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The Importance of the Thin Conception of the Rule of Law for International Development: A Decision-Theoretic Account

Christopher D. Boom

Abstract

The rule of law is frequently claimed to be an important factor – if not a necessary element – for advancing international development. Among the development goals conformity with the rule of law has been thought to advance are economic growth, legal compliance, and respect for human dignity. Yet, as many commentators have observed, any attempt to draw straightforward conclusions about the relationship between the rule of law and these aims will inevitably be frustrated by the fact that there exist a number of very different understandings of what conformity to the rule of law consists in. In this paper, I draw attention to the distinction between competing “thin” and “thick” conceptions of the rule of law. Understandably, the thin conception’s relevance for advancing development aims has often been overlooked in favor of the thick conception’s. Nevertheless, I offer here a decision-theoretic analysis of the thin conception’s relationship to growth, compliance, and respect for dignity that justifies special focus on its significance for these areas. Specifically, I argue that, all things being equal, members of a state which violates the thin conception will have less incentive to engage in pro-growth conduct and/or more incentive to engage in anti-growth conduct, less incentive to comply with the law and/or more incentive to not comply, and will have less incentive to perform actions that will yield them greater utility and/or more incentive to perform actions that will yield them lower utility. In turn, this analysis predicts a negative relationship between violations of the thin conception and economic growth, legal compliance, and the amount of utility members of the state’s decisions will yield them.

References

Allan, T.R.S., The Sovereignty of Law: Freedom, Constitution, and Common Law (Oxford University Press, 2013).10.1093/acprof:oso/9780199685066.001.0001Search in Google Scholar

Baker, Tom, Alon Harel and Tamar Kugler, The Virtues of Uncertainty in Law: An Experimental Approach, 89 Iowa Law Review, no. 2 (2004).Search in Google Scholar

Belton, Rachel, Competing Definitions of the Rule of Law: Implications for Practitioners, Carnegie Papers, Rule of Law Series (Carnegie Endowment for International Peace, 2005), available at: <http://carnegieendowment.org/files/CP55.Belton.FINAL.pdf>, accessed 24 August 2015.Search in Google Scholar

Bergman, Marcelo, Tax Evasion and the Rule of Law in Latin America: The Political Culture of Cheating and Compliance in Argentina and Chile (Pennsylvania State University Press, 2009).Search in Google Scholar

Bergman, Marcelo, The Rule, The Law, and the Rule of Law: Improving Measurements and Content Validity, 33 Justice System Journal, no. 2 (2012).Search in Google Scholar

Bingham Centre for the Rule of Law, Mission Statement, available at: <http://binghamcentre.biicl.org/mission-statement>, accessed 24 August 2015.Search in Google Scholar

Bingham, Tom, The Rule of Law (Penguin Books, 2011).Search in Google Scholar

Boom, Christopher, “Reflections on the Rule of Law after NFIB v. Sebelius”, in Fritz Alhoff and Mark Hall (eds.), The Affordable Care Act Decision: Philosophical and Legal Implications (Routledge, 2014).Search in Google Scholar

Calfee, John and Richard Craswell, Some Effects of Uncertainty on Compliance with Legal Standards, 70 Virginia Law Review, no. 5 (1984).10.2307/1072946Search in Google Scholar

Carter, Ian. “Value-Freeness and Value-neutrality in the Analysis of Political Concepts,” in David Sobel, Peter Vallentyne and Steven Wall (eds.), Oxford Studies in Political Philosophy, Vol. 1 (Oxford University Press, 2015).10.1093/acprof:oso/9780199669530.003.0012Search in Google Scholar

Chen, Ding and Simon Deakin, On Heaven’s Lathe: State, Rule of Law, and Economic Development, 8 Law and Development Review, no. 1 (2015).10.1515/ldr-2014-0031Search in Google Scholar

Conley, Sarah, Against Autonomy: Justifying Coercive Paternalism (Cambridge University Press, 2013).10.1017/CBO9781139176101Search in Google Scholar

Richard Craswell and John Calfee, Deterrence and Uncertain Legal Standards, 2 Journal of Law, Economics, and Organization, no. 2 (1986).Search in Google Scholar

Craig, Paul, Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework, 21 Public Law (1997).10.4324/9781315085302-4Search in Google Scholar

Dicey, A.V., Introduction to the Study of the Law of the Constitution (Liberty Fund, 1982).Search in Google Scholar

Dworkin, Ronald, Taking Rights Seriously (Harvard University Press, 1978).Search in Google Scholar

Dworkin, Ronald, A Matter of Principle (Harvard University Press, 1985).Search in Google Scholar

Dworkin, Ronald, Law’s Empire (Harvard University Press, 1986).Search in Google Scholar

Dworkin, Ronald, Justice in Robes (Harvard University Press, 2006).Search in Google Scholar

Dworkin, Ronald, Justice for Hedgehogs (Harvard University Press, 2011).10.2307/j.ctvjf9vktSearch in Google Scholar

Dworkin, Ronald, The Rule of Law, Law of Ukraine: Legal Journal, no. 4 (2013)10.2307/4637281Search in Google Scholar

Epstein, Richard, Design for Liberty: Private Property, Public Administration, and the Rule of Law (Harvard University Press, 2012).10.4159/harvard.9780674063051Search in Google Scholar

Fallon, Richard. “The Rule of Law” as a Concept in Constitutional Discourse, 97 Columbia Law Review, no. 1 (1997).10.2307/1123446Search in Google Scholar

Feldman, Yuval and Doron Teichman, Are All Legal Probabilities Created Equal?, 84 New York University Law Review, no. 4 (2009).10.2139/ssrn.963202Search in Google Scholar

Finnis, John, Natural Law and Natural Rights (2nd ed., New York, NY: Oxford University Press, 2011).Search in Google Scholar

Fox-Decent, Evan. Is the Rule of Law Really Indifferent to Human Rights?, 27 Law and Philosophy, no. 6 (2008).10.1007/s10982-008-9027-9Search in Google Scholar

Fuller, Lon, A Reply to Professors Cohen and Dworkin, 10 Villanova Law Review, no. 5 (1965).Search in Google Scholar

Fuller, Lon, The Morality of Law (Rev. ed., New Haven, CT: Yale University Press. 1969).Search in Google Scholar

Gallant, Kenneth, The Principle of Legality in International and Comparative Criminal Law (Cambridge: Cambridge University Press, 2010).Search in Google Scholar

Gallie, W.B., Essentially Contested Concepts, 56 Proceedings of the Aristotelian Society (1956).10.7591/9781501741319-010Search in Google Scholar

Gardner, John, Law as a Leap of Faith: Essays on Law in General (Oxford University Press, 2012).10.1093/acprof:oso/9780199695553.001.0001Search in Google Scholar

Gintis, Herbert, The Bounds of Reason: Game Theory and the Unification of the Behavioral Sciences (Princeton University Press, 2009).Search in Google Scholar

Gowder, Paul, The Rule of Law and Equality, 32 Law and Philosophy, no. 5 (2013).10.1007/s10982-012-9161-2Search in Google Scholar

Hacking, Ian, An Introduction to Probability and Inductive Logic (Cambridge University Press, 2001).10.1017/CBO9780511801297Search in Google Scholar

Stephen Haggard, Andrew MacIntyre and Lydia Tiede. The Rule of Law and Economic Development, 11 Annual Review of Political Science (2008)10.1146/annurev.polisci.10.081205.100244Search in Google Scholar

Haggard, Stephen and Lydia Tiede, The Rule of Law and Economic Growth: Where are We?, 39 World Development, no. 5 (2011).10.1016/j.worlddev.2010.10.007Search in Google Scholar

Hart, H.L.A., The Concept of Law (2nd ed., Oxford: Oxford University Press, 1994).Search in Google Scholar

Hayek, Friedrich, The Constitution of Liberty (Def. ed., Chicago: University of Chicago Press, 2011).10.7208/chicago/9780226320519.001.0001Search in Google Scholar

Kramer, Matthew, The Big Bad Wolf: Legal Positivism and its Detractors, 49 American Journal of Jurisprudence, no. 1 (2004).10.1093/ajj/49.1.1Search in Google Scholar

Kramer, Matthew, Objectivity and the Rule of Law (Oxford University Press, 2007).10.1017/CBO9780511619014Search in Google Scholar

Lee, Yong-Shik, Call for a New Analytical Model for Law and Development, 8 Law and Development Review, no. 1 (2015).10.1515/ldr-2015-0011Search in Google Scholar

Lewis, V. Bradley, Higher Law and the Rule of Law: The Platonic Origin of an Ideal, 36 Pepperdine Law Review, no. 5 (2012).Search in Google Scholar

Locke, John, Two Treatises of Government (Student ed., Cambridge, UK: Cambridge University Press, 1988).10.1017/CBO9780511810268Search in Google Scholar

Luban, David, The Rule of Law and Human Dignity: Re-examining Fuller’s Canons, 2 Hague Journal on the Rule of Law, no. 1 (2010).10.1017/S1876404510100025Search in Google Scholar

Møller, Jørgen and Svend-Erik Skaaning, The Rule of Law: Definitions, Measures, Patterns and Causes (Palgrave Macmillan, 2014).10.1057/9781137320612Search in Google Scholar

Plato, Laws (University of Chicago Press, 1980).Search in Google Scholar

Radin, Margaret, Reconsidering the Rule of Law, 69 Boston University Law Review, no. 4 (1989).10.4324/9781315085302-2Search in Google Scholar

Raz, Joseph, The Authority of Law: Essays on Law and Morality (2nd ed., Oxford: Oxford University Press, 2009).Search in Google Scholar

Sarsfield, Rodolfo, The Bribe Game: Microfoundations of Corruption in Mexico, 33 Justice System Journal, no. 2 (2012).Search in Google Scholar

Sen, Amartya, “Global Justice”, in James Heckman, Robert Nelson, and Lee Cabatingan (eds.), Global Perspectives on the Rule of Law (Routledge, 2010).Search in Google Scholar

Shapiro, Scott, Legality (Harvard University Press, 2011).10.2307/j.ctvjnrsd5Search in Google Scholar

Simmonds, Nigel, Straightforwardly False: The Collapse of Kramer’s Positivism, 63 Cambridge Law Journal, no. 1 (2004).10.1017/S000819730400652XSearch in Google Scholar

Tamanaha, Brian, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004).10.1017/CBO9780511812378Search in Google Scholar

Tamanaha, Brian, The Rule of Law and Legal Pluralism in Development, 3 Hague Journal on the Rule of Law, no. 1 (2011).10.1017/CBO9781139094597.005Search in Google Scholar

Tamanaha, Brian, The Primacy of Society and the Failures of Law and Development, 44 Cornell International Law Journal, no. 2 (2011).Search in Google Scholar

Thaler, Richard, Misbehaving: The Making of Behavioral Economics (W.V. Norton & Company, 2015).Search in Google Scholar

Tyler, Tom, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 Crime and Justice (2003).10.1086/652233Search in Google Scholar

Upham, Frank, Mythmaking in the Rule of Law Orthodoxy, Carnegie Papers, Rule of Law Series (Carnegie Endowment for International Peace, 2005), available at: <http://carnegieendowment.org/files/wp30.pdf>, accessed 24 August 2015.Search in Google Scholar

Waldron, Jeremy, The Rule of Law in Contemporary Liberal Theory, 2 Ratio Juris, no. 1 (1989).10.1111/j.1467-9337.1989.tb00028.xSearch in Google Scholar

Waldron, Jeremy, Is the Rule of Law an Essentially Contested Concept (in Florida)?, 21 Law and Philosophy, no. 2 (2002).10.4324/9781315085302-5Search in Google Scholar

Waldron, Jeremy, How Law Protects Dignity, 71 Cambridge Law Journal, no. 1 (2012).10.1017/S0008197312000256Search in Google Scholar

Waldron, Jeremy, The Rule of Law and the Measure of Property (Cambridge University Press, 2012).10.1017/CBO9781139169318Search in Google Scholar

Waldron, Jeremy. “Is Dignity the Foundation of Human Rights?”, in Rowan Cruft, S. Matthew Liao and Massimo Renzo (eds.), The Philosophical Foundations of Human Rights (Oxford University Press, 2015).10.1093/acprof:oso/9780199688623.003.0006Search in Google Scholar

Weingast, Barry, The Political Foundations of Democracy and the Rule of Law, 91 American Political Science Review, no. 2 (1997).10.2307/2952354Search in Google Scholar

Published Online: 2015-12-1
Published in Print: 2015-12-1

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