bailey-rule-of-law-apac by wuyunyi


									Rule of Law: A Key Governance
Indicator in Comparative
Government and Politics

Suzanne Bailey
APAC Presentation
July 16, 2010
Define: Rule of Law

 ▫ Set of rules either written or based on precedence
   that is applicable to all constituents of a society.
 ▫ Rules of game don’t change—nobody is above the
 ▫ A set of laws/procedures/rules that governs
   society and are consistently enforced, equally to all
   to all citizens regardless of status.
 ▫ All people are treated equally under the country’s
   legal procedures.
Sample Textbook Definitions:
• Almond/Powell, Comparative Politics Today:
 ▫ Process which protects individual rights by limits
   on arbitrary state power.
• Hauss, Comparative Politics:
 ▫ People are governed by clear and fair rules
   rather than by the arbitrary, personal exercise of
Sample Textbook Definitions:
• Kesselman, Introduction to Comparative

• O’Neil, Essentials of Comparative Politics:
 ▫ A system in which all individuals and groups,
   including those in government, are subject to the
   law, irrespective of their power or authority
United Nations Definition of Rule of
• A principle of governance in which all persons,
  institutions and entities, public and private,
  including the State itself, are accountable to laws
  that are publicly promulgated, equally enforced and
  independently adjudicated, and which are consistent
  with international human rights norms and
  standards. It requires, as well, measures to ensure
  adherence to the principles of supremacy of law,
  equality before the law, accountability to the law,
  fairness in the application of the law, separation of
  powers, participation in decision making, legal
  certainty, avoidance of arbitrariness and procedural
  and legal transparency.
AP Comparative Course Outline:
•   Introduction to Comparative Politics
•   Sovereignty, Authority, Power
•   Political Institutions:
•   Citizens, Society and the State
•   Political and Economic Change
•   Public Policy:
• Almond/Powell:
 ▫ Democracy: political system in which citizens
   enjoy a number of basic civil and political rights,
   and in which their most important political
   leaders are elected in free and fair elections and
   are accountable under a rule of law.
Liberal Consolidated Democracy:
• Protect:
  ▫ Basic Freedoms (substantive rights)
  ▫ Competitive Elections (procedural rights)
  ▫ Rule of Law
Freedom House
• Freedom in the World:
 ▫ Measurement of political rights and civil liberties

Freedom House
World Justice Project: Rule of Law
• Four Principles:
  ▫ The government and its officials are accountable under law.
  ▫ The laws are clear, publicized, stable and fair, and protect
    fundamental rights, including the security of persons and
  ▫ The process by which the laws are enacted, administered
    and enforced is accessible, fair, and efficient.
  ▫ Access to justice is provided by competent, independent,
    and ethical adjudicators, attorneys or representative, and
    judicial officers who are of sufficient number, have
    adequate resources, and reflect the makeup of the
    communities they serve.
World Justice Project
World Bank: Policymakers, civil society groups, aid
 donors, and scholars around the world increasingly
 agree that good governance matters for development.

Included in six Indicators of Governance:
  Rule of Law: the extent to which agents have confidence
  in and abide by the rules of society, including the
  quality of contract enforcement and property rights
Rank AP Comparative 6:
• On a scale of 1-6 with 1 being the highest—
   rank the AP Comparative 6 core countries on
   their adherence to rule of law.
World Bank Governance Indicators:
Rule of Law Indicator
Governance Indicator:
AP Comparative Course Outline:
• Judiciaries:
  ▫ Degrees of autonomy
     Independent courts
  ▫ Judicial Review (Including European Union in
    relation to states, citizens)
  ▫ Types of law
     Code or common law
     Religious Law
Law: Collection of rules laid down by
• Common Law: (case law): judicial decisions
  based on precedent (stare decisis). Emphasis on
  judicial independence to interpret the law.

• Code Law: detailed statutes produced and
  interpreted by the government. Code is
  authority not previous judicial decisions.

• Religious Law: Sharia (Islamic Law)
Common Law Countries
Sharia Law
Judicial System:
• Independent Court: The ability of judges to
  decide cases as they think appropriate,
  regardless of what other people, and especially
  powerful officials or institutions, desire.
Judicial Review:
• Ability of a court to overturn legislation or
  executive action.
  ▫ Centralized v. decentralized:

  ▫ Abstract v. concrete:
Great Britain
• Rule of law tradition:
  ▫ Magna Carta 1215
    Common law (case law): precedent:
    Independent court
• Measures:
  ▫ World Bank Governance Percentile Rank: 92.3
  ▫ Freedom House: PR-1, CL-1
Great Britain: Institutions
• Human Rights Act 1998: Rights guaranteed in
  the European Convention on Human Rights are
  secured in British courts.

• Supreme Court of the United Kingdom:
 ▫ No power of judicial review = may issue a
   declaration of incompatibility
The Supreme Court of the UK
Great Britain: European Union
• For the purpose of European construction, the Member States (now 27 in
  number) concluded treaties establishing first the European Communities
  and then a European Union, with institutions which adopt legal rules in
  specific areas.
• The Court of Justice of the European Union is the judicial institution of the
  European Union and of the European Atomic Energy Community
  (Euratom). It is made up of three courts: the Court of Justice, the General
  Court and the Civil Service Tribunal. Their primary task is to examine the
  legality of European Union measures and ensure the uniform interpretation
  and application of European Union law.
• Through its case-law, the Court of Justice has identified an obligation on
  administrations and national courts to apply EU law in full within their
  sphere of competence and to protect the rights conferred on citizens by that
  law (direct application of EU law), and to disapply any conflicting national
  provision, whether prior or subsequent to the EU provision (primacy of
  European Union law over national law).
European Court of Justice
• Rule of Law Tradition:
 ▫ Mao: minimize law (1949-1976 = few laws)—rely
   on party doctrine

 ▫ Deng: greater reliance on code law

 ▫ Jiang, Hu: increased emphasis on code law
• Measurements:

  ▫ Worldbank Governance Percentile Rank: 45
  ▫ Freedom House: PR-7, CL-6

• Institutions:
  ▫ Supreme People’s Court: no judicial review/not
    an independent court
• Rule of Law Tradition:
  ▫ British common law tradition
  ▫ Parallell system in Northern States since 2000 =
    sharia law adopted.
• Measurements:
  ▫ Freedom House: PR-5 CL-4
  ▫ World Bank Governance Percentile: 11.5

• Institutions:
  ▫ Supreme Court
Nigeria: Current Example
• LAGOS — The Supreme Court of Nigeria upheld the election of President Umaru Yar'Adua
  on Friday after more than a year and a half of legal battles and despite claims by two
  opposition leaders that he had gained the country's highest office by fraudulent means.
• In a 4-3 decision, the court dismissed the final challenge brought against the president and
  ruled that the prosecution, led by the former military leader Muhammadu Buhari and the
  ex-Vice President Atiku Abubakar, had not presented sufficient evidence to overturn the
• "The president and vice president remain the president and vice president of this country,"
  lead judge Niki Tobi said in a statement after the ruling was handed down in the capital,
• Local and international observers condemned the April 2007 elections as deeply flawed,
  citing nonexistent voting booths, stolen ballot boxes, intimidation by hired thugs, and at
  least 200 deaths in post-election violence.
• Despite Nigeria's long history of corruption and misrule, opposition leaders had some
  reason to hope this time; 10 state governors saw their elections overturned in the past year.
  Most of the re-run gubernatorial elections still went for the ruling party, however, and few
  expected the Supreme Court to rule against a president who had already been in office for
  19 months.
• Rule of Law Tradition:
 ▫ Napoleonic code law tradition
 ▫ Zedillo reforms: 1994
    Supreme Court Judges: fixed 15 year terms to
     increase independence
    Expanded judicial review powers of Supreme Court
     to declare acts of Congress and other federal actions
     unconstitutional by supermajority
• Measurements:
 ▫ Freedom House: PR-2, CL-3
 ▫ World Bank Governance Percentile Rank: 29.7
Mexico: Institutions (CIA Factbook)
• The judiciary is divided into federal and state court
  systems, with federal courts having jurisdiction over
  most civil cases and some major felonies. Under the
  constitution, trial and sentencing must be completed
  within 12 months of arrest for crimes that would carry at
  least a 2-year sentence. In practice, the judicial system
  often does not meet this requirement. Trial is by judge,
  not jury. Defendants have a right to counsel, and public
  defenders are available. Other rights include defense
  against self-incrimination, the right to confront one's
  accusers, and the right to a public trial. Supreme Court
  justices are appointed by the president and approved by
  the Senate. (See "Reforms" below for comments on
  judicial reform currently underway.)
• Tradition of rule of law:
  ▫ Rule by Shah
  ▫ Sharia law adopted in 1979 Constitution

• Measurement:
  ▫ Freedom House: PR-6, CL-6
  ▫ World Bank Governance Percentile Rank: 23

• Institutions:
  ▫ Chief Judge, Minister of Justice
  ▫ Supreme Court, special courts (revolutionary, clerical)
Iran Example:
• Shirin Ebadi:
 ▫ Book: Iran Awakening: One Woman’s Journey to
   Reclaim Her Life and Country. 2007.

• Tradition of rule of law:
  ▫   Rule by Czar
  ▫   Rule by CPSU
  ▫   Gorbachev: goal: law-governed state: code law
  ▫   Putin: dictatorship of law
• Measurements:
  ▫ Freedom House: PR-6, CL-5
  ▫ World Bank Governance Percentile Rank: 19.6
• Judicial Institutions:
  ▫ Constitutional Court(judicial review), Supreme Court
  ▫ The Procuracy, Advocates
• Mikhail Khodorkovsky:

• Putin’s Plan:
Concept/Country Comparison
                Legal System   Judicial Review Independent
China           Code law       No             No
Great Britain   Common law     No             Yes
Iran            Sharia         No             No
Nigeria         Common law     Yes            Yes
Russia          Code law       Yes            No
Mexico          Code law       Yes            Yes
AP Exam Questions: Multiple Choice
• Which of the following groups of countries all
  have code-law legal systems?
• A. Great Britain, Nigeria, Iran
• B. Great Britain, Russia, Nigeria
• C. China, Mexico, Iran
• D. China, Russia, Mexico
• E. Russia, Mexico, Great Britain
AP Exam Questions: Multiple Choice
• The political systems of Mexico, Nigeria, and
  Russia all have:
• A. Common-law legal systems
• B. Two-ballot systems for presidential selection.
• C. Effective independent judiciaries with
  judicial review
• D. Unitary systems with strong states and a
  weak central government
• E. Bicameral legislatures based partly on
  regions and partly on population.
AP Exams:
• Free Response:
• 2010
 ▫ Explain changes made during Putin’s presidency to
   make the Russian political system more authoritarian.
 ▫ Explain challenge to sovereignty of the parliament in
   Great Britain
 ▫ Identify and explain one specific condition within a
   political system that would enable civil society to
 ▫ Explain why citizens in both countries (Great Britain
   and Nigeria) might choose violent acts over more
   conventional forms of political participation.
The Economist: Economics and the rule of law:
 Order in the jungle, March 13, 2008.
Baker/Glasser. Kremlin Rising: Vladimir Putin’s
 Russia and the End of the Revolution. 2005.
         --Chapter 12: Dictatorship of the Law
Pan, Philip. Out of Mao’s Shadow. 2008
          --Chapter 10: The People’s Trial.
• Bogdanor, Vernon. The New British
  Constitution. 2009.
•      ---Chapter 3: The Human Rights Act

• Drogus/Orvis. Introducing Comparative
  Politics: Concepts and Cases in Context. 2009.

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