The World Bank and the Rule of Law Flashcards
Which political theorists first theorised the concept of a rule of law?
Aristotle, Locke and Montesquieu
What did Aristotle say about the rule of law?
proposed that law rather than any one of the citizens ruled, the ideal was a society governed by reason and not by passion
According to Locke, what 3 conditions guaranteed the protection of individuals’ property?
- Established law agreed by consent
- An independent judge with the power to decide controversies according to law
- A power to execute the sentence
What are Santos’ 4 contentions about the rule of law organised around?
the degree of autonomy of the legal order from other orders like morals or politics
degree of relative value against competing considerations
What distinction does the degree of autonomy of the legal order make?
Makes the distinction between an institutional and a substantive conception of the rule of law
What is the institutional conception of the rule of law?
judgement about the existence of a rule of a law would be based on whether the rules comply with certain requirements , internal to the legal order, that make the law efficacious
Doesn’t take into account content - no criteria to discern whether the law in question is good or bad
What does the substantive conception of the rule of law entail?
Takes the formal characteristics for granted but requires that rules enshrine particular values
Requires the existence of specific rights considered inherent to such a system
What conceptions are included within the criteria of a degree of relative value?
Instrumental and intrinsic conceptions of the rule of law
What is the instrumental conception of the rule of law?
rule of law is an effective mechanism to achieve whatever goals society has established for itself
It is an important means for the realisation of society’s ideals
What is the intrinsic conception of the rule of law?
considers the rule of a law a goal in its own right
The rule of law enshrines the greatest values that society can aspire to
What does Raz say about the institutional concept of the rule of law?
government action should be authorised by law
laws should be capable of guiding people’s conduct for them to plan their life
emphasis the characteristics of a formal legal system
According to Fuller, what are the characteristics of a formal legal system?
- generality
- notice or publicity
- prospectivity
- clarity
- non-contradictoriness
- conformability
- stability
- congruence
How did the term “governance” come about?
In a World Bank report detailing the crisis in Sub-Saharan Africa and calling for recommendations for a minimum institutional “governance” to create stable conditions and ensure the effectiveness of developmental assistance
What is the difference between government and governance?
Government is explicitly political
Governance deemphasises the political character and instead stresses on the “management” of administration and economic resources
What did Shihata argue was the relevance of the rule of law in development?
The relevance is that the effectiveness of reform policies would depend on a system capable of articulating them into workable rules and ensuring their compliance
