MICHAEL J. TREBILCOCK AND RONALD J. DANIELS,
RULE OF LAW REFORM AND DEVELOPMENT: CHARTING
THE FRAGILE PATH OF PROGRESS, CHELTENHAM,
EDWARD ELGAR, 2008.
David Kosař*
The “rule of law” has become a mantra of these days. Virtually every
political leader subscribes to this concept. Even Vladimir Putin, Chinese leadership
and authoritarian rulers do not object to the rule of law. However, a widespread
support of the rule of law comes with a price. This notion has become so elusive that
it verges on the meaningless. As one scholar quoted by Trebilcock and Daniels puts it:
“The rule of law means whatever one wants it to mean. It is an empty vessel that
everyone can fill up with their own vision.”1
Hence, Michael Trebilcock and Ronald Daniels face an uphill struggle if
they want to save this term from its promiscuous use. The widening gap between
“rule of law scholars”, who focus on principles and end goals of the rule of law, and
“rule of law practitioners”, who rather concentrate on institutions to be reformed, has
recently exacerbated the problem of defining the contours of the rule of law.2
Trebilcock and Daniels rightly emphasize this gap and, albeit they ultimately side
with “rule of law practitioners”, their book is particularly valuable for its effort to
provide a thorough theoretical underpinning of practitioners’ views on the rule of law.
The contribution of Trebilcock and Daniels to the rule of law reform scholarship is
also timely, as various international actors, despite multiplying their financial support
to rule of law reforms, are loosing their illusions about the benefits of such reforms.
Therefore, these institutions desperately need reappraisal of their current strategies
and suggestions on how to move forward.
The structure of the book under review is as follows. The first part3
(Chapter 1) discusses the notion of the rule of law in the context of development,
defines the authors’ own “procedural definition of the rule of law”4
and identifies
three impediments to rule of law reform. The second part (Chapters 2 to 9) applies the
abovementioned “procedural definition of the rule of law” to various institutions, i.e.
*
LL.M. (CEU), Ph.D. (Masaryk University), J.S.D. candidate at NYU School of Law, and Legal
Assistant of Judge of the Supreme Administrative Court of the Czech Republic (on leave). E-mail:
david.kosar@nyu.edu. I am grateful to Arie Rosen for discussions on earlier drafts of this review essay.
All opinions expressed in this review essay are strictly personal to the author and any mistake remains
his own.
1
Michael J. Trebilcock & Ronald J. Daniels, Rule of Law Reform and Development: Charting the
Fragile Path of Progress (Northampton: Edward Elgar, 2008) at 13 [Trebilcock & Daniels].
2
See Rachel Kleinfeld, “Competing Definitions of the Rule of Law” in Thomas Carothers, ed.,
Promoting the Rule of Law: In Search of Knowledge (Washington D.C.: Carnegie Endowment for
International Peace, 2006) 31.
3
I divide Trebilcock & Daniels into three parts for didactic purposes. This division is not present in the
original manuscript.
4
Trebilcock & Daniels, supra note 1 at 14.
250 23.2 (2010) Revue québécoise de droit international
the judiciary, police, prosecution, correctional institutions, tax administration, access
to justice, legal education and professional regulation. Each chapter in the second part
of the book follows the same pattern. The authors first set out normative benchmarks
for the institution in question, then collect reform experiences related to this
institution and, based on these experiences, they conclude each chapter with a short
discussion on the impediments to reform in the given institution. The third part
analyses the empirical evidence discussed in the second part of the book and suggests
several mechanisms for the international community “to help encourage the success
of the rule of law reform initiatives”5
in three stylized political formations scenarios.
The structure of this book review follows a different path. It will first focus
on the “procedural definition of the rule of law” advocated by Trebilcock and Daniels
and explore the problems inherent to such a definition. Subsequently, it will address
the authors’ methodology in the second part of the book. Finally, this review will
identify three general characteristics that permeate the whole book.
In the first part of their book, Trebilcock and Daniels discuss at length both
“thick” and “thin” conceptions of the rule of law and ultimately opt for a “thinner”
conception of the rule of law, which is “a nomenclature intended to demarcate [their]
model from both alternative extremes of ‘thick’ and ‘thin’”.6
According to them, “a
‘thinner’ model should see the rule of law as both a set of ideals and an institutional
framework”, and thus their model “comprise[s] elements of both […] ‘formal’ and
‘substantive’ theories of the rule of law”.7
Trebilcock and Daniels refer to their
“thinner” conception of the rule of law as to the “procedural definition of the rule of
law”. According to them, the “procedural definition of the rule of law” consists of
three clusters of values: (1) process values (transparency, predictability, enforceability
and stability8
); (2) institutional values (independence and accountability); and (3)
legitimacy values.
However, a deeper look at the principles of the rule of law covered by their
definition and at the application of these principles in the second part of their book in
particular reveals that Trebilcock and Daniels, in fact, do not advocate merely for a
procedural concept of the rule of law. From a theoretical point of view, the inclusion
of the principle of legitimacy among the rule of law principles seems to be the most
problematic. The authors’ definition of legitimacy values is very vague and it allows
them to incorporate various substantive values such as human rights within the
“procedural definition of the rule of law”. Several chapters in the second part of book
confirm this view. For instance, in chapter 5 dealing with correctional institutions the
authors refer to the following four facets of prison management: concern for
overcrowding, health and medical services, the treatment of prisoners by prison staff
and monitoring mechanisms.9
Such recourse to human rights standards is generally
5
Trebilcock & Daniels, supra note 1 at 341.
6
Ibid. at 23.
7
Ibid.
8
Surprisingly, the authors nowhere explain why they do not include values such as generality,
prospectivity, congruence, clarity, coherence and feasibility on their list of rule-of-law principles.
9
See also the discussion of Chapter 5 dealing with correctional institutions below.
Rule of Law Reform and Development: Charting the Fragile Path of Progress 251
considered a typical feature of substantive conceptions of the rule of law. This is not
in itself a deficiency. However, “going more substantive” has several side effects.
One of them is that Trebilcock and Daniels’ “procedural definition of the rule of law”
becomes to some10
extent subject to the same critique as any substantive conception
of the rule of law.
Another problem arises when Trebilcock and Daniels apply the rule of law
values that fall within the ambit of their definition to individual legal institutions. All
of the abovementioned values, that is both process values, institutional values and
legitimacy values, can be applied to legal institutions. However, in the second part of
the book, Trebilcock and Daniels scrutinize legal institutions only vis-à-vis
institutional (independence, accountability) and legitimacy values, and not vis-à-vis
formal rule of law principles (transparency, predictability, enforceability and
stability). This approach is neither explained nor justified by the authors.
Furthermore, due to this omission the authors avoid an inherent problem of all rule of
law reforms: that any rule of law reform involves a change of laws and legal
institutions and, therefore, any rule of law reform inevitably collides with at least one
of formal rule of law principle accepted by Trebilcock and Daniels, namely the
principle of stability.11
This collision is a recurrent theme in constitutional
adjudication in developing and transitional countries that shows that a careful balance
between the formal rule of law principles and more substantive principles such as
legitimacy or human rights lies in the heart of any rule of law reform. Adopting a
particular concept of the rule of law may even tip the balance in favour or against a
given institution.12
Hence, a reader wants authors to say more on this vexing issue.
As to individual principles of the rule of law advocated by Trebilcock and
Daniels, this review will focus on what they define as institutional values and
legitimacy values since their four process values are generally accepted rule of law
principles and a lot has been written on the latter. First of all, the authors’ emphasis
on the general nature of principle of independence instead of a typical overemphasis
on judicial independence is refreshing and laudable. In a similar vein, Trebilcock and
Daniels rightly apply the principle of accountability not only to governmental and
(quasi-)independent institutions, but also to the judiciary. In fact, their discussion of
judicial accountability in Chapter 2 is extremely useful for all judges in developing
10
One may claim that their definition encompasses formal values (transparency, predictability,
enforceability and stability), procedural values (independence and accountability), and substantive
values (legitimacy). Here, this review draws inspiration from categorization in Jeremy Waldron, “The
Rule of Law and the Importance of Procedure” in NOMOS-American Society of Political and Legal
Philosophy: Getting the Rule of Law (New York: New York University Press, 2011) at 54
(forthcoming).
11
In fact, rule of law reforms may be in tension with other formal rule of law principles (such as principle
of prospectivity or principle of coherence) as well.
12
For instance, the fate of lustration laws that arguably held collaborators with previous regime to
account in Central Europe depended on what conception of the rule of law was endorsed by a
particular constitutional court. See David Robertson, “A Problem of their Own, Solutions of their Own:
CEE Jurisdictions and the Problems of Lustration and Retroactivity” in Wojciech Sadurski, ed.,
Spreading Democracy and the Rule of Law? The Impact of EU Enlargement on the Rule of Law,
Democracy and Constitutionalism in Post-Communist Legal Orders (Dordrecht: Springer, 2006).
252 23.2 (2010) Revue québécoise de droit international
countries.13
The only drawback of their analysis of the concepts of independence and
accountability14
is the fact that they do not define the precise contours of these two
concepts. This is troubling in the case of accountability, since it has drawn less
attention in the rule of law context than its counterpart. The available literature15
on
the notion of accountability identifies three issues inherent to the definition of this
term, namely the ex ante vs. ex post nature of accountability mechanisms,
(non-)existence of sanctions, and a character of sanction. Put differently, any
definition of accountability must provide answers to three fundamental questions: (1)
is the term accountability reserved solely to ex post mechanisms?; (2) must
accountability mechanisms entail a power of the principal to impose sanctions?; and
(3) does accountability encompass only negative sanctions?
Trebilcock and Daniels do not address these three questions at all. This
solution gives them a significant leeway in the second part of the book where they
discuss accountability mechanisms for each legal institution, but such approach
undermines the conceptual clarity of their book. For instance, when one adopts a
definition of accountability that only encompasses ex post mechanisms entailing
sanctions, then various mechanisms discussed by Trebilcock and Daniels do not count
as accountability mechanisms. This is the case with mechanisms such as appointment
or transparency-inducing measures like the publication of court proceedings.
Conversely, if one opts for a broad definition of accountability, then it overlaps with
the other rule of law principles identified by the authors, such as the principle of
transparency.
Trebilcock and Daniels are even more succinct in discussing legitimacy
values. Similarly to their analysis of independence and accountability, they do not
specify in the first part of their book—which lays down the theoretical basis for their
project—what precisely they mean by legitimacy values. Instead, they explain them
by referring to notions such as “social legitimacy”,16
“public acceptance”17
or “public
confidence,”18
that do not move us much further. However, and perhaps more
importantly, Trebilcock and Daniels spend little time justifying why legitimacy should
be considered a principle of the rule of law. Not to be misunderstood, no one can
object to the view that legitimacy is critical for every legal institution and necessary
13
For perverse effects of too much emphasis on judicial independence, see Michal Bobek, “The Fortress
of Judicial Independence and the Mental Transitions of the Central European Judiciaries” (2008) 14:1
European Public Law 99.
14
See Trebilcock & Daniels, supra note 1 at 30-33.
15
See e.g. Mark Bovens, “Analysing and Assessing Accountability: Conceptual Framework” (2007) 13:4
Eur. L.J. 447; Richard Mulgan, Holding Power to Account: Accountability in Modern Democracies
(Gordonsville: Palgrave Macmillan, 2003); Andreas Schedler, “Conceptualizing Accountability” in
Andreas Schedler, Larry Diamond & Marc F. Plattner, eds., The Self-Restraining State: Power and
Accountability in New Democracies (Boulder: Lynne Rienner Publishers, 1999); or Stefan Voigt, “The
Economic Effects of Judicial Accountability: Cross-Country Evidence” (2008) 25 Eur. J. L. &
Econ. 95.
16
Trebilcock & Daniels, supra note 1 at 34.
17
Ibid. at 65.
18
Ibid. at 155.
Rule of Law Reform and Development: Charting the Fragile Path of Progress 253
for the success of any reform of legal institutions. But that does not mean that
legitimacy is also a principle of the rule of law. Such claim is a huge leap, and given
its novelty in the rule of law literature, Trebilcock and Daniels do not sufficiently
substantiate it. In fact, their position, as it stands right now, is susceptible to the
modified “Razian” critique of any substantive conception of the rule of law:19
they
mistake the rule of law simpliciter with “the rule of legitimate law” with the
consequence of “robbing the concept of rule of law of any function which is
independent of the theory of [legitimacy] which imbues such an account of law.”20
In the second part of the book, the authors collected extremely rich and
diverse experiences dealing with the reform of legal institutions in Latin America,
Africa, Central and Eastern Europe, and Asia. Trebilcock and Daniels do a
particularly good job here and it would be niggling to ask for more details in a book
covering so many legal institutions. Authors simply provide a very helpful checklist
of what should be factored in when preparing and implementing a reform of a given
legal institution.
But a reader is left wishing that more attention was paid to the consistent
application of rule of law principles identified by the authors to all institutions
examined in the second part of the book. As mentioned above, Trebilcock and Daniels
decided to apply only institutional and legitimacy values to the examined legal
institutions. However, these two sets of rule of law values are not addressed in full in
certain chapters. For instance, Trebilcock and Daniels do not discuss legitimacy
values in their chapters on police, correctional institutions and tax administration
without any explanation. The authors’ exposition of normative benchmarks applicable
to correctional institutions is particularly intriguing. In this chapter, Trebilcock and
Daniels downplay not only legitimacy values but also the principles of independence
and accountability. Instead, they redirect their focus on “achieving professional,
civilian systems of corrections geared towards retribution and rehabilitation, while
also maintaining basic protections for prison inmates”21
and discuss various facets of
prison management such as concern for overcrowding, health and medical services,
the treatment of prisoners by prison staff and monitoring mechanisms. How these
facets fit within the authors’ definition of the rule of law is not entirely clear. A reader
is thus left with the impression that the authors are incorporating human rights
standards into their definition of the rule of law which renders it more substantive.
The third part of the book suggests improvements to rule of law reform
strategies. This part deals primarily with issues related to the funding of rule of law
reforms by the international community and how to overcome obstacles to these
reforms. Since Trebilcock and Daniels identify political economy as “the most
important area of focus for the international community”,22
they devote most of this
part of the book to exploring techniques available to the international community to
19
See Joseph Raz, “The Rule of Law and Its Virtue” (1977) 93 Law Q. Rev. 195 at 195-196.
20
Paul Craig, “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework”
(1997) P.L. 467 at 487.
21
Trebilcock & Daniels, supra note 1 at 171.
22
Ibid. at 339.
254 23.2 (2010) Revue québécoise de droit international
minimize political economy-based impediments to rule of law reforms. Ultimately,
they propose specific rule of law reform strategies for three stylized political
formations. Whether their conclusions are right is an empirical question, which this
review has no ambition to answer.
Now this review moves to the general characteristics of the book that
permeate all of its three parts. These three general features should help readers to
locate Trebilcock and Daniels’ position within the rule of law scholarship. First,
Trebilcock and Daniels make clear that they have a normative project in mind. They
claim that “initiating a discussion of ‘rule of law reform’, as [they] have set out to do
in this book, implies the existence of a background of normative expectations” and
that they “are seeking a definition of the rule of law which coheres with the goals of
development, a normatively driven project par excellence”.23
For them, “[a] definition
of the rule of law for development can scarcely be indifferent towards the values
inherent in development”24
and their “definition [of the rule of law] focuses on what is
necessary […] to assure maximum compatibility with the most widely acceptable,
minimal goals of development”.25
From these quotes it is clear that the book perceives
development as an ultimate goal of the rule of law.
Second, Trebilcock and Daniels start from the proposition that “institutions,
including legal institutions, are an important determinant of economic development
(and probably other aspects of development)”26
and then, based on this proposition,
they adopt a procedural approach to the rule of law since it “stands a good chance of
yielding institutions that are both strong and worthy of popular legitimacy, and
conducive to the broader goals of development”.27
By adopting an “institutional
focus”, Trebilcock and Daniels clearly side with “rule of law practitioners”. They put
it bluntly: “institutional instantiations […], at the end of the day, is what is likely to
matter most to a country’s citizens”.28
Nevertheless, as mentioned above, Trebilcock
and Daniels are fully aware of a widening gap between “rule of law scholars” and
“rule of law practitioners”29
and their book thus can be interpreted as an attempt to
bridge the gap between these two groups.
Third, the book has a strong Anglo-American “common law flavour”. This is
evidenced by several examples. Trebilcock and Daniels cite almost exclusively
Anglo-American authors30
and neglect the rule of law scholarship of non-common
law authors. As a result, they do not address the significant differences between the
common law concept of the rule of law and competing concepts such as Rechtsstaat,
23
Ibid. at 24 (emphasis in original).
24
Ibid. (emphasis in original).
25
Ibid. at 25 (original emphasis deleted, my emphasis added).
26
Ibid. at 12.
27
Ibid. at 25.
28
Ibid. at 42.
29
See ibid. at 13 and 41-42.
30
By Anglo-American authors I mean not only authors born in common law countries but also authors
such as Friedrich von Hayek or Adam Przeworski who have worked and lectured in common law
countries.
Rule of Law Reform and Development: Charting the Fragile Path of Progress 255
l’État de droit, Estado de derecho and Stato di diritto.31
Also, Trebilcock and Daniels
build heavily on the “law and development” literature, but overlook that in other parts
of the world similar issues are debated under the heading of “transitional justice”.32
This emphasis on common law scholarship is not surprising, given the
authors’ affiliation with Canadian (Trebilcock) and U.S. (Daniels) universities. The
abovementioned omissions may also sound as pettiness since it is increasingly
difficult to cover the burgeoning literature on the rule of law and its non-common law
equivalents. However, the narrow approach adopted by Trebilcock and Daniels limits
the audience of the book to those who share a common legal paradigm of the rule of
law. For this very reason, their book would considerably benefit from discussing the
rich literature that exists on the various equivalents to the rule of law (Rechtsstaat,
l’État de droit, etc.) and on transitional justice. Not only is such discussion needed in
the rule of law scholarship, it is also critical to the success of rule of law reforms. In
other words, unless one knows how lawyers—and particularly legal thinkers—from a
given polity understand the rule of law and its place within their legal system, one can
hardly succeed in implementing rule of law reforms in such polity.33
In sum, Trebilcock and Daniels make a strong claim for the “procedural
definition of the rule of law” with a distinctive institutional focus. This review argues
that their model goes beyond the purely “procedural definition of the rule of law” and
seems to be “thicker” than authors are willing to acknowledge. Perhaps “institutional
model of the rule of law” would be a more suitable title in this case. The strengths of
their book are that it builds upon rich experiences of institution-building in
developing countries across the world, and that it narrows the gap between “rule of
law scholars” and “rule of law practitioners”. More is waiting to be said on the noncommon
law conceptions of the rule of law, the notion of accountability, and the
relationship between the rule of law and legitimacy. The book under review would
also benefit from adding a complete bibliography of its cited literature.34
Despite these
caveats, it is a welcome contribution to the rule of law scholarship that will attract a
wide readership.
31
See e.g. Rainer Grote, “Rule of law, Rechtsstaat and «État de droit»” in Christian Starck, ed.,
Constitutionalism, Universalism, and Democracy – A Comparative Analysis: The German
Contributions to the Fifth World Congress of the International Association of Constitutional Law
(Baden-Baden: Nomos Verlagsgesellschaft, 1999); or Luc Heuschling, État de droit, Rechtsstaat, Rule
of Law (Paris: Dalloz, 2002).
32
See e.g. Adam Czarnota, M. Krygier & W. Sadurski, eds., Rethinking the Rule of Law after
Communism (Budapest: Central European University Press, 2005); or Ruti G. Teitel, Transitional
Justice (Oxford: Oxford University Press, 2000).
33
To give Trebilcock and Daniels “their due”, it is correct to mention that they put strong emphasis on
local fine-tuning of rule of law reforms (see e.g. Trebilcock & Daniels, supra note 1 at 13 and 337-
339).
34
This step would also remedy minor flaws in cross-referencing. In particular, the authors’ use of
abbreviations “op. cit.” and “id.” in footnotes is sometimes confusing. For instance, at p. 41 they cite to
Rachel Kleinfeld but the text of the relevant footnote 122 (“Kleinfeld, op. cit.”) does not refer a reader
to the footnote with a full citation (footnote 28 at p. 13). Similarly, citations of Michael Neumann’s
book (The Rule of Law (Ashgate, 2002)) at pp. 22-23 are incorrectly attributed to William Whitford
due to improper use of “id.”.