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May 19, 2008

rule of law in an emirate

Here is a sophisticated and attractive website that explains the concept of "rule of law" to Qataris, especially high school students in Qatar's schools. The sponsors include the US Department of State and the American Bar Association's Division for Public Education, on whose advisory board I serve. (Thus I acknowledge complicity.) The site says that the rule of law is "good for you and good for Qatar!"

But what is rule of law? Specifically, can you have rule of law in a country governed by an Emir?

There are at least two conceptions of rule of law, which have been called "thin" and "thick." The thin conception is deliberately narrow. Friedrich Hayek defined it thus: "Stripped of all technicalities," he wrote, it "means that government in all its actions is bound by rules fixed and announced beforehand--rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge." No one would say that rule of law (on this definition) is a sufficient condition of justice. Rules can be "fixed and announced beforehand" and yet be evil. But Hayek argued that the rule of law was valuable in itself. Thus it might be worth while to promote it in a country like Qatar. To do so would be a public service to the Qatari people and not merely a favor to the regime.

The thin version of rule of law can accompany various forms of government. A democracy might bind itself to act only on the basis of fixed laws, but democratic majorities are often tempted to change their rules on the fly. Thus rule of law is consistent with democracy but hardly synonymous with it. Likewise, an emir or another monarch can, either by habit and preference or under a binding constitutional provision, act according to the thin conception of the rule of law. Many European monarchs used to be very rule-guided, even though they claimed divine right. The Pope acts according to rules within the domain of canon law.

In the passage quoted above, Hayek mentions only two components of a very thin theory: laws must be fixed and announced. One could add other ingredients to a thin theory, e.g., a prohibition on bills of attainder (laws that single out individuals for special treatment). That rule follows from the same Hayekian principle that governments should be predictable so that people can order their affairs accordingly. And so the thin theory grows thicker.

One can also include much more substantive components in the definition of "rule of law"--for instance, equal protection, an independent judiciary, right to a defense, or even freedom of speech and assembly. The more you build in, the less the concept seems compatible with a monarchy, especially if the monarch (as in Qatar) makes legal distinctions between his subjects and the other 80 percent of his resident population that holds foreign citizenship. If rule of law must include ingredients incompatible with monarchy, then it is not clear that we are helping Qatar by producing this website. But I write in the conditional, because I really cannot decide whether a thin concept of rule of law is valid and worthwhile.

May 19, 2008 12:10 PM | category: none



December 2, 2008 1:57 PM | Comments (1) | posted by braless wife

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