Introduction

Initially, the strategic objectives of the RLE were clear.  As set out in some of the key World Bank documents, the RLE was designed to establish legal frameworks friendly to market reforms (World Bank 1992, World Bank 1995). Accordingly, the formula proposed was simple: general laws that were properly drafted and fairly enforced would yield instant economic benefits. The simplicity of this formula is perhaps the reason why, in the early days of the RLE, its practitioners saw no need to enter into a dialogue with academics with experience of legal reform in developing countries. Moreover the simplicity of the proposed formula also led to unrealistic expectations and to intense optimism that observers with experience in developing countries probably regarded as both arrogant and naïve.

It is unlikely that practitioners will lose sleep over the tension identified above between the RLE’s conceptual framework and its broad agenda. Yet, whether or not they are interested in theory, the expansion of the RLE is creating unexpected problems. Indeed, officials involved in designing and implementing RLE projects are becoming increasingly aware that there are no ‘quick fixes’ in the area of legal and judicial reform (Hammergren 2003). Moreover, recipient countries also have mixed feelings about the enterprise. Some complain that the agencies are far too intrusive and prescriptive, while others (often the same officials) claim that international agencies do not offer adequate technical support (Angell and Faundez 2005). Promoters of the RLE enterprise have responded by making small adjustment to their projects, but, so far, they have not significantly changed their approach or revised their methodology.

Given the sudden expansion of the RLE, it is not surprising that officials responsible for the implementation of these programmes find the process difficult and frustrating. They soon become aware that legal systems do not exist in isolation and realise that tinkering with one of its components brings about unexpected responses and resistance from other parts of the system. They also soon realise that legal systems are part of wider mechanisms of political and economic domination, and, that vested interests cannot be ignored or wished away. These are mammoth problems. Officials in the operations departments of international organizations, bilateral donor agencies and NGOs cannot be expected to resolve them. Under these conditions, the patience and dedication of these officials, as well as their often-excellent achievements, are remarkable (Biebesheimer and Payne 2001).

In practical terms, the response to the problems identified above has been to press ahead in the hope that practice and experience will yield the right answer. This pragmatic response has the advantage that it is seemingly flexible. Indeed, in recent years, RLE practitioners have become increasingly willing publicly to admit that not all is well with legal and judicial reform. Thus the phrase ‘lessons learned’ is often found in official publications on the RLE (World Bank 2004: 12-14). But what is described as lessons learned is so general that it is unclear whether this acknowledgement can make any difference. Thus, among the lessons that supposedly have been learned are the following: that the process of legal and institutional reform is slow and that one size does not fit all.

It is difficult to believe that Bank officials were not aware, prior to launching the RLE, that there are no quick fixes in the area of institutional reform. It is also difficult to believe that promoters of the RLE genuinely believed that one size fits all. It must be conceded, however, that the current response that perhaps one size does not fit all is attractive as it suggests that RLE practitioners are indeed learning lessons and that, in future, legal and judicial reform projects will be carefully tailored to fit the needs of recipient countries. There is, however, little evidence that those in charge of the design and implementation of rule of law projects have been given the time and resources to do so. In any event, the problem is not whether one size fits all. Indeed, in some areas of legal practice, it could well be that one size does fit a variety of different contexts.

The process of legal harmonisation, which under the aegis of globalization has acquired new impetus, is pervasive. Thus, in areas such as environmental regulation, competition policy or central banking, it does seem that one size fits all. Moreover, the growth of the human rights movement has extended the process of harmonization to areas of the law that are not directly related to the management of the economy. Thus, the issue is not whether one size fits all, but about understanding the impact of institutional and legal reform on legal and political systems. Unless this impact is adequately considered, the phrase ‘lessons learned’ is simply another way of saying ‘we will muddle through’ and hope for the best. This approach undoubtedly has some appeal among common law lawyers (Feeley and Rubin 1998). I wonder, however, how governments would respond if they became aware that RLE projects, some of which they purchase at considerable expense, are not technically safe or reliable.

The Vanishing Development Objective

While RLE practitioners muddle through in the expectation that experience will help them find answers to the problems of implementation, the strategic question as to why they are involved in legal and institutional reform does not go away. This question is not raised by the anti globalization movement, but by mainstream economists, multilateral bank evaluation offices and government agencies. While in this area it is difficult to disentangle genuine intellectual and policy disagreements from bureaucratic turf wars, there is, undoubtedly, a current of opinion within multilateral development banks that is beginning to question whether the RLE has any bearing on concrete development objectives (Meltzer Commission Report 2000, United States General Accounting Office 2001, World Bank 2002, Lerrick 2002). Accordingly, economists at some of these institutions are beginning to demand hard evidence that improvements in the legal system have a measurable impact on the process of economic growth. Since the evidence is not forthcoming, the tension between development economists and RLE practitioners is not likely to subside (Messick 1999).

It is ironic that some economists are now beginning to express frustration and disenchantment with the RLE. After all, the launching pad of the RLE was an economic theory that proclaimed the centrality of the market in social relations and called for a shift from old-fashioned development projects (dams, bridges and roads) to institutional infrastructure (law and good governance). Perhaps the concern of development economists reflects a deeper anxiety about the state of the sub-field of development economics (Ranis 2004). Apart from the pressure from economists, leading experts on law and economics also view the RLE with a certain amount of scepticism.

Thus, for example, Richard Posner – one of the main exponents of the law and economic movement - has questioned whether comprehensive legal reform is necessary to bring about efficient economic outcomes (Posner 1998). Other academic observers have also expressed scepticism as to whether improvements in the law will necessarily yield better economic outcomes (Davis and Trebilcock 2001, Cross 2002). The various Asian economic miracles (tigers and dragons) are a reminder that perhaps the RLE, as presently conceived and implemented, is not likely to achieve either improved economic outcomes or improvements in the quality of governance (Pistor and Wellons 1999). RLE practitioners can, of course, respond to this criticism. They can point out that their projects are relevant to economic development because law pervades every aspect of social life. But such a response merely underscores the ambiguity of the RLE.

Regime Change or Tinkering

As RLE practitioners continue to ‘muddle through’, external observers have good reasons to be puzzled. Indeed, from an external perspective, the RLE appears to oscillate between the seemingly innocuous goal of improving the physical and technological infrastructure of courts and the more ambitious task of carrying out a complete overhaul of legal systems – a task that comes dangerously close to the controversial notion of regime change (Faundez 2003). If the RLE merely seeks improvement in the design and delivery of legal services - such as, for example, simplifying tax laws, updating regulatory frameworks or improving the management of courts – it may be regarded as a technical operation that can be safely entrusted to lawyers and public administration specialists. If, on the other hand, the RLE seeks a more profound transformation of legal systems – as was the case in some of the former socialist countries and in developing countries affected by civil strife (East Timor, Rwanda, Guatemala) - then the technical aspects of law recede as political factors relating to regimes and constitutional arrangements acquire greater prominence.

Perhaps promoters of the RLE believe that, by using the word ‘governance’, they can circumvent the ambiguity noted above. The choice of the word, governance, however, is odd since its meaning is imprecise. The Concise Oxford Dictionary defines governance, as “the act or manner of governing”. So the word governance is helpful precisely because it is ambiguous. It helps to raise the profile of modest projects of legal reform while it conceals the complexity and intrusiveness of projects that seek more profound legal change. Since all RLE projects can be described as projects seeking ‘improvements in governance’ they all acquire a technical aura that is often not justified.

The political nature of much of the activity that falls under the umbrella of the RLE cannot, however, be easily ignored. The use of the word governance to describe these activities does not have the expected sanitising effects, nor does it remove the complexity, or the political implications, of many aspects of the process of legal and political reform. Moreover, as anyone familiar with law knows, even innocuous changes to the legal system often have unanticipated social and political consequences.

A Methodological Shortcut

RLE practitioners, undoubtedly, are fully aware of the political implications of their activities. Yet, there are legal reasons that explain their reluctance to confront them. The old international financial institutions (World Bank and IMF), as well as the United Nations, are constrained by their charters from venturing into political areas. The post-war settlement that left the world divided into two opposing camps brought about respect for state sovereignty and, as a corollary, the prohibition to intervene in the internal affairs of states. While the principle of non-intervention was not widely respected, it did influence the way international economic organizations defined their mission. In order to reassure its members that involvement in matters concerning economic development was not political, the constitutional charters of the World Bank and its affiliates defined their mission as purely technical.

Accordingly, concerns about law and legal institutions did not fall within the scope of their jurisdiction. This constitutional constraint explains why the World Bank has been unwilling to update its RLE strategy. If the new strategy were faithfully to reflect the whole gamut of activities that currently fall within the RLE, it would inevitably be dismissed on the ground that it is not ‘market friendly’. It would also be challenged as inconsistent with the Bank’s mission of promoting economic development.

This constraint has influenced the way RLE practitioners approach their work. They see it as primarily technical and exclusively legal. In terms of legal theory, I would characterise their response as a curious blend of legal formalism and legal instrumentalism. While legal formalism reassures RLE practitioners that legal systems are self-contained and can be changed without the contamination of politics; legal instrumentalism reassures them that once formal law is in place well trained judges and dynamic commercial lawyers will move the legal edifice in the right direction. Although this response is misguided, I fully understand why RLE practitioners embrace it.

After all, officials working for IFIs have a job to do, and the tools in the lawyers’ kit promise to deliver the desired results. These tools, however, are virtually all drawn from rules and legal institutions found in the legal systems of OECD countries, especially the USA. In practice, however, their misguided belief in the virtues of legal formalism and in the capacity of lawyers and judges to bring about social change has transformed the imported rules and institutions into universal benchmarks. The blend of legal formalism and instrumentalism is a convenient methodological shortcut as it enables RLE practitioners to offer legal advice without having to go through the tedious, difficult and often unrewarding task of understanding the societies they purport to help. The World Bank, bilateral donors and even some NGOs working in the area of human rights welcome this methodological shortcut as it ensures the delivery of legal products that are standardised and familiar.

In this way, ‘due process’, ‘judicial review’ and ‘constitutionalism’ acquire an aura that detaches them from their historical origins and transforms them into moral and political imperatives that are used to measure and evaluate the quality of governance and the efficiency of legal systems. Insofar as RLE practitioners continue to regard law as a merely technical artefact they have little to gain from entering into a dialogue with academics. Such a dialogue will either yield technical legal information they already know or raise political issues that they would rather avoid. Under these circumstances, a fruitful dialogue between RLE practitioners and academics is highly unlikely.

Law and Political Development

Fear of Politics

Development agencies are not alone in their reluctance to confront the political implications of RLE. Academic lawyers with interest in the area of development have the same aversion towards politics. Indeed, fear of politics was one of the factors that brought about the demise of the US-based law and development movement of the 1960s and early 1970s (Gardner 1980). Inspired by the success of the civil rights movement in the United States, the distinguished academics who launched the law and development movement set out to improve the efficiency of legal systems in developing countries, in particular the mechanisms that facilitate the exercise of rights. Their expectation was that a modern and effective legal system would bring about political benefits and greater social justice to the worst-off sections of the population.

Bringing Political Scientists Back In

If practitioners and academic lawyers are reluctant to explore the political implications of the RLE, it is only natural to seek enlightenment from political scientists. But this is not an area where most political scientists have expertise. Indeed, until recently, political scientists had no interest in law and legal institutions. Their focus of analysis was mainly on the political behaviour of groups and individuals, and they regarded the study of institutions as unscientific on the ground that it was either purely descriptive or excessively normative. As a consequence, the study of constitutionalism or the rule of law did not fall within their brief.

The disregard for law and legal institutions was also reflected in the approach of political scientists and economists working in the area of development studies. The development paradigm that prevailed during the 1960s and 1970s was based on the assumption that economic growth followed a pre-determined route, and each stage along the way was associated with a specific level of institutional development (Rostow 1960). This stage-by-stage approach to economic growth was complemented by Lipset’s celebrated theory on the prerequisites of democracy (Lipset 1959). According to this theory, most developing countries were unlikely in the near future to meet the requirements of a democratic polity – understood as liberal democracy.

Since the rule of law is regarded as a distinctive feature of advanced liberal democracies, it is not surprising that law and legal institutions were of no concern to scholars working in the field of political development. Indeed, their concern was mainly with stability and the containment of political mobilisation (Bermeo 1997). Thus, specialists in political development would not have favoured the extension of rights to subordinate groups, as this would have been seen as a threat to political stability (Huntington 1968, Huntington and Nelson 1976).

The collapse of the Soviet Union and the recent wave of democratization brought about renewed interest in the study of institutions. Scholars specialising in the study of democratic transitions could not fail to notice that law and legal institutions played a role in the establishment and consolidation of democratic regimes. They have thus begun to turn their attention towards RLE topics such as judicial independence, constitutionalism, systems of legal accountability and access to justice. This shift of focus by political scientists has generated substantial research output, some of which is extremely useful and insightful (Bill Chavez 2004, Eckstein and Wickham-Crowley 2003). On the whole, however, there is little evidence of a theoretical breakthrough.

According to Guillermo O’Donnell, there are two reasons that explain the difficulties political scientist face when they attempt to engage with issues relating to the RLE. First, political scientists are not trained to observe the highly disaggregated qualitative data generated by the study of institutions. And secondly, political scientists do not have the required legal knowledge to understand how institutions work. O’Donnell is not optimistic about the prospects for overcoming these obstacles. In his view, “[I]n settings where career and promotion patterns place a prize on working on mainstream topics and approaches, the transdisciplinary skills required by these phenomena and, at least for the time being, the difficulties in translating findings into solid and comparable data sets are a discouraging factor for this type of research” (O’Donnell 1999, 333-4). Perhaps this assessment is too bleak, but it does suggest that bringing political scientists into the RLE will not instantly resolve the ambiguities and misconceptions that have plagued this process from its inception nearly two decades ago.

There are, however, reasons, to be sceptic. The recent wave of democratization appears to be having a negative, unintended, effect on the study of politics in developing countries. This effect appears to stem from an interesting process of theoretical and methodological convergence: political scientists who study democracy in developing countries are using the same theories and methods of colleagues studying similar processes in well-established democracies. This convergence, prompted and nurtured by the pervasive influence of neoclassical economics on all the social sciences, has brought about a decline in area studies since specialisation in one region of the world, or a small group of countries, is no longer seen as cost effective. As Barbara Geddes in her excellent survey of the sub-field explains, scholars who concentrate exclusively in one area are hindered in theory testing because they know nothing, or very little, about countries in other regions (Geddes 2002). Conversely, it is now possible to become an expert on democratization in developing countries without having specialist knowledge of their history or political institutions.

The theoretical and methodological convergence noted by Geddes in the study of democratic processes is also evident in studies by political scientists on topics that relate to the RLE. Indeed, many of these scholars approach the study of legal systems in developing countries as if it were no different from that in developed countries. They thus tend to regard legal institutions in developed countries as models of best practice that have to be emulated by developing countries. As a consequence, these studies sidestep the complexity of the role of law in political processes and end up replicating the formalistic and instrumental approach of RLE practitioners. Absent from these studies is any concern about whether all or even any of the legal institutions they urge new democracies to embrace are appropriate. Thus, for example, a recent study on the impediments to judicial reform in Latin America opens up with the following statement:

“The rule of law is necessary for the political stabilization of liberal democracy. Only through the establishment of an enforceable, binding and predictable rule of law can countries in Latin America adopt the political rules required for the development of a strong competitive democracy. An independent judiciary is one of the core institutions necessary for the principle of separation of powers…Typically, judiciaries in Latin America are weak, over-politicised and heavily dependent on and subordinate to the executive branch. They often fail to act as effective mechanisms of political checks and controls (Buscaglia and Domingo 1997.)”

A Democratic Rule of Law

Rediscovering Law

It is disappointing that political scientists who have embarked on the study of legal and judicial reform fail to reflect upon the wider theoretical implications of their work. A notable exception to this trend is Guillermo O’Donnell. After writing extensively on transitions to democracy, he has turned his attention to issues relating to the rule of law. Although his views on this topic are tentative, they are worth considering as they raise important issues that his colleagues have overlooked. In the interest of brevity I shall focus mainly on the argument that O’Donnell presents in two recent publications, “Polyarchies and the (Un) Rule of Law in Latin America: A Partial Conclusion” (O’Donnell 1999, hereafter Polyarchies) and “Why the Rule of Law Matters” (O’Donnell 2004, hereafter Rule of Law). I will not consider his wider ideas about politics and economics, nor will I consider his valuable contribution to the study of democratic transitions. As a consequence, what follows is incomplete schematic and provisional. I trust, however, that it fairly represents his views on this topic.

The question that concerns O’Donnell is as difficult as it is important. It relates to the tension between political equality and the pervasive social and economic inequalities that prevail in most developing countries. How, asks O’Donnell, can new democracies in Latin America and other developing countries escape the destabilising effects of this tension? His answer is disarmingly simple: the new democratic regimes must take seriously the rule of law. The suggestion that new democracies should take the rule of law seriously is, on the surface, persuasive. Indeed, the legal system and legal institutions of most developing countries are often weak and corrupt. Latin American countries, for example, have perfectly drafted constitutions and comprehensive legal codes that are technically adequate and cover virtually every conceivable eventuality. But since many do not fully, or fairly, enforce their constitutions or legal codes, the argument that law ought to be taken seriously seems compelling. Yet, the force of this argument depends on whether its premise is valid: that until now law in Latin America has been a decorative device devoid of social and economic content.

A close scrutiny of the evolution of legal and political systems in Latin America suggests that law has been a lot more than a decorative artefact While many of the rights enshrined in the constitution or legal codes are not enforced or applied fairly to all citizens, they are not dead letter or a mere formality. Legal rules define who participates in the political process, justify and legitimise the treatment of workers and, most importantly, provide a predictable framework to structure commercial transactions both locally and internationally. Legal systems play a crucial role in shaping social and political processes. The rules of the legal system, however, are not always universally and fairly applied. The law may be fair to members of the political and commercial elites, but tough and unforgiving towards those excluded from this circle. Legal systems, though imperfect, are not empty vessels detached from politics waiting to be filled with content. This analysis also applies to legal systems in other regions (Channock 1989, Dev 1965, Mamdani 1990).

O’Donnell is, of course, aware of the many shortcomings of legal systems in developing countries and regards these shortcomings as an impediment to the progress of democracy. His assessment of the performance of the new democracies in Latin America is gloomy and depressingly familiar (Polyarchies 312-313). In most of these countries the state bureaucracy does not respect the citizens, discrimination against women and minorities is rampant, ordinary people do not have access to the judiciary and general lawlessness, especially in large cities, is the norm. This bleak diagnosis suggests that the unstable social and economic conditions prevailing in Latin American threatens to undermine democracy, thus raising the possibility of a return to populism or authoritarianism.

According to O’Donnell, this outcome can be avoided if countries observe the rule of law. His suggestion is a major departure from the approach taken by political development specialists of the 1960s and early 1970s. Instead of regarding the rule of law as the outcome of successful policies of economic development, O’Donnell sees the rule of law as the means to sustaining democratic regimes and resolving social and economic inequalities.

Reviving Legal Formalism

O’Donnell’s notion of the rule of law is based on a list of formal attributes identified by Joseph Raz in an article appropriately entitled ‘The Rule of Law and its Virtue’ (Raz 1977). Raz identifies eight attributes associated with the rule of law: laws must be prospective, stable and general; the judiciary must be independent, principles of natural justice (due process) must be observed, courts should have review powers, they should be easily accessible and prosecutors should not have excessive discretion. Raz’s list is not original and he does not present it as such. Most legal theorists would have no difficulties embracing it. Yet, I suspect that scholars who, from different perspectives, have studied the role of law in society would regard O’Donnell’s embrace of this formalistic conception of the rule of law as somewhat disappointing.

After all, the shortcomings of purely formal approaches to the study of law have been amply demonstrated in the work of scholars from widely different perspectives, including social theorists (Habermas 1996, Unger 1976), historians (Benton 2002, Tilly 1998), legal anthropologists (Geertz 1983, Mamdani 1996, Merry 2000, Nader 1990) and legal academics (Chanock 1985, Trubek 1972). The work of this diverse group of scholars shows that law is deeply embedded in social practices and that formalistic conceptions of the rule of law are not reliable guides to understanding the relationship between legal and political processes.

O’Donnell does not, of course, believe that compliance with the rule of law will instantly stabilise democracy and contribute towards resolving the tension between political equality and socio-economic inequality. Indeed, he acknowledges that rule by law (or mere legalism) often leads to deepen the tension identified above. Instead, what he suggests is that the rule of law is an indispensable component of democracy and, as such, what he proposes is not revival of formalism but greater awareness that democracy and the rule of law are complementary. Thus, the virtues attached to the rule of law are also virtues of the democratic process. He thus calls for the establishment of a genuinely democratic rule of law. According to him, a democratic rule of law has three characteristics: “1) It upholds the political rights, freedoms and guarantees of a democratic regime; 2) it upholds the civil rights of the whole population; and 3) it establishes networks of responsibility and accountability which entail that all public and private agents, including the highest state officials, are subject to appropriate, legally established controls on the lawfulness of their acts” (Rule of Law 36).

The notion of a democratic rule of law is more overtly political than Raz’s list of rule of law virtues, yet it is still formalistic. Indeed, it does not go beyond the traditional notion of constitutionalism as limited government (Sartori 1962). As such, it does not tell us how law can provide a platform to bring about both a reduction of socio-economic inequalities and a strengthening of political democracy. In order to understand O’Donnell’s faith in the rule of law, it is necessary to bear in mind that he makes an important distinction between the nature of a country’s political regime and the nature of its state. A democratic political regime (one where public authorities are selected by free and competitive elections) may obtain within a state that is far from democratic.

This is indeed his complaint about the state of democracy in most Latin American countries today. He is thus critical of political scientists who focus exclusively on the nature of political regimes to determine whether a country is democratic. He correctly points out that, in order to determine whether a state is democratic, it is necessary to look closely at the way the legal system works. The legal system, according to O’Donnell, is an intermediate level that stands between the political regime and the socio-economic foundations of state and society.

Understanding how this intermediate level works is also important because, according to O’Donnell, legal systems and institutions have a major impact upon the way traditional political institutions, such as parties, parliaments and congresses, work or fail to work (Polyarchy 315). But understanding the nature and impact of legal systems is not only of academic interest. It has practical importance because compliance with its precepts can bridge the gap between political equality and socio-economic inequality, thus contributing towards consolidating the quality of democracy.

If political scientists and other social scientists were seriously to carry out O’Donnell’s research agenda, they would greatly contribute to enlightening RLE practitioners. Yet, however valuable O’Donnell’s research agenda may be, it does not tell us how compliance with the rule of law can achieve the social and economic transformations required to strengthen and enhance the quality of democracy.

Rights and Political Regimes

O’Donnell’s confidence in the rule of law stems from his conception about rights. He notes that in old democracies or as he calls them elsewhere, “the originating countries” (O’Donnell 2001), political rights were extended to citizens only after civil rights had been extensively recognised. Moreover, in those same countries, the recognition of social rights occurred at a much later stage (Polyarchies 309). By contrast, today, new democracies in developing countries recognise the political equality of citizens, even though civil and social rights are not widely respected. But these democracies do, however, formally recognise that civil rights of a universal character attach to individuals irrespective of their social position.

According to O’Donnell these formal rights ought not to be lightly dismissed since “when conquered and exercised, they provide a valuable foundation for struggling for more specific and substantive rights” (Polyarchies, 323). He underscores the political importance of the rights of legal subject by pointing out that the close relationship between legal rights and the political rights of citizens: “the formal rights and obligations attached by polyarchy to political citizenship are a subset of the rights and obligations attached to a legal person” (Polyarchies, 308). By this he means that the exercise of political rights by citizens presupposes that they already enjoy rights such as the right of association and free speech, which are also civil rights. He thus refers to the rights enjoyed by members of these new polyarchies as rights of civil citizenship.

O’Donnell’s argument about the intimate relationship between political and civil rights is important, but, unfortunately, somewhat nebulous. It would have been helpful had he expanded his theoretical and historical analysis on this point. In any event, there is little doubt that O’Donnell, while acknowledging the importance of formal rights, does not regard rights as empty shells. He regards rights as the product of social and political struggles. Law, under his conception, is not a mere technique for ordering social relations, but “a dynamic condensation of power relations” (Polyarchies 323). The question that arises, however, is whether and how this dynamic historical conception about the evolution of rights relates to his conception of democracy. It is at this point that O’Donnell’s theoretical analysis becomes problematic.

O’Donnell endorses a minimalist view of democracy. A country is democratic if it holds regular competitive elections, citizens enjoy freedom of expression, including a free press, and can join and create organizations, including political parties (Polyarchies 394). He explicitly rejects a broader or substantive view of democracy on the ground that it often leads to or conceals populist or authoritarian objectives. Indeed, he attributes the legacy of dictatorship in Latin America during the 1960s and 1970s precisely to these unrealistic conceptions about the nature of democracy. Thus not surprisingly, elsewhere, he describes his conception of democracy as ‘realistic (O’Donnell 2001).

How does O’Donnell’s dynamic and historical conception of rights relate to its ‘realistic’ conception of democracy? Since O’Donnell’s conception of democracy closely resembles that of Joseph Schumpeter’s, we can assume that this is a democracy in which the scope of politics is limited and hence, political participation is largely confined to the ballot box (Schumpeter 1943: 269-283). Citizens are not encouraged to make use of political channels to demand social and economic change as this would pollute and destabilise the political regime. If this is so, then how can the tension that O’Donnell rightly identifies between political equality, on the one hand, and social and economic inequality on the other, be resolved?

One possible answer is that individuals in their capacity as legal subjects (not as citizens) ought to pursue improvements in their social and economic status through the deployment of rights in the private sphere – that is, the market. Under this conception, the rule of law, acting as a neutral framework that is not committed to substantive outcomes, provides the tools (formal rights and a strong judiciary) that enable the political system to divert economic and social demands of its citizens away from political channels and into the more tranquil framework of private law and the courts. This view about the operation of the rule of law complements and reinforces a conception of democracy that severely restricts the scope of political participation.

Neither Huntington nor Hayek would disagree with it. Huntington would endorse it because it responds to his concern about the excesses of political participation (Huntington 1968). Hayek would endorse it because he did not believe governments should seek to achieve social justice since any such attempt would interfere with efficient market outcomes, lead to an inordinate increase of state power and end up by undermining democracy (Hayek 1976). Given that O’ Donnell regards the struggle over the extension of rights as a dynamic historical struggle, it is unlikely that he would endorse the implications resulting from the view that the transformation of formal – civil and social – rights can take place solely, or mainly, through the courts.

But, if the struggle to transform formal rights into substantive rights is acknowledged as political, it is difficult to see how it can be reconciled with his formal and procedural conception about democracy. The demands for the full extension of civil and social rights to citizens presuppose an increase in political participation and greater public concern for substantive equality. As such, it would have a destabilising effect on the political regime and would probably soon give way to the populist or authoritarian tendencies that O’Donnell’s restricted view of democracy seeks to avoid. Thus, it seems that O’Donnell’s democratic rule of law is not formal, but substantive. But this substantive conception of the rule of law cannot be easily contained within the framework of a democracy that is procedural and severely restricts the scope of politics.

O’Donnell’s reflections on the rule of law are important and stimulating. He is undoubtedly right in pointing out that the quality of democracy and its long-term sustainability cannot adequately be assessed without taking into account the operation of the legal system. Yet, his claim that new democracies can overcome the disintegrating consequences of socio-economic inequalities through the rule of law is unpersuasive. Indeed, although law is not merely politics by other means, law is not an intermediary level wholly external to the political regime. If the political regime restricts the scope of the political agenda – as is the case today in many new democracies in developing countries – socio-economic inequalities will persist.

They will not be significantly reduced merely through the exercise of rights through courts, since courts are not designed to perform this task. Moreover, any attempt seriously to seek redistribution policies through courts, apart from futile, would politicise the judiciary and distort the process of adjudication, as litigation would become the exercise of politics by another means. If, on the other hand, citizens seek the extension of rights through political channels they will expand the scope of politics and will require the political regime to abandon its claim to neutrality and take the side of those who are economically and marginally deprived. The route towards greater socio-economic equality is messy, contested and involves inescapable value choices. In any event, whether the extension of rights is pursued through the courts or through normal political channels, the political regime cannot be insulated from its consequences. Legal and political processes are so closely intertwined that neither can be properly understood without understanding the other.

Conclusion

As this article has shown, the obstacles for a fruitful dialogue between RLE practitioners and academics are formidable. Yet, these obstacles can be overcome provided that the parties concerned adjust their respective approaches. If RLE practitioners are serious about improving economic outcomes and enhancing human rights, they should take into account the political factors that have a bearing on their programmes. If lawyers want to make a contribution to the RLE, they will have to accept that, although law does not always deliver certainty and predictability, it does play a major role in shaping and changing political institutions. If political scientists extend their study of democracy from political regimes into the operation of legal systems, they will be in a position to offer valuable information and theoretical insights into the difficult process of legal and institutional reform.
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JULIO FAUNDEZ is the Dean of Warwick Law School, Warwick University. This article has been taken after permission from the author from SSRN.