Rule of Law in Latin America and the Caribbean
The “rule of law” is invoked frequently in discussions about governance. But what is it? The rule of law involves two main components. First, the rules must be applied impersonally. This means that they must be applied in the same way to every person—regardless of who they are. Second, the people who are in charge of applying and enforcing the rules are also subject to the same rules. If both of these two components are consistently present, then we can say that a society has a “strong” rule of law.
Collecting data on the rule of law to compute changes over time and make comparisons across countries is difficult, given the inherent challenges in measurement. While no measure is perfect, we can still learn from the data that is available. We use the Rule of Law Index (see below for more on the index)* developed by the Varieties of Democracy(V-Dem) project at the University of Gothenburg, to map how countries around the world have performed in the rule of law since 1950. The index ranges from 0 (a weak rule of law as represented on the map in red) to 1 (a strong rule of law as represented on the map in green). When looking at how countries in Latin America and the Caribbean have performed, we can see that all countries except for one (Venezuela) have improved in terms of the rule of law (moved from orange to light green). We can also see, however, that most LAC countries still have quite a long way to go in terms of achieving a strong rule of law. As illustrated on the map, countries in the LAC region lag significantly behind “rule-of-law” benchmark countries (index close to 1, such as those in western Europe). With the exceptions of Costa Rica, Jamaica, and Chile, the data suggest that across LAC the application of rules still depends very much on who you are and/or the rulers are not fully subject to the rules. This is reflected in the unfortunately common saying in Latin America: “To my friends, everything; to my enemies, the law.”
It is also important to the note that progress within countries has rarely been linear. The figure below shows individual country’s trajectories over time. As the dots move to the right and turn green, we see countries improving the rule of law. As the dots move to the left and turn red, we see countries worsening in the rule of law. Overall, we see progress to the right. However, it is important to observe that the progress has been incremental (the dots move slowly) and has been full of backslides and bumps along the way (while the dots move to the right overall, they frequently include slight shifts to the left).
Establishing the rule of law is not something that happens overnight but a constant struggle; it is not a given feature of societies nor is it ever finitely “achieved.” At it is core, we can think about the rule of law as norm. Like many other norms, it is the result of a cooperative agreement among the members of a given society and thus it may be difficult to sustain if members may have incentives to violate it. This is what makes it particularly difficult to sustain in contexts where some people have more bargaining power than others and more capacity to influence the political system.
What does it take to make progress toward the rule of law? This is a topic that we still have a lot to learn about. As Francis Fukuyama has observed (see also here), the vast literature on “transitions to democracy” is not matched by serious analysis of how countries “transition to the rule of law.” One way to think about this transition, however, is that in order to make progress in the right direction, we need to fundamentally strengthen the different “roles of law.” Building on Chapter 3 in the World Development Report 2017: Governance and the Law, we can think of three fundamental roles of law: the role of law in ordering power (it must establish credible limits to the exercise of power);the role of law as an effective tool for contestation (to challenge policies and decisions and to adapt rules to changing circumstances); and the role of law in ordering behavior (to reward socially desirable behaviors and deter socially undesirable behaviors).** If we understand clearly what kind of role the law must play and what are the instruments to strengthen those roles, we will be progressing in the direction of the rule of law.
In order to strengthen these roles of law and transition towards the rule of law, two practical elements are crucial: resources to make the roles of law credible and constraints on the individualistic, partial, application of rules. Examples of resources include tools such as enforcement technologies or inclusive processes that enable compliance whereas examples of constraints include instruments such as access to information, formal checks and balances, civil society audits, and effective electoral systems. Alina Mungiu-Pippidi has presented recently examples of successful transitions, which show that, under certain circumstances, the rule of law is actually achievable as a sustainable agreement among actors in society. Though, as Gordon Brown stated: “in establishing the rule of law, the first five centuries are always the hardest”.
* The Rule of Law Index, is a new index released in April 2018 that uses expert surveys and includes historical data dating back to 1789. According to V-Dem’s codebook, the Rule of Law index measures “to what extent laws are transparently, independently, predictably, impartially, and equally enforced, and to what extent the actions of government officials comply with the law.” The index is formed from fifteen sub-indicators which include compliance with high court, compliance with judiciary, high court independence, lower court independence, executive respects constitution, rigorous and impartial public administration, transparent laws with predictable enforcement, access to justice for men, access to justice for women, judicial accountability, judicial corruption decision, public sector corrupt exchanges, public sector theft, executive bribery and corrupt exchanges, and executive embezzlement and theft.
** A fourth role of law, from a less positivist, more normative perspective, is the expressive role of law: law as a way to reflect a system of beliefs about what are the values a society considers as the backbone of its collective identity.