Can the rule of law be measured? New paper by Jerg Gutmann and Stefan Voigt

by Dr. Alkmini Fotiadou, Centre For European Constitutional Law.

 

There is an almost universal consensus that the rule of law is desirable. Given this enthusiasm, it is remarkable how little is known about the factors conducive to it. A precondition for improving our knowledge of the rule of law is the ability to measure it. In a paper recently posted on the internet, Jerg Gutmann and Stefan Voigt from the University of Hamburg, set out to do just that. Based on very extensive data from a survey carried out in 99 countries, they propose a new indicator for the rule of law. It is the first such indicator that explicitly takes the quality of legal norms into account. If the rule of law means that legislation is general and applies to all individuals in a like fashion, taking the characteristics of the law explicitly into account seems crucial.

Gutmann and Voigt use the new indicator to ask two questions: They first ask if there is a systematic relationship between the rule of law on the one hand and the political system on the other hand. They find that, on average, presidential democracies perform significantly worse in terms of the rule of law than parliamentary ones. It turns out that many presidential systems are even outperformed by dictatorships.

Gutmann and Voigt then move on to ask whether it is possible to identify conditions that are favourable – or unfavourable – to the development of the rule of law. Their results show that both geographic factors and large-scale European settlements during colonization are crucial factors determining contemporaneous levels of the rule of law. So, in a sense, they find evidence that the rule of law really is a western concept.

Here is the abstract : “This paper does three things. First, based on a limited number of theoretically established dimensions, it proposes a new de facto indicator for the rule of law. It is the first such indicator to take the quality of legal norms explicitly into account. Second, using this indicator we shed new light on the relationship between the rule of law and the political system of a country. Presidential governments tend to score significantly lower on the rule of law indicator than parliamentary ones. Many presidential democracies are even outperformed by dictatorships. The observation that political systems hardly predetermine the rule of law level raises the question why the authority of law differs across societies in its capacity to constrain the behavior of public officials. Third, because of this question, we investigate the roots of the rule of law. As theory on this specific question is scarce and the rule of law is closely associated with income levels, we draw on a topical literature that deals with the fundamental causes of economic development. Our findings suggest that specific determinants of long-run development operate via the rule of law, whereas others are not related to the rule of law at all. Our empirical evidence does, however, support not only the “primacy of institutions” view, but also the important role that human capital, which European settlers brought to their colonies, played in historical economic development.”

 

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