The Politics of the Rule of Law

I. A TOPOGRAPHY OF THE TERRAIN OF CONTESTATIONS

The resonance of the rhetoric of the Rule of Law in Pakistan is not a unique or isolated phenomenon. The Rule of Law is increasingly being recognized as a universal value or a "global ideal." 8 There is a nearuniversal "agreement, traversing all fault lines, on one point, and one point alone: that the 'rule of law' is good for everyone." 9 And yet, the Rule of Law is simultaneously described as an "exceedingly elusive notion" 10 and "an essentially contested concept" 11 : it connotes so many 8 different things to different people that we may say that the disagreement about its meaning "extends to its core." 12 However, the situation is not hopeless as there is only a relatively short list of plausible conceptions. Brian Z. Tamanaha charts a typology of theories of Rule of Law in a survey of the literature and finds that the various competing conceptions of the Rule of Law can be divided into distinct "formal" and "substantive" versions. 13 There are three shades of each kind of theory forming a continuum or a "progression that runs from thinner to thicker accounts" or "moving from formulations with fewer requirements to more requirements" (see Table 1). 14

Rule-by-Law

Formal Legality

Democratic Legality The thinnest version of Rule of Law in the above graphic, characterized more aptly as "Rule by Law," is the bare notion of governance according to law. 16 While Tamanaha considers it to be "an empty tautology," 17 governance by law is the minimum necessary condition of the Rule of Law. Nonetheless, this minimalist sense of Rule of Law is meaningless when tyrannical or dictatorial regimes retain the power to declare what the law is and alter it at their convenience. The second, more robust, version of formal Rule of Law is that based upon the principles of "legality." 18 This conception of Rule of Law gained prominence with its elaboration by Lon Fuller as a kind of procedural natural law or "inner morality of law" that enumerated desired qualities in law. 19 Fuller even argued that a legal system would not really exist if, as in most of the time, these principles of legality were grossly violated. 20 Fuller's desiderata included generality, clarity, public promulgation, temporal stability, substantive consistency, absence of retroactive application, a substantial degree of adherence by officials and subjects, and the reasonable possibility of compliance by the subjects with the promulgated rules. 21 Joseph Raz added to an avowedly "incomplete" list the requirements of the independence of the judiciary, principles of natural justice, judicial review, access to justice, and limits on the discretion of crime preventing agencies. 22 Robert Summers appended further layers of essentials including the existence of rule-making bodies, independent tribunals and other redress mechanisms, civic education of citizens, an independent legal profession, and legal academia. 23 The forms and processes of modern Western legal systems and their underlying policies (or their "axiological core") 24 accordingly emerge as the existing ideal of formal legality. 25 This brand of formal, or rather procedural, legality has thus evolved into an articulation of faith in the structures and processes of modern Western legal systems as they have come to exist, of course with room for reforms at the margins. The third version of formal theory incorporates the prerequisite of democracy. It is democracy which imbues legal rules and processes with legitimacy in pluralistic polities where disagreement on fundamental values is pervasive. 27 This brand of formal Rule of Law then not only requires the conformity of governmental action to a valid law but also requires such law itself to be democratically legitimate. For Habermas, "legitimate" law in this "proceduralist paradigm" is the residual cement of society: "if all other mechanisms of social integration are exhausted, law yet provides some means for keeping together complex and centrifugal societies that otherwise would fall into pieces." 28 Sunstein advances the idea of "incompletely theorized agreements" to explicate how law functions in liberal societies to develop a core of agreement about the mechanisms, processes, and principles for the resolution of disputes amongst myriad and even fundamental disagreements about values. 29 The relationship between law and democracy is that of mutual reinforcement: law derives its legitimacy from democratic processes; democratic processes may in turn derive their legitimacy from widely accepted rules for structuring politics and for dispute resolution mechanisms, which law provides.

Individual Rights

Right of Dignity and/or Justice

Socioeconomic Rights

Substantive theories of Rule of Law incorporate the idea of rights or various "content specifications" to the elements of formal legality. 30 The thinnest substantive version is one that incorporates individual rights such as the rights to property, contract, privacy, autonomy, etc. into the concept of democratic legality. 31 The second substantive brand of Rule of Law adds civil and political rights, rendering this theory even thicker. 32 The thickest substantive version includes socio-economic or social welfare rights in addition to individual and political rights. 33 The three shades of substantive theory correspond to the three generations of fundamental or human rights. Such are the contours of the Rule of Law terrain. "While formal legality is the dominant understanding of rule of law among legal theorists," the thinnest substantive version "likely approximates the common sense of the rule of law within Western societies (assuming a common understanding exists)." 34 Tamanaha argues that the thickest version of Rule of Law theory, in contrast, is overburdened and "throws up severe difficulties" and, though tempting, "should not be indulged" for it would render the Rule of Law a "proxy battleground for disputes about broader social issues." 35 Thus, we are essentially left with a choice between two credible versions of formal legality and two reasonable theories of substantive Rule of Law (see Table 2). The above graphic clarifies at least the range of possibilities, and perhaps, we may begin to discern what the various debates are really about. Note, however, that the linear progression-from formal legality to inclusion of democracy to protection of individual rights to the incorporation of civil and political rights-thus appears to coincide with 31 the development of Western political-legal thought. However, the Rule of Law is not presented as a product exclusively of Western thinking, but rather as a universal ideal that is at the heart of the Law and Development movement the world over. The classification of formal and substantive theories raises some pertinent questions. Are there philosophical or pragmatic criteria on which these distinctions may meaningfully be drawn? What are the bases for recommending one kind of theory in preference to another? These questions may be better addressed by visualizing the relationship between the various theories of Rule of Law in a different way: in the form of concentric circles rather than along a linear spectrum (see Table 3). 37 37. See Peerenboom, supra note 11, at 5-6.

Formal Legality Democratic Legality

Individual and Political Rights

2016]

The Politics of the Rule of Law 459 Table 3: Graphic based on author's reconceptualization of the Rule of Law 38

The advantage of this formulation is arguably that it enables a better appreciation of the fact that the core of Rule of Law theory is provided by formal legality and that Rule of Law includes at least that. 39 The debate then is about what else it includes, if anything at all. Another advantage is that we can see what lies beyond the Rule of Law and what is definitely not part of any reasonable formulation of this political ideal: the realm of pure politics as well as of culture, tradition, religion, and other sources of norms for socio-political and economic regulation. 40 This helps us better understand the true nature of the choice between the various formal and substantive theories. The further one retreats inwards 38 from the thickest version bordering the realm beyond, the less politicallycontested the theory of Rule of Law appears to be.

It is in terms of a concern with the seepage of politics into law that the debate between formal and substantive versions of the Rule of Law may then be understood. The formalists fear that the incorporation of politically-contested notions such as the various kinds of rights may overburden the concept and hence render it devoid of any independent value. Paul Craig, for example, concludes that "the adoption of a fully substantive conception of the rule of law has the consequence of robbing the concept of any function which is independent of the theory of justice which imbues such an account of law." 41 A key passage by Raz is frequently quoted as the quintessential representation of this point of view:

If the rule of law is the rule of the good law then to explain its nature is to propound a complete social philosophy. But if so the term lacks any useful function. We have no need to be converted to the [R]ule of [L]aw just in order to discover that to believe in it is to believe that good should triumph. . . . It is also to be insisted that the [R]ule of [L]aw . . . . is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man. 42 It is not immediately clear, however, in what sense the substantive versions threaten to rob the Rule of Law of any independent function. What, after all, is the 'function' of Rule of Law, or rather of theorizing over its meanings? One argument, that Raz seems to espouse, is that the over-arching purpose of theorizing the meaning of the Rule of Law is to attain analytical clarity. In this 'philosophical' mode of theorizing, conceptual neatness is a worthy end as it may enable the articulation of diverse demands in multiple vocabularies-of Rule of Law, justice, rights, constitutionalism, etc.-so that all of the various justifications of these demands may be better investigated and distinctly evaluated. However, this philosophical approach presents a number of problems. The first is a methodological one. The Rule of Law is not just a theoretical construct but rather a real world or social phenomenon. 43 Different people attach different meanings and demands to the Rule of Law not just in theoretical discourses but also in contested political debates. 44 As such, it is questionable whether a theoretical account laying out the "essential" characteristics of the Rule of Law that does not fit with political practices and rhetorical usages has much value. Summers perceived this methodological difficulty inherent in philosophically conceptualizing the Rule of Law. In support of his insistence on conceptual clarity he argued that the Rule of Law would lose traction, mass appeal, and ability to obtain compliance from officials or allegiance from citizens if its meanings become contested or obscure:

A major explanation for the uncertain advance of the rule of law in the world and for relapses even where it has generally prevailed, is that the requisites of its implementation and the values it serves are not sufficiently well understood. The capacity of any ideal to be realized within a society depends on how far social attitudes are well focused in its support, and on whether its clientele within the society are duly organized behind it. 45 However, the assumption that ordinary citizens or the specific clientele (practitioners, judges, academics and students) will rally in support of Rule of Law only if it is conceptually neat is problematic. political movements have been built around ideas and aspirations that do not satisfy the exactitude of political and social theorists. 46 Thus, the hope that conceptual clarity will lead to popular backing for Rule of Law may be an empty justification for a theorist's obsession with tidiness rather than a valid sociological supposition. Another question must then arise: who is the audience of Rule of Law discourse? When theorists talk of the Rule of Law, who are they trying to convince? Is Rule of Law talk designed to rally public support (or focus "social attitudes" in Summer's terms) behind the precepts advocated by particular versions of legality? Or, is the Rule of Law's special "clientele" within society (the participants in the legal enterprise) the target audience? Allegiance to formal theory may reinforce the Rule of Law if a bulk of the lawyers, judges, academics, and others involved in the business of law converge on a settled narrow meaning of the concept. However, such clarity, and such loyalty, may not be an unquestionable good particularly if the popular understandings of the meaning of the Rule of Law diverge substantially from the clear, precise, and apolitical definitions that formal theorists advocate. We may legitimately entertain the fears that the society which tolerated the emergence of such hyperprofessionalized and insular discourses on the meanings of the Rule of Law "might be deplorably sheeplike" and the "sheep might end in the slaughter-house" 47 :

Those who make and can recognize enacted law may use that capacity and that specialist knowledge for their own benefit, and to the detriment of the rest, who find they know less and less about the detailed basis on which their society is organized. The specialization of normative authority may thus exacerbate whatever exploitation and hierarchy exist in a given society apart from its legalization. 48 If formal Rule of Law theory were to dominate the legal discourse, especially in university classrooms, we may end up with a situation where decades down the path powerful legal actors, especially judges and seasoned lawyers, are constantly being asked to enforce populist and more substantive understandings of the Rule of Law only to find themselves incapable of accommodating those demands. Law may then become a deeply conservative force in that society, exercising considerable normative and institutional drags on movements for social change, on account of its failure to take up new interests and expectations that it could logically and meaningfully incorporate. Perhaps this situation already exists in most jurisdictions.

B. Rule of Law versus Instrumentalism: Rule of Law as Means to Ends?

The hopes for constructing a conceptually neat and de-politicized account of formal legality are further complicated by concerns that politics is not only brought to the frontiers of formal theory by the substantive rights-bearing accounts, but permeates all the way to its very core. Such is the outcome of another historical debate over the value of the Rule of Law: whether formal legality has intrinsic value or is it merely means to (political, social and economic) ends? Tamanaha has highlighted a more recent form of this debate, the tension between "two core ideas": (1) "the classical rule of law ideal that there are independent legal limits on law itself" and (2) "legal instrumentalism, . . . that law (and hence the Rule of Law) is a means to an end or an instrument for the social good." 49 The thinner (formal) conceptions appear to be associated with the core liberal idea that the Rule of Law secures the liberty of individual citizens through the restraint of arbitrary governmental power. 50 The formalists disavow the instrumental usage of Rule of Law for broader socio-political and economic agendas and resist calls for these to be incorporated in the very notion of the Rule of Law for fear that it may overburden the concept, as discussed in the previous section. The thicker theories of Rule of Law appear, in contrast, to be concerned primarily with its utility for redistributions of political, social, and increasingly economic, power. From the perspective of substantive accounts, the Rule of Law is meaningful only because, and to the extent that, it helps secure such ends. The formalist argument for incontestable value inherent in formal legality was advanced most forcefully by Fuller who argued that formal legality invariably imposes such meaningful restrictions on oppressive regimes that, presumably, they would rather achieve their tyrannical goals through administrative rather than legal means. 52 For Fuller, the failure of the Nazi regime to even minimally adhere to the basic requirement of formal legality was prima facie evidence of the constraints inherent in formal legality. 53 There appears to be some internal disagreement amongst proponents of formal legality on this point. For Hart, however, the Rule of Law, defined as the fusion of the principles of legality and the principles of natural justice, 54 is nothing more than a set of "principles of good legal craftsmanship" or merely principles of the inner efficiency of law that lacks any inherent value or morality. 55 Likewise for Raz, formal legality is essentially a set of principles of the inner efficiency of law that lacks any inherent value or morality. The higher a legal system sits on a formal legality index, the more efficient that legal system is in achieving whatever aims are assigned to law in that polity. Formal legality is thus essentially a negative value: "conformity to it does not cause good except through 52. FULLER, supra note 18, at 41-44; see also Noel B. Reynolds, Grounding the Rule of Law, 2 RATIO JURIS 1, 12 (1989 avoiding evil and the evil which is avoided is evil which could only have been caused by the law itself." 56 As such, formal legality is compatible with many forms of injustice. 57 Therefore, the most that can be said for formal legality is that it is morally ambiguous or ambivalent. 58 Nonetheless, even formalists, such as Raz, contend that formal legality achieves the valuable social goal of ensuring a minimal level of liberty by constraining the exercise of governmental powers. Firstly, it is argued that formal legality speaks to the governors and places a demand that "government shall be ruled by the law and subject to it." 59 Secondly, formal legality speaks to the governed and promises that, regardless of the content of laws, they will have notice of governmental designs, and hence, a limited ability to plan their actions amounting to a certain degree of freedom. 60 However, it is recognized that it is a limited form of "personal freedom" that does not equate to "political freedom" as normally understood. 61 Formal legality may also enhance the autonomy of the subjects and "provides the foundation for the legal respect for human dignity." 62 These are all valuable liberal ends.

Nonetheless, an even stronger charge may be laid against the formal concept of the Rule of Law: that it is not merely a set of morally neutral principles of efficiency despite which law may be abused by the rulers, but instead that formal legality itself contains the potential for farreaching, systemic abuse and is particularly amenable to such misuse. After all, as Hart alluded, "general rules clearly framed and publicly promulgated are the most efficient form of social control[,]" 63 and so long as Rule of Law contains no conception of how law is to be used (which conceptions have been relegated to the status of 'external morality' by formal theory), the internal efficiency of law makes it particularly useful for authoritarian social control. This intuition is 56 validated by the reality of 'legal' repression around the world. For example, unlike the Nazi regime, which had little patience for oppression through law, colonial rule in India demonstrated the 'value' of law, for the rulers, in enacting more subtly coercive and disciplinary regimes. 64 It may be argued in defense of formal theories that the ideal of the Rule of Law "can only be given a contingent, as opposed to necessary, value." 65 Further, it is argued that "[the Rule of Law] is a necessary condition for justice or democracy[,]" but "this claim is simply not the same as claiming that compliance with the rule of law necessarily promotes justice or democracy." 66 It may also be argued that the ideal is a "partial" one and its inner morality is contingent on the external morality in whose support it is wielded. 67 One such overarching telos of formal legality is the restraint of arbitrary exercise of power. 68 Arguably, this is a rather uncontroversial basis for justifying the Rule of Law and curbing arbitrary power is an incontestable good. E. P. Thompson's oftquoted statement, which scandalized fellow Marxists and other leftist critics of formal legality, evidences the emerging consensus on this one point: that "the imposing of effective inhibitions upon power and the defen[s]e of the citizen from power's all-intrusive claims, seems . . . to be an unqualified human good." 69 Even if it is acknowledged, however, that formal legality is an unqualified human good if, and to the extent that, it imposes meaningful limitations on the exercise of arbitrary power, what is the basis for restricting the telos to such restraint of governmental power? More significantly, what is the basis for excluding other equally valid aims, such as, the protection of rights particularly if it is manifest that state power will not be meaningfully challenged or constrained until such time as civil and political rights are safeguarded, and opportunities for 64 democratic participation are made accessible and meaningful? It is difficult to find convincing philosophical arguments, which may defend formal theories from the demands of substantive conceptions of the Rule of Law that also seek to advance the core liberal aims of enhancing the autonomy of the citizen and safeguarding basic liberties from the state's intrusion. This is more so the case when certain beliefs in fundamental or human rights come to be so widely shared that we may refer to them as the 'public morality' of (at least a majority) of the republic. It is on these terms that we can explain the increasing salience of substantive theories of the Rule of Law in the Anglo-American Common Law tradition, such as those advanced by T.R.S. Allan and Ronald Dworkin. 70 For the latter, the Rule of Law is "the ideal of rule by an accurate public conception of individual rights." 71 Nonetheless, substantive theories of the Rule of Law suffer from the same critique which has been made of formal legality when they acquire universalist pretensions and claim to have descriptive and prescriptive potential far beyond the specific constitutional and political climes in which they are rooted. Such substantive theories, which rely on abstract and universalist conceptions of human rights, must also answer to the charge of arbitrarily confining the ends of the Rule of Law. Leaving aside general critiques of rights and their usage such as those made by communitarians and critical legal scholars 72 -an extensive subject in its own right-we may highlight one specific aspect: the privileging of individual and political rights over socio-economic rights. In an influential work from within the liberal tradition, Amartya Sen has made a compelling argument that human freedom depends as much on "social and economic arrangements (for example, facilities for education and health care) as well as political and civil rights." 73 Sen thus argues that five distinct kinds of rights-political freedoms, economic facilities, social opportunities, transparency guarantees, and protective securityare deeply interconnected and integral to both human freedom and economic development. 74 As such, substantive conceptions of the Rule of Law, which privilege some of these sets of rights (individual and political rights) over others (economic and social opportunities), are drawing lines in the sand as much as formal conceptions. Therefore, to the extent that both formal and substantive conceptions arbitrarily limit the ends which the Rule of Law may serve, they become arguments for maintaining status quo particularly in societies where law is relatively efficient. 75 C. The Impossibility of the Rule of Law?: Liberal Ideology and the Indeterminacy of Law

The critics of formal legality can generally be classified in two distinct camps. Those who espouse thicker theories of Rule of Law take the stance that Rule of Law has relevance and value as a politico-legal discourse because it incorporates rights, conceptions, and other political ends. The contest is over the meaning of Rule of Law. Another kind of challenge has come from the radical left, most notably Critical Legal Scholars in the U.S.A., who have accepted the formalist definition of Rule of Law but have then denounced it for there is, according to them, always an ideology and an agenda (of a liberal ilk) behind formal legality that remains unarticulated. As such, (formal) Rule of Law is seen as a mask for power and an attempt at legitimating the existing imbalances in society. 76 Roberto Unger, for example, argues that the problems inherent in formal Rule of Law can be traced to the liberal politics in which it is embedded. 77 The paradox of liberalism is that while it strengthens the demand for equality, the attendant skepticism of state authority simultaneously disables challenges to existing social inequalities. 78 Formal legality, characterized by "its commitment to generality and autonomy" and "defined by the interrelated notions of neutrality, uniformity, and predictability" exacerbates the paradox of liberalism by masking the power imbalances existing in society and by making the exercise of power appear impersonal. 79 It achieves this because of two faulty assumptions. First, it is assumed that the most significant power rests in the government. This results in an undue focus on the exercise of public power and limited attention to private orderings which "affect most directly and deeply the individual's situation. . . . These inequalities are neither undone nor effectively redressed by the commitment to formal equality before the law." 80 Rather, a commitment to formal legality becomes an argument against state interventions designed to redress these substantive inequalities.

The second foundational assumption of formal equality "is that power can be constrained by rules." 81 rules can make power impersonal and impartial-is just as shaky" as the first assumption that power resides primarily in the state and hence the state ought to be the focus of concerns with the unequal and tyrannical exercise of power. 82 For Unger and other critical scholars, formality is impossible as rules neither dictate outcomes independent of purposes and values nor do they significantly constrain the discretion inherent in legislative, administrative, and judicial functions. As such, the Critical Legal Studies movement embroiled the formal conception of Rule of Law in bigger battles over the value of liberalism as a political philosophy and the nature of law. With sustained assaults on atomistic liberalism and critiques of the inherent indeterminacy of law, the Rule of Law became politicized and contested to its formal core. 83 The sustained assault from the Left undermined the claim that law, especially public law adjudication, could be separated from politics and could be undertaken in a largely formal manner. More significantly, critical scholars opened up even private law to unprecedented scrutiny and sought to identify the deep politicization of law and adjudication. 84 The CLS critique of the indeterminacy of law undermined formal theory to the extent that the formalists claim that the Rule of Law is the rule of rules. 85 The critique is essentially based on four broad arguments. First, rules are framed in language and cannot fully determine outcomes since language itself is indeterminate. Second, rules cannot be given any concrete meanings in specific cases until and unless the purposes behind the rules are determined. Since the rules themselves often do not incorporate a definitive indication of the underlying purpose(s) or policy(ies), the process of interpreting and applying rules invariably involves discretion and policy choices. Third, the legal system often incorporates rules that may justify multiple outcomes at the same time with the result that "legal" justifications can often be found for different 82 and even conflicting positions. 86 Fourth, the legal system is not composed exclusively of rules but also of broader and vaguer standards and principles which do not, and cannot apply, in an either-or fashion. Standards and principles may, and often do, conflict with other standards and principles, or even with rules, with the result that adjudication demands a balancing of various competing considerations. The balancing of these competing principles, standards and rules involves considerations that are external to law.

Evaluating the CLS critique of formalism generally, and formal Rule of Law specifically, it has been argued that mainstream or centrist legal theory has withstood the assault with a degree of equanimity. 87 It has also been contended that the indeterminacy critique, though substantially valid, was overdone and that while indeterminacy does exist in the legal system, it is neither as endemic nor as radical as alleged. 88 In the vast majority of cases, the potential or actual litigants, their lawyers, and the judges can confidently assert what rule-dictated outcome will be reached. Most of these cases are never litigated, are settled at an early stage, or are resolved with relative ease at the lower judicial rungs. 89 Radical indeterminacy thus appears to be a characteristic of the hardest of hard cases that are litigated in the appellate courts, and which are miniscule in number relative to the sum total of the applications of legal rules. As such, it is deemed possible to reconstruct the Rule of Law after the deconstruction of the CLS in a manner which incorporates aspects of the CLS critique. 90 Such assessments are arguably based upon a misunderstanding of the radical indeterminacy critique to begin with. 91 The indeterminacy critique is often misunderstood as a caricature of appellate adjudication in which judges are represented as routinely making choices from amongst a range of possible outcomes that the inherent indeterminacy of myriad legal tools-rules, standards, factors, presumptions, guidelines, principles, etc.-fail to foreclose. The CLS standpoint was not, for the most part, that law is in fact radically indeterminate and that judges act politically in the sense that they decide individual cases based largely upon their political leanings or affiliations. Rather, the argument that can be traced as far back as the Realists has been that the law is logically indeterminate while being in fact quite determinate. 92 While legal rules, precedents and statutes may be given different interpretations, in reality they are often interpreted in consistent ways with the result that the law changes very slowly.

The observation that the legal system is highly stable is, of course, correct, but it is a mistake to believe that this is because the law is determinate. The stability of the law derives not from any feature of the law itself, but from the overwhelming uniformity of ideological background among those empowered to make legal decisions. 93 This includes not only the judges, but the elites of the legal profession taught at the top law schools. This strain of argument, common to CLS, critical feminism, critical race theory and postcolonial studies, is much more forceful for it asserts that the content of law is contingent upon the institutional mechanisms and practices that assign meanings to legal rules, but this is done in a structurally political manner rather than in a superficially political way. The reality is that the law in most Western democracies is much more determinate, but the consolidation of agreement on the core meanings of rules is achieved not through any inherent capacity of promulgated legal directives to constrain judicial choice, but instead through legal practices that allow change only incrementally and at the margins. 95 All legal directives, as processed through the legal system, thus exhibit a substantive or an ideological tilt towards certain policies and social goals at the expense of other equally, more, or less plausible and desirable values. All legal directives, as processed through the legal system, thus exhibit a substantive or an ideological tilt towards certain policies and social goals at the expense of other equally, more, or less plausible and desirable values. 96 The lack of indeterminacy, in reality then, only adds to the frustration of those who perceive the ideological tilt of laws being masked by claims that no meaningful choice was available at any stage of the legal process, beyond the overtly political process of legislation. Thus, the lasting legacy and value of the CLS critique, building on the earlier work of the Realists, is that it has made it increasingly difficult to maintain hard and fast distinctions between law and politics (qua ideology), between means and ends, and between the form and substance of law. 97

III. RECONCEPTUALIZING THE RULE OF LAW AND ITS POLITICS

As is evident in the CLS critique of formal legality, there are two political contexts in which the debates over the meaning and value of the Rule of Law have largely been waged: the role of the judges in the constitutional-political system and the structures and powers of the welfare state. Abstract theoretical argumentation over the Rule of Law often begins with unarticulated understandings of specific desired outcomes in these contexts and ends up circuitously and surreptitiously justifying them. De-contextualized theories of the Rule of Law thus become covert arguments for certain constitutional and political positions-concerning issues such as the role of the judiciary and the structures of the administrative state-that claim neutrality but are essentially prejudiced towards the very conclusions that are derived from such supposedly neutral accounts. 98 In addition to these state-centric contexts, there is arguably another significant context to Rule of Law contestations. It is the one which is most easily elided as the vast, complex, often deeply polarized, and thoroughly politicized context of the society within which various understandings of the Rule of Law take shape and which they are designed to sustain or reconfigure. While the social context is equally significant to the liberal-democratic understandings of the Rule of Law in Western jurisdictions, it becomes acutely critical when such conceptions of Rule of Law are universalized and projected to the vastly different social environments in the Global South.

The following section of the Paper will attempt to reconstruct the diverse debates on the meanings and value of the Rule of Law as extensions of particular commitments over governance structures and across social planes. It is hoped that the resulting concretization of the various conceptions of the Rule of Law will enable a deeper understanding of its nature and potential value.

A. Rule of Law and Democracy: The Rule of Common Law or the Rule of Legislation?

It is rather easy to see how Rule of Law contestations, particularly the formal versus substantive debates, are shaped by underlying constitutional struggles with regard to the role of the judges. Proceduralist theory frequently betrays a concern with judicial powers 98. See, e.g., Richard H. Fallon, Jr., "The Rule of Law" as a Concept in Constitutional Discourse, 97 COLUM. L. REV. 1, 3-4 (1997). and seeks to counter expansive judicial review by adopting a legislative paradigm of legality demanding a greater focus on rule-following. 99 This usually implicates a certain brand of democratic theory (democratic legal positivism), which sees the ascendancy of the legislature as the essence of democracy and finds rights-based judicial review to be troubling to the extent it undermines majoritarian decision-making. 100 Formal legality thus becomes a prescription for restrained adjudication in accordance with rules laid down by the legislature and a demand that the judges cede the determination of value judgments to democratic institutions. Judiciaries are, after all, notoriously undemocratic, if not necessarily anti-democratic. Entrusting them with decisions on socio-political values and economic policies risks the creation of a situation wherein power is exercised in the absence of requisite competence and/or democratic control. 101 In this mode of analysis, Rule of Law is the rule of rules, and formal Rule of Law theory equates with "rulism." 102 But is rulism or formalism of this kind even possible? Have we not come to accept that a certain degree of indeterminacy inheres in rules and, as a result, in adjudication? As Schauer illuminatingly explains, a certain kind of formalism qua rulism is plausible. 103 He distinguishes between two kinds of formalism. 104 The negative kind involves the denial of choice by the judges, for example, in cases such as Lochner v. New York where they claim that they are merely applying established neutral principles. 105 Such decisions justifiably earn formalism a bad name. In contrast, a positive kind of formalism is possible, which involves the denial of choice to the judges. 106 more often than not indeterminacy exists only at the margins, or the penumbra of meanings of rules. 107 Therefore, it is possible for a judge to stay within the core meanings of applicable rules and leave the explication of the penumbra to other, more democratic, decision-makers. Even if rulism of the kind that he describes is possible, there is yet the normative question of its desirability. For Schauer, formalism qua rulism has the advantages of stability and predictability. 108 Furthermore, it restrains the arbitrary exercise of power (by the judges), which is good "for those who have jurisdiction to improve on yesterday also have jurisdiction to make things worse." 109 Two questions, and fairly big ones, remain however. First, if rulism and restraint of judicial decision-making exist in a social terrain of inequality then is it desirable to advocate stability and conservatism of the kind that he demands? What if a segment of the people demand a kind of Rule of Law that expects judges to make things more equitable than they historically were? As even Schauer concedes, these questions have precedence. Formalism has value only "when it is thought desirable to narrow the decisional opportunities and the decisional range of a [particular] class of decisionmakers. . . . Judgments about when to employ formalism are contextual and not inexorable, political and not logical, psychological and economic rather than conceptual." 110 Second, do legal systems of the kind that he describes exist in fact? Note that a formalist legal system has to be a "closed" one in which the judges have neither the discretion to refuse to apply a clear rule on the basis that it would not serve the rule's purpose nor the capacity to modify the existing rule or create a new one. 111 Such a description fails in the face of the lived reality of Common Law systems the world over wherein, to varying degrees, judges do appear to have the power to adopt a purposive approach towards the application of rules as well as the 107 capacity to modify the rules in the process of their instantiation. 112 There are strong arguments to be made for the proposition, which may only be empirically verified, that many ordinary people living in societies with Common Law legal systems consider the exercise of such purposive and context-oriented decisional jurisdiction to be the legitimate function of the courts. Common Law adjudication and rule-making have considerable democratic legitimacy then in the sense that the modes of reasoning employed in Common Law and its institutional practices are backed by widespread acceptance. Common Law adjudication can also be democracy-fostering in another way: by investigating the underlying policy rationales and purposes of legislative and executive action the courts can force the rulers to make their premises and goals explicit. 113 It is largely on the foundations of the perceived legitimacy of the Common Law, particularly where the courts have gained enhanced capacity to engage in rights-based decision-making, that substantive Rule of Law theory has built its edifice.

The arguments supporting the proto-democratic legitimacy of Common Law adjudication may, however, be pushed to the point where they begin to sound like claims of the necessary and inherent value of Common Law methodology, and even of its superiority vis a vis democratic institutions. 114 Such arguments are frequently rooted in a distrust of the democratic processes and betray a concern with elite or interest-group capture of lawmaking institutions. 115 In such a political calculus the courts appear as the only institution capable of countering the excesses of the political executive and the legislature. This, however, raises the spectre of a counter-majoritarian difficulty, and in Western liberal democracies the justification for judicial review processes which over-ride legislation or policymaking by elected executives must be 112 It must also be stressed that not only the Rule of Law but democracy too is a contingent concept; a means to ends rather than an absolute end in itself. 118 Further, democracy is a relative concept and an ideal: at any given time in a society there may be more or less of it; some institutions may be more democratic and others less; and some institutions may be more responsive to certain segments of the population and certain kinds of demands while others may be attuned to audiences and demands of a different kind. 119 It is, therefore, problematic to issue categorical pronouncements of the kind that equate democracy exclusively with majoritarianism and the ascendancy of the representative institutions. 120 It may even be legitimate to see democracy as a vision of communicative discourse in which not only the legislatures but also the courts, the bureaucracy, the political parties, the civil society, the media, interest groups and various social organizations are participants. 121 It is in this light that we must see the relative success in recent times of substantive Rule of Law theory, which relies upon the veneration of the Common Law. The advances in Common Law jurisprudence concerning the judicial review of legislative and executive action have been largely welcomed in political environments where politicians and politics have come to be mistrusted as being susceptible to special interests, and/or where the administrative state has been perceived to be the new Leviathan unaccountable to the electorate and their representatives. Another political context which has shaped the debates over the Rule of Law is that of the modern administrative state and the challenges it poses for the democratic legitimacy of the state and its law. The growth of much of Rule of Law theory appears to have occurred in the shadow of the welfare state-in opposition to it (e.g., Hayek and, arguably, Dicey) or in justification or demand for it (e.g., Unger and the CLS). 123 theory of the Rule of Law is thus, in vital measure, a theory of the role of law in a particular administrative state. 124 However, despite such historic relevance, the bulk of Rule of Law theory has lost its grounding in an accurate conceptualization of the challenges of the administrativeregulatory state and is impoverished on that account. For Hayek, the primary virtue of formal legality was that it rendered government by decree untenable. The value of governance through clear, general, publicly promulgated, and stable rules was that it constrained discretionary exercise of powers. 125 The decision-makers whose discretion Hayek thus sought to constrain through formal legality were not so much the appellate judges who have found themselves at the centre of most of recent contestations over the meanings of the Rule of Law but rather executive officials. 126 For Hayek, the looming welfare state that heralded a transformation in the bureaucracy was a disaster in the making. 127 The pedantry of the stereotypical bureaucrat was a virtue for him and the prospects of these same officials exercising vast discretionary powers in post-war administrative states in liberal Western democracies was a change for the worse. 128 The concern, however, was not limited to the exercise of these discretionary powers arbitrarily but also encompassed a broader libertarian anxiety with the expansion of governmental apparatuses that would unduly interfere with the historically vast domains of private autonomy. 129 For Unger and other critical scholars, the rise of the welfare-oriented state was an inevitable development. The welfare state would necessarily be one characterized by expanding state regulation of socio-economic spheres and the erosion of the traditional boundaries between public and private domains. For Unger, the emergent welfare state in "postliberal" societies demonstrated the inherent tension between formal equality and substantive justice as well as undermined procedural legality. 130 As governments in these societies have progressively intervened in areas previously left to private ordering, they have had to deal with entrenched inequalities resulting in a move away from formal equality towards substantive justice. 131 This shift has resulted in a "turn from formalistic to purposive or policy-oriented styles of legal reasoning," stripping "the state of every pretence to impartiality" and leaving a discredited conception of formal legality in its wake. 132 He predicted that legislation would become increasingly open-textured vesting significant discretion in administrative agencies and the courts so that such legislation could be implemented and interpreted with regard to the particularities of individual cases. 133 As a result, legal reasoning would become purposive rather than formalistic, and formal Rule of Law notions would become progressively irrelevant. 134 The welfare state came (in many places in the Global North). Generalist bureaucrats transformed into policy specialists and expert administrators. Rule-bound bureaucracies spawned specialized, independent agencies and public corporations with impressive arrays of rule-making, enforcement and adjudicatory powers. Overburdened legislatures increasingly lost the capacity to specify jurisdictional limits and meaningful guidelines in the governing statutes that might constrain the broad governmental powers entrusted to the new administrative agencies and corporations. The elected higher executive progressively lost the capacity to effectively supervise the operations of the traditional departments as well as agencies and corporations. In the context of this modern administrative state-due in part to the dramatic expansion of discretionary powers, commingling of function, deep pockets of democratic deficit, and lack of political accountability-the rhetorical pull of Rule of Law ideal has increased rather than having been 130 diminished. 135 Older ideological and philosophical contestations have to be reshaped in this evolving context. Liberalism itself has faced a split between its neo-classical libertarian strain and the more recent social liberalism camp. 136 Neo-classical liberalism has sought the remedy for the perceived excesses of the welfare state in a move towards the creation of the "regulatory state": "a shift in the style of governance away from the direct provision of public services, associated with the welfare state, and towards oversight of provision of public services by others." 137 The failures or weaknesses attributable to the "total control" models of the welfare state, which the regulatory state paradigm is designed to obviate, include "the limited capacity of central-state institutions to know what is best provided by state intervention . . . [and] the risk that state actors will be diverted from pursuit of public interest outcomes to the exercise of public power for the pursuit of narrower private interests." 138 The remedies built into the regulatory state model are the privatization of a vast array of operations and the creation of apex regulatory institutions mandated to regulate these privatized functions. 139 New regulatory methods are thus emerging which involve a reliance on regulatorstakeholder networks that develop flexible, negotiated, and cooperative arrangements to provide regulatory outcomes. 140 With a net decrease in governmental powers due to privatization, the place of the Rule of Law in this framework is necessarily limited to procedural legality and minimalist ultra vires review. Rule of Law thus becomes a demand for less judicial power that ties in neatly with the reduction in executive power at the heart of the regulatory state.

However, the regulatory state, the privatization and fragmentation of governmental functions, has in turn created new problems of accountability. 141 These problems are addressed through a reliance on market forces, consumer-citizen action, the construction of dense and complicated webs of accountability-inducing procedural mechanismssuch as quasi-legislative notice and hearing requirements for rulemaking, transparency, and disclosure obligations 142 -and institutions such as ombudsmen and specialized tribunals. 143 However, the spectre of special interest dominance and capture of regulatory processes by powerful private interests continuously haunts the regulatory state and its public-private partnership arrangements. "As important decisions are shifted to informal processes involving nongovernmental actors, how is the law to prevent factional abuse of power, curb the tyranny of expertise, and ensure public-regarding outcomes, including distributional equity?" 144 Unlike neo-classical liberalism, social liberalism has come to accept the welfare state and the need for some state interference in the private domain to counter deeply-entrenched inequalities. The problem for social liberalism then is how to reconcile "both the rule of law and a reconstructed, more emancipatory welfare state." 145 For social liberalism, the continued failures of accountability in the regulatory state demand the regulation of the regulators. Traditional judicial review of executive 'Y 195, 195 (1994). action, the policing of jurisdictional boundaries and legislative mandates, and the insistence upon fair decision-making procedures by the courts have emerged in recent decades as the central accountability mechanisms and as the "last resort" that gives bite to the entire network of formal and informal accountability networks. 146 For social liberalism ultra vires review and procedural legality have thus acquired a new relevance in the regulatory state. However, since the aspirations of social liberalism are not confined to the control of governmental power in order to ensure the maximum possible autonomy of private action, as in neo-classical liberalism, something more than formal legality and traditional judicial review is needed. Since the aspirations of social liberalism include some measure of substantive equality, then a conception of the Rule of Law rooted in such ideological terrain is in deep tension with the regulatory state. Such a conception demands that the state should interfere to some extent in the private ordering to counter embedded inequalities. This is the "[tragic] 'paradox of politics'" faced by social liberalism and its engagement with the Rule of Law. 147 While the fears of social liberalism are catered for by formal legality and traditional judicial review, its hopes and aspirations call out for a new kind of administrative law that not only constrains the arbitrary exercise of powers but also "ensures that regulatory agencies exercise their policymaking discretion in a manner that is reasoned and responsive to the wide range of social and economic interests affected by their decisions." 148 This kind of administrative law is much more intrusive and substantive as compared to the traditional ultra vires model of administrative law rooted in formal legality. Such administrative law is amenable to judicial review of executive action based on rights, on legitimate expectations, and maybe even occasional review of executive policy based upon the requirement of proportionality. Neo-classical liberalism may know where to draw the line but social liberalism certainly fails to make a coherent case for a meaningful distinction between formal and substantive Rule of Law, between administrative law In addition to the contexts of state structures, Rule of Law theorists are also becoming increasingly mindful of the social context, at least to the extent of acknowledging that an important prerequisite for the implantation of Rule of Law is that law possesses significant traction as a matter of social fact. 149 However, even such mindfulness of the relevance of the sociological dimensions has not opened up many to the bigger, more significant and much more interesting questions about the relation between (rule of) law and society. The most important issue is not whether a particular society is ripe for the implantation of the Rule of Law. That issue can never be meaningfully addressed unless we answer the prior and more significant questions: what conceptions of the Rule of Law has that society germinated? Why have some conceptions been more successful? Whether the dominant ideas about the Rule of Law are also the most legitimate? The problem with conceptualizing the Rule of Law apart from the political, economic, and cultural contexts is that it obscures these vital questions.

One of the great ironies, and a tragic one at that, of the universalization of the Rule of Law is that the dominant formal and substantive versions have come to dominate the discourse even in the Global South where the political, constitutional, economic, and social contexts are fundamentally different from those in the North where most of the speculation over the meaning and relevance of abstract-universal Rule of Law theory has historically been situated. In much of the Global South constitutionalism is weak and democracy is thin or procedural. 150 And yet, the usage of law to further coercive state power is pervasive. 151 While a core concern of formal Rule of Law theory, the prevention of arbitrary exercise of power, is especially relevant, formal legality is distinctly unable to perform a useful function in this respect. At the same time the bureaucratic-administrative state has failed to transform in many places in the Global South into a welfare state, 152 and some of the core concerns of critical scholars (that formal legality inhibits the development of a welfare-oriented state) is also simultaneously relevant. A powerful state is understandably feared for it is dominated by the elites, but it is at the same time acknowledged that only the state can command the sort of power and resources that are arguably necessary to resolve entrenched problems of social and economic inequality. The concern for democracy is not that of the tyranny of the majority but often that of the tyranny of the minority. Even judges have historically been part of the elites, 153 and where occasionally they have stood up to the state, the masses have looked on with simultaneous amazement and indifference at internecine conflicts (presumably of interest) amongst the entrenched classes.

If the dominant conceptions of formal and substantive (liberal rightsoriented) legality are rooted in the political and socio-economic contexts of Western democracies, are these suitable models for postcolonial states and transitional democracies of the Global South? Yet, these are the versions of the Rule of Law that the international development and donor agencies have purveyed as the elixir to the ills of under-development and have crammed down the throats of recalcitrant states. 154 The impetus to define the Rule of Law in relatively thin terms of formal legality or basic rights even in the radically different contexts of the Global South is evident, for these are the only versions that can be marketed in standardized packages. The inadequacy of the dominant conceptions is also particularly obvious here: the failure to counter the worst excesses, the refusal to challenge the status quo, and the silence on matters that are most relevant to those who need protection. There is another clear ideological tilt as well, as not only formal legality but property-oriented individual rights regimes inherently favor a certain brand of capitalism suitable to multinational corporations and significant players in the global trade. 155 In response, the critics of the elitist and liberal-capitalist economic agenda at the heart of global trade are increasingly standing their ground and re-appropriating the Rule of Law against these old and new forms of hegemony. Such reconceptualization of the Rule of Law is proceeding in three related dimensions. Firstly, participants of the Rule of Law enterprises are being asked to fully appreciate its "new discursivity" which "reveals that the rule of law . . . means different things to different peoples, in ways that render any general theory about it inchoate/impossible. Its histories differ not just across legal and social cultures but also within same-law regions. Its prescriptive bases also remain contested sites." 156 There are thus many conceptions of the Rule of Law, the role of law, and its institutions in any given society. Any decontextualized theory of the Rule of Law which obscures its contestedness in a society and refuses to acknowledge who it privileges, 154. See Tamanaha Without meaningful attempts to answer these and similar questions, Rule of Law theory is mere conceptual play that has little relevance even to the minimal concerns of the constraint of governmental powers and liberty subject to law. Worse still, plagiarizing universalist abstract answers to some of these questions from the North-such as the uncritical adoption of separation of powers-may become an obstacle to the quest for socio-economic justice that is increasingly at the heart of the Rule of Law in the Global South. 158 Thirdly, the reconceptualization of the Rule of Law is taking place in tandem with the reorientation of democracy. Wherever formal democracy exists in the Global South, it is riven with elite control of politics and hence deep democratic deficits. 159 In response, there are myriad localized forms of resistance often involving understandings and interpretations of the Rule of Law that diverge from its ideation by the elite-state complex. 160 The Rule of Law is valued as a mode of challenging socio-economic and political inequality and legal institutions are only relevant as "a terrain of struggle of the multitudes against the rule of the miniscule." 161 In such understandings, elected legislatures are not necessarily democratic and do not necessarily deserve the deference that dominant Rule of Law theory traditionally accords them. Occasionally it is a good thing, dependent always on specific outcomes, that courts refuse to acknowledge the supremacy of the legislatures in the name of rights protection.

In opposition to abstract theorization, a call is thus being made to envision the Rule of Law with the explicit ideological agenda of challenging deep-rooted inequalities in both the public and private domains, which includes positive obligations of the state to make law for the disadvantaged, deprived and the disempowered. 162 Given the anxieties generated by the old and de-contextualized accounts, nominally neutral but usually highly supportive of the status quo, reconstructed Rule of Law discourses in the Global South must be deeply contextualized and politicized. Rule of Law must be mindful of historical inequalities and simultaneously imbued with visions of more egalitarian futures. It must become the site of the most significant contestations over the structure of the legal system and of the value of law in redressing inequalities. To the extent that such situated and essentially contested accounts of the Rule of Law may lead to comparative insights, the South has much to learn from the South to the extent that contexts and the historical experiences with law are similar. In fact, the South has much to teach to the Global North as well. What the slow, glacier-like pace of legal change in the North masks-i.e., the inherent contingency of law, its institutions and processes-the fluidity and the contestability of legal transformation in the South lay bare.