere and that it is possible for people to know these standards. In many nations, the knowledge and legitimacy of such standards spring from religion.

Where religious traditions weaken and are replaced by secular relativism, the foundation of the rule of law has only the arguments of custom and efficiency to sustain it. This is shaky ground. Unfortunately, experience shows that customs wither in time when cut off from their sources. An important measure of a good citizen is the individual’s sense of moral obligation to observe the law. Where disrespect for law is widespread, legislation becomes irrelevant and enforcement impossible. The rule of law and the moral culture informed by religious tradition are complementary. A robust rule of law embedded within a strong moral culture is the surest foundation for economic development that is just and sustainable.

Christian theologians regard the cultural pursuit of widespread natural justice and rule of law as compatible with natural reason. They emphasize that no culture composed of fallen humans—Christian or otherwise—will ever achieve a perfectly just system of government.

No religious tradition can guarantee that a citizenry will adhere widely to the rule of law, much less that justice will be effectively extended to all. People are quite capable of ignoring the precepts of their professed religion, and even of perverting the religion’s name to actively support unjust practices. But a strong moral framework sustained by faith in a Creator of absolute goodness can and has encouraged political leaders to understand that they are not above the higher law and therefore should not govern arbitrarily or as if they were a law unto themselves.

As the PovertyCure film series shows, the rule of law is not self-sustaining. It rests on a moral culture that recognizes a higher order to which all people, including rulers, are subject. Without that foundation, laws become tools of power rather than guardians of justice, and prosperity withers into privilege for the few. The series demonstrates that societies which prize both the integrity of their laws and the moral principles that animate them give their citizens the greatest chance to flourish—economically, socially, and spiritually.