It is widely accepted that core rule of law ideals require that the legal consequences of various acts be predictable both in terms of statutes and their administration, and that these consequences pertain to agents of the state no less than other actors. Debates over the rule of law and development have generated little clarity over how to pursue these ideals, however. This article argues that it is crucial to recognize that the laws that govern a capitalist order not only forbid some acts and require others, but also authorize a multitude of individuals and organizations, both inside and outside the state, to create legally significant facts at their own discretion. Creditors, for instance, may accept repayment and cancel the existence of debt; similarly, owners can transfer ownership. The set of legally significant acts created at actors’ discretion, I argue, affects the practicality of rule of law ideals. When the law grants authority to some actors that allows them to affect legal rights of other actors in unpredictable ways, these ideals are not attainable. The common emphasis on institutions that implement and enforce laws obscures this vital role of authorized discretion, and weakens the effectiveness of efforts to promote the rule of law. Empirical cases from contemporary Russia illustrate these theses.
- rule of law,
- law and development
Available at: http://works.bepress.com/david_woodruff/1/