1

VARIETIES OF RULE OF LAW

An introduction and provisional conclusion

Randall Peerenboom

In search of a conceptual framework for rule of law: the

many meanings, uses and abuses of rule of law
Rule of law is an essentially contested concept. It means different things to
different people, and has served a wide variety of political agendas, from
Hayekian libertarianism to Rawlsian social welfare liberalism to Lee Kuan
Yew’s soft authoritarianism to Jiang Zemin’s statist socialism. That is both its
strength and its weakness. That people of vastly different political persuasions
all want to take advantage of the rhetorical power of rule of law keeps it alive in
public discourse, but it also leads to the worry that it has become a meaningless
slogan devoid of any determinative content.
Given such wide usages, it is far from clear how to approach a comparative
discussion of rule of law. Analytically minded philosophers tend to want to
clarify the minimal content of rule of law by specifying the necessary conditions
that any legal system must possess to merit that honorific label. Social activists
and critics prefer a more normative approach. Rule of law becomes an
expeditious means toward a greater end—achieving their favored political
agenda. Positively, rule of law serves as an aspirational ideal, pointing the way
toward a more just world. Elided with justice, rule of law becomes an empty
vessel into which each person pours his or her hopes for a better tomorrow.
Negatively, rule of law is seen as an ideological mask of oppression, the legal
system a bastion of conservatism that serves the rich and powerful and thwarts
attempts at realizing a more just world by reifing the status quo. Wondering about
the evolution of rule of law and rule of law discourse, the more historically and
linguistically minded take yet another tack. They reflect on the connotations of
the various terms used to translate “rule of law,” the discourses that were
replaced or superseded by rule of law, and how the discourse has changed over
time. Others broaden the historical study to look at the factors that led to the
development of rule of law in the West or explain the success or failure in
transplanting rule of law from modern Western liberal democracies with mature
economies to foreign lands that may not be liberal, may not be democratic, and
may not have developed economies. Spurred by such worries, political theorists
2 RANDALL PEERENBOOM

and legal scholars debate endlessly the relationship between rule of law,
democracy, human rights and constitutionalism, Focusing their lens a little more
narrowly, neoinstitutionalists inquire into the institutions needed to implement
rule of law, whether that be an independent judiciary and legal profession, a
systems of checks and balances or a particular form of separation of powers.
No single approach will satisfy everyone. Each produces its own insights, and
has its own drawbacks. However, if we are to have meaningful discussions with
others with different backgrounds, it may help to begin with some definitions and
a provisional conceptual framework to clarify whether we are all talking about
the same thing, and, if not, how and why we differ. Fortunately, despite the many
debates over rule of law and its contested nature, there is a fairly well-accepted
conceptual or analytical framework that at least clarifies some of the terms and
disputes, though without resolving many important related but oftentimes
somewhat broader issues.

Thin and thick conceptions of rule of law

The fact that there is room for debate about the proper interpretation of rule of
law should not blind us to the broad consensus as to its core meaning and basic
elements. At its most basic, rule of law refers to a system in which law is able to
impose meaningful restraints on the state and individual members of the ruling
elite, as captured in the rhetorically powerful if overly simplistic notions of a
government of laws, the supremacy of the law and equality of all before the law.
In contrast, states that rely on law to govern but do not accept the basic
requirement that law bind the state and state actors are best described as a rule by
law or Rechtsstaat.1
Conceptions of rule of law can be divided into two general types, thin and
thick. A thin conception stresses the formal or instrumental aspects of rule of law
—those features that any legal system allegedly must possess to function
effectively as a system of laws, regardless of whether the legal system is part of a
democratic or non-democratic society, capitalist, liberal or theocratic.2 For
present purposes, the constitutive elements of a thin conception include, in
addition to meaningful restraints on state actors, the following. There must be
rules or norms for determining which entities (including courts) may make law,
and laws must be made by an entity in accordance with such rules and norms to
be valid. Laws must be made public and readily accessible. Law must be
generally applicable: that is, laws must not be aimed at a particular person and
must treat similarly situated people equally for the most part. Laws must be
relatively clear, consistent on the whole, relatively stable, and generally
prospective rather than retroactive. Laws must be enforced—the gap between the
law on books and law in practice should be relatively narrow—and fairly applied.
Moreover, laws must be reasonably acceptable to a majority of the populace or
people affected (or at least the key groups affected) by the laws.3
 VARIETIES OF RULE OF LAW 3

There is general agreement not only about these criteria, but that these criteria
cannot be perfectly realized, and may even in some cases be.in tension with each
other. While marginal deviations are acceptable, legal systems that fall far short
are likely to be dysfunctional. Of course, a thin theory requires more than just
these elements. A fully articulated thin theory would also specify the goals and
purposes of the system as well as its institutions, rules, practices and outcomes.
Typical candidates for the more limited normative purposes served by thin
theories of rule of law include:4

• ensuring stability, and preventing anarchy and Hobbesian war of all against
all;
• securing government in accordance with law by limiting arbitrariness on the
part of the government;
• enhancing predictability, which allows people to plan their affairs and hence
promotes both individual freedom and economic development;
• providing a fair mechanism for the resolution of disputes;
• bolstering the legitimacy of the government.

States may agree on these broad goals and yet interpret or weigh them differently,
leading to significant variations in their legal regimes. For instance, a greater
emphasis on stability rather than individual freedom may result in some states
limiting civil society, freedom of association and speech (see Chapters 4, 6 and
7). Moreover, in periods of rapid economic or social transformation, some of
these goals, such as predictability, may be sacrificed for other important social
values.
A variety of institutions and processes are also required. The promulgation of
law assumes a legislature and the government machinery necessary to make the
laws publicly available. Congruence of laws on the books and actual practice
assumes institutions for implementing and enforcing laws. While informal means
of enforcing laws may be possible in some contexts, modern societies must also
rely on formal means such as courts and administrative bodies. Furthermore, if
the law is to guide behavior and provide certainty and predictability, laws must
be applied and enforced in a reasonable way that does not defeat people’s
expectations. This implies normative and practical limits on the decision-makers
who interpret and apply the laws and principles of due process or natural justice
such as access to impartial tribunals, a chance to present evidence and rules of
evidence. One must also look beyond the traditional branches of government to
the legal profession, civil society, private actors who increasingly take on
government functions, and the military, which in many countries continues to be
a force capable of undermining the legal system and rule of law.
In contrast to thin versions of rule of law, thick or substantive conceptions
begin with the basic elements of a thin conception but then incorporate elements
of political morality such as particular economic arrangements (free-market
capitalism, central planning, “Asian developmental state” or other varieties of
4 RANDALL PEERENBOOM

capitalism), forms of government (democratic, socialist, soft authoritarian) or

conceptions of human rights (libertarian, classical liberal, social welfare liberal,
communitarian, “Asian values,” etc.).
Thus, a liberal democratic version of rule of law incorporates free-market
capitalism (subject to qualifications that would allow various degrees of
“legitimate” government regulation of the market), multiparty democracy in
which citizens may choose their representatives at all levels of government, and
a liberal interpretation of human rights that generally gives priority to civil and
political rights over economic, social, cultural, and collective or group rights.
Liberal democratic rule of law may be further subdivided along the main
political fault-lines in Europe and America: a libertarian version that emphasizes
liberty and property rights, a classical liberal position, a social welfare liberal
version, and so on.
Although rule of law has ancient roots and may be traced back to Aristotle, the
modern conception of rule of law is integrally related to the rise of liberal
democracy in the West. Indeed, for many, “the rule of law” means some form of
a liberal democratic version of rule of law. The tendency to equate rule of law
with liberal democratic rule of law has led some Asian commentators to portray
the attempts of Western governments and international organizations such as the
World Bank and the International Monetary Fund (IMF) to promote rule of law
in Asian countries as a form of economic, cultural, political and legal
hegemony.5 Critics claim that liberal democratic rule of law is excessively
individualist in its orientation and privileges individual autonomy and rights over
duties and obligations to others, the interests of society, and social solidarity and
harmony.6 This line of criticism taps into recent, often heavily politicized,
debates about “Asian values,” and whether democratic or authoritarian regimes are
more likely to ensure social stability and economic growth.7 It also taps into post-
colonial discourses and conflicts between developed and developing states, and
within developing states between the haves and have-nots over issues of
distributive justice. In several countries, arguably in all countries, it has resulted
in an attempt to inject local values into a legal system established by foreign
powers during colonial occupation or largely based on foreign transplants (see,
especially, Chapters 6, 7, 8 and 10).
It bears noting that many of the critiques of liberal democracy in Asia are
shared by Western critics as well. Such odd bedfellows as the critical left,
conservative right and communitarians all find common ground in maintaining
that liberals overstate the importance of autonomy and individual freedom at the
expense of a more holistic approach that fosters community and social solidarity.
Such diversity suggests that “the West” has been just as much a simplified
construct as “Asia”/“the East” in recent debates about Asian values and the
universalism of human rights.
Whatever the normative merits or limitations of liberalism, the liberal
democratic model is of limited use in understanding several of the legal systems
in Asia. China and Vietnam are effectively single-party socialist states. While
 VARIETIES OF RULE OF LAW 5

there are democratic elections in Singapore and Malaysia, both countries are
frequently characterized as non-liberal, soft-authoritarian regimes. Several other
countries are in the process of consolidating democracy But even many of the
democratic regimes show signs of being less liberal than their Western
counterparts. Some countries remain politically unstable and torn by ethnic
strife, resulting in various restrictions on individual liberties. Many are
confronting widespread poverty and the social ills that follow from it. Worried
about meeting the basic needs of sustenance, expansive social welfare programs
seem a distant pipedream.
In striking contrast to the many volumes on rule of law in the Western
literature, relatively little work has been done on clarifying alternative
conceptions of rule of law in other parts of the world, including Asia.8 What
emerges from the following country studies is a rich portrait of diverse
conceptions of rule of law both across the region and within individual countries,
from liberal views to authoritarian views, from top-down statist views to the
bottom-up perspectives of oppressed individuals seeking to harness the power of
rule of law to redress individual instances of injustice and the broad-ranging
systemic problems that empower a few at the expense of the many.

A point of clarification: the relationship between thin and

thick theories
While thin and thick versions of rule of law are analytically distinct, in the real
world there are no freestanding thin rule of law legal systems that exist
independently of a particular political, economic, social and cultural context. Put
differently, any legal system that meets the standards of a thin rule of law is
inevitably embedded in a particular institutional, cultural and values complex,
whether that be liberal democratic, statist socialist, soft authoritarian,
communitarian, some combination of them, or some other alternative. In
Singapore, for instance, the government sometimes seems to advocate a thin rule
law against the thicker normative conception of liberals. However, the
government’s conception of a thin rule of law is itself embedded in a particular
non-liberal thick conception as evidenced in its views on democracy, the
importance of stability and economic growth, and various rights issues.
Theoretically, one way of conceptualizing the relationship between a thin rule
of law, particular thick conceptions of rule of law, and the broader context is in
terms of concentric circles. The smallest circle consists of the core elements of a
thin rule of law, which is embedded within a thick rule of law conception or
framework. The thick conception is in turn part of a broader social and political
philosophy that addresses a range of issues beyond those relating to the legal
system and rule of law. This broader social and political philosophy would be
one aspect of a more comprehensive general philosophy or worldview that might
include metaphysics, religious beliefs, aesthetics, and so on.
6 RANDALL PEERENBOOM

The advantages and disadvantages of thin and thick theories

Thin and thick conceptions are analytical tools. It is not a question of one being
the right way to conceive rule of law and the other wrong. They have different
advantages and disadvantages, and serve different purposes. Thin conceptions
highlight certain features and purposes of a legal system. Even a more limited
thin rule of law has many important virtues. At minimum, it promises some
degree of predictability and some limitation on arbitrariness, and hence some
protection of individual rights and freedoms. While the notion of legality may
seem like all too thin a normative reed in cases where the laws themselves are
morally objectionable, even the harshest critics of rule of law acknowledge that
getting government actors to act in accordance with, and to abide by, the laws is
no small achievement. Certainly dissidents rotting away in jail after being denied
the right to a fair trial and other procedural protections appreciate the importance
of even a thin rule of law. Similarly, business people and the average citizen
alike appreciate a legal system in which laws do not change daily and are
regularly applied in a fair manner by competent administrators and judges free
from corruption. By narrowing the focus, a thin theory highlights the importance
of these virtues of rule of law.
Conversely, because thick theories are based on more comprehensive social
and political philosophies, rule of law loses its distinctiveness and gets
swallowed up in the larger normative merits or demerits of the particular social
and political philosophy. As Joseph Raz observes,

If rule of law is the rule of the good law then to explain its nature is to
propound a complete social philosophy. But if so the term lacks any useful
function. We have no need to be converted to the rule of law just in order
to believe that good should triumph. A non-democratic legal system, based
on the denial of human rights, of extensive poverty, on racial segregation,
sexual inequalities, and religious persecution may, in principle, conform to
the requirements of the rule of law better than any of the legal systems of
the more enlightened Western democracies.9

As a practical matter, much of the moral force behind rule of law and its
enduring importance as a political ideal today is predicated on the ability to use
rule of law as a benchmark to condemn or praise particular rules, decisions,
practices and legal systems. But all too often, rule of law is simply invoked to
criticize whatever law, practice or outcome does not coincide with one’s own
political beliefs. For example, in Singapore liberal critics of the government’s
conservative policies have invoked rule of law to object to the lack of “adequate”
workers’ rights legislation, limitations on the right of peaceful demonstration,
and a regulatory framework that restricts the freedom of the local press. Contrast
such complaints with the following. A law provides that contractors must have
five years of experience and meet various other requirements to obtain a license;
 VARIETIES OF RULE OF LAW 7

nevertheless, a government official denies a license to a contractor who meets all

of the requirements, and a court refuses to overturn the decision because local
courts are funded by the local government. Two government agencies issue
conflicting regulations, and there is no effective legal mechanism to sort out the
conflict. A suspect is entitled to legal counsel according to law, but in practice
the authorities refuse to allow him to contact his lawyer. Your dispute with your
insurance company regarding payment for hospital bills incurred as a result of a
car accident remains pending in court after seven years due to judicial
inefficiency The rich and powerful are regularly exempted from prosecution of
certain laws whereas others are prosecuted in similar circumstances.
Distinguishing between thin and thick theories makes it possible to use rule of
law more effectively as a benchmark for evaluating legal systems by clarifying
the nature of the problem. Several of the countries in Asia are still in the process
of establishing functional legal systems. Their legal systems are plagued by thin
rule of law issues such as weak legal institutions, incompetent and corrupt
administrative officials and judges, excessive delays, and limitations on access to
justice including high court costs and the lack of legal aid.10 These kinds of
problems are qualitatively different than more political issues such as how broad
free speech or freedom of association should be, or whether labor should have
the right to form unions and strike. Obviously, these latter issues are
tremendously important and deserve to be discussed. But whether the most
effective way to do so is by riding into battle hoisting the banner of rule of law is
debatable. When invoked by parties on both sides of an issue to support
diametrically opposed results, rule of law quickly becomes conceptually
overburdened and unstable.
A thin theory therefore facilitates focused and productive discussion of certain
legal issues among persons of different political persuasions. Being able to
narrow the scope of the discussion and avoid getting bogged down in larger
issues of political morality is particularly important in cross-cultural dialogue
between, for example, American liberals and Chinese socialists or Muslim
fundamentalists. Criticisms of a legal system in a country such as China and
Vietnam that point out the many ways in which the system falls short of a liberal
interpretation of rule of law are likely to fall on deaf ears and may indeed
produce a backlash that undermines support for rule of law, and thus, ironically,
impede reforms favored by liberals. Conversely, criticisms are more likely to be
taken seriously and result in actual change given a shared understanding of rule
of law. To the extent that there is common ground and agreement on at least
some features of a thin theory of rule of law, parties can set aside their political
differences and focus on concrete reforms. For instance, the U.S. and the
People’s Republic of China (PRC), notwithstanding the U.S.’s liberal democratic
conception of rule of law and the Chinese government’s statist socialist
conception, have been able to agree on a wide range of reforms to improve the
PRC legal system, including judicial exchange and training programs aimed at
improving the quality of PRC judges; programs to assist in the development of a
8 RANDALL PEERENBOOM

legal aid system; exchanges to strengthen the securities regulatory system and
the administrative law system; seminars on electronic commerce, corporate law,
and the enforcement of arbitral awards and court judgments; and even a
symposium to discuss the legal aspects of protecting human rights, including
issues such as China’s legal responsibilities under international rights
agreements, the rights of criminal defendants and the legal protection of religious
freedom.
As discussions of contentious criminal law issues show, relying on a thin rule
of law as a benchmark to assess a legal system does not allow one to completely
avoid all substantive issues of the type that must be addressed by advocates of a
thick theory of rule of law. It merely reduces the range of issues where such
substantive values will be relevant and hence the scope of possible conflict.
Although the features of a thin rule of law are common to all rule of law
systems, they will vary to some extent in the way they are interpreted and
implemented depending on substantive political views and values. For instance,
socialists and liberals may agree that one of the purposes of a thin rule of law is
to protect individual rights and interests but disagree about what those rights and
interests are. Or they may agree that rule of law requires that laws be made by an
entity with the authority to make laws but disagree as to whether members of
that entity must be democratically elected. Accordingly, legal systems that meet
the standards of a thin rule of law will still diverge to some extent with respect to
purposes, institutions, rules and outcomes due to the different contexts in which
they are embedded.
One of the dangers of eliding rule of law with an open-ended concept like
justice is that it tends to produce confusion, and eventually disillusionment. As
Vitit Muntarbhorn (Chapter 11) explains:

The Thai term for the rule of law is “Luck Nititham” implying a precept of
law based upon a sense of justice and virtue—not an easy notion to grasp
in a concrete sense. There is thus a kind of mythification of the term as a
linchpin of our society, when in reality it is steeped in popular
incomprehension rather than comprehension. This mythification dilutes the
impact of the notion of the rule of law, precisely because the distance
between people and the notion itself is often extreme—and that gap results
in what can be described as the rule of lore.

Simply put, there is little agreement over what justice is. As Upendra Baxi
(Chapter 10) reminds us:

the “good” that triumphs, as a “complete social philosophy,” may be, and
indeed has often been, defined in ways that perpetuate states of Radical
Evil. Complete social philosophies have justified, and remain capable of
justifying, varieties of violent social exclusion.
 VARIETIES OF RULE OF LAW 9

Given the fact of pluralism,11 thick conceptions of rule of law must confront the
issue of whose good, whose justice? Liberals, Socialists, Communitarians, Neo-
authoritarians, Soft Authoritarians, New Conservatives, Old Conservatives,
Buddhists, Daoists, Neo-Confucians and New Confucians all differ in their
visions of the good life and on what is considered just, and hence what rule of
law requires. By incorporating particular conceptions of the economy, political
order or human rights into rule of law, thick conceptions decrease the likelihood
that an overlapping consensus will emerge as to its meaning. Conversely,
limiting the concept of rule of law to the requirements of a thin theory makes it
possible to avoid getting mired in never-ending debates about the superiority of
the various political theories all contending for the throne of justice.
The more concrete, practical downside of conflating rule of law with justice is
that it gives rise to unrealistic expectations of rule of law. No legal system to date
has produced a perfectly just society, and none ever will. People should not
expect a legal system or rule of law to address all social ills. You may win a
lawsuit, but if the other party is insolvent, no legal system will be able to enforce
the judgment for you. Regardless of whether abortion is allowed or prohibited,
some people will find the outcome unbearable. When the legal system falls short
of one’s particular conception of what is just, it is then criticized, leading to a
backlash against rule of law as an empty concept or, worse yet, a mask of
oppression.
On the other hand, thick theories have their advantages as well. Articulating
different thick conceptions makes it possible to relate political and economic
problems to law, legal institutions and particular conceptions of legal systems.
By highlighting differences in viewpoints across a range of issues, thick theories
bring out more clearly what is really at stake in many disputes. Moreover, activists
and legal reformers in repressive regimes generally prefer thick theories because
they allow them to discuss certain controversial political issues. For instance, in
China, legal reformers have used a broad conception of rule of law as a means of
discussing democracy, separation of powers and human rights issues.
As a matter of legal sociology, it seems most people object to the normative
deficiencies of a thin rule of law, and are unwilling to describe states such as
Nazi Germany or apartheid South Africa as rule of law states.12 Whatever the
merits of this view, conceiving rule of law in thin terms will mean that rule of
law will give way to other important values in some instances, and many of the
most important public issues will be debated in terms other than rule of law.
Where laws are deeply unjust, citizens will engage in civil disobedience or seek
to overthrow the ruling regime. Similarly, if rule of law is narrowly conceived to
curtail all discretion, then rule of law and its virtues of predictability and
certainty will sometimes give way to considerations of equity and the desire for a
context-specific and just outcome.
In sum, the choice of thin or thick theories depends on one’s purpose.
Investors seeking a basis for assessing legal system risk may be better served by
a rule of law index that closely approximates the standards of a thin theory.
10 RANDALL PEERENBOOM

Similarly, governments wishing to promote legal reform in a country such as

China or Vietnam may find their offers to assist in implementing rule of law
more readily accepted if they are couched in terms of a thin rule of law rather
than as part of a larger package of political reforms that includes democracy and
an expansive liberal interpretation of civil and political rights. Conversely,
human rights non-governmental organizations (NGOs) might find that a broader
conception of rule of law suits their purposes better. Social activists and political
dissidents will no doubt want an expansive conception of rule of law that furthers
their political agenda.

The limits of this conceptual framework and rule of law

Law has its limits, and so does rule of law, conceptually, normatively and
practically. Rule of law assumes some degree of separation between law and
politics, even though the line is not always a bright one and varies according to
one’s thick conception. Revolutions and coups present a particularly difficult
challenge for rule of law. How are courts to respond to situations such as in the
Philippines, where Marcos’ amendment of the constitution was ratified by a show
of people’s assemblies, a procedure not in conformity with the constitution at the
time (Chapter 12)? Should they stand up for the rule of law principles of legality,
predictability and certainty in the face of political reality? What, then, when Cory
Aquino becomes president and replaces the Marcos-era constitution with her
Freedom Constitution, again without complying with the rules in place at the
time? By sticking up for rule of law, the court runs the risk of forcing a
constitutional crisis. In the first case, Marcos may very well have replaced the
judges, as happened in Malaysia in 1986 when the court dared to oppose
Mahathir. In the Aquino case, the court would have incurred the wrath of the
people, compromising its legitimacy and authority and undermining its efforts to
emerge as a political force in the new regime. In both cases, what the court did
do was simply bow to political reality. In South Korea, the court has also
struggled with the issue of how to handle leaders who come to power as a result
of a coup. The court recognized that as a practical matter generally it will not be
possible to prosecute those who took power after a successful coup while they
remain in office, yet insisted nonetheless on the legal possibility of prosecution.
To be sure, that these acts, especially by Marcos, could be challenged in court
suggests that rule of law is a powerful motivating ideal, one which even dictators
cannot dismiss without tarnishing their legitimacy.
For all of its rhetorical appeal, however, rule of law, whether thick or thin,
cannot provide much guidance with respect to certain issues. As will become
quickly apparent from the following chapters, the minimal requirements of rule
of law are compatible with considerable diversity in institutions, rules and
practices. For example, the way powers are distributed and balanced between the
executive, legislature and judiciary varies widely. Constitutional review is
conducted by a variety of entities that enjoy different powers. The nature and
 VARIETIES OF RULE OF LAW 11

degree of judicial independence, as well as the manner in which it is achieved,

also vary. In some cases judges are appointed (through a variety of mechanisms)
and in some cases they are elected. Nor will appeals to rule of law alone put an
end to debates about what type of theory of adjudication is best—strict
interpretation, purposive, the social activist approach of Indian courts or
Dworkin’s (liberal, equality-based) make-law-the-best-it-can-be approach.13
Indeed, appeals to rule of law alone will not even resolve many specific, thin rule
of law issues such as how clear rules must be or when retroactive rules are
acceptable.
Institutional choices are often highly path-dependent: the initial choice of
institutions and the way they operate and evolve over time is influenced to a
large extent by a host of contingent, context-specific factors. Seemingly similar
institutions, sometimes transplanted from one system to another, are likely to
function differently from place to place. Assessing the appropriateness and
effectiveness of institutions requires an evaluation of their results in the
particular context. For example, while China is not the only country in which the
local governments fund the local courts and judges are appointed by local
authorities, the combination has led to a severe problem with local
protectionism.
To take a more pervasive issue, most if not all states preclude some political
and administrative acts from judicial review. Such decisions include certain
decisions by police as to whom to arrest and by prosecutors regarding whom to
prosecute; decisions regarding national defense, war and covert operations; and
some highly technical issues left to administrative agencies. Rule of law
therefore cannot require that every decision be subject to judicial review or else
no country would merit the label of rule law. Nevertheless, rule of law does
require some limits on discretion and arguably the ability to challenge most
government decisions in some way, whether that be through internal
administrative mechanisms or the electoral process, whereby citizens can vote
governments that misuse their power out of office. But exactly what is required
is far from clear. Singapore, for instance, has a number of laws that allow for the
restriction of individual liberties without judicial review. The Maintenance of
Religious Harmony Act, observes Liann Thio (Chapter 6), “allows the minister
to issue pre-emptive ‘restraining orders’ to ‘gag’ politicians or religionists
thought to be mixing an incendiary cocktail of religion and extremist politics.”
The government argues that, given the sensitive nature of religion in multiethnic
Singapore, issues involving religious harmony are crucial for the survival of the
nation, and better left to the executive than to the judiciary or the legislature. The
executive’s decision is subject to review by the elected president, and advisory
councils composed of bureaucrats or religious and civic leaders are sometimes
consulted to further diminish the dangers of a concentration of unchecked
powers in the executive’s hands. Nevertheless, critics contend that such
justifications and mechanisms are inadequate, and call for a more robust judicial
review.
12 RANDALL PEERENBOOM

Cases involving the declaration of national emergency and derogation of

rights raise equally difficult issues. Although Asian governments have frequently
been criticized for invoking national security as an excuse to limit rights,
Western governments have also reacted to real or perceived threats in a heavy-
handed way, most recently in the wake of September 11.14 While the dangers of
abuse of powers are apparent, advocates of different thick conceptions are likely
to disagree about when national emergencies should be declared, who has the
right to declare them and what type of review, if any, there should be. In
Malaysia, the king, the titular head of the executive, acts on the advice of the
cabinet in deciding whether a state of emergency exists. Parliament, not the
judiciary, has the power to review the decision and overturn it. Appealing to rule
of law will not suffice to sort out these issues. Both sides can appeal to their own
particular thick conceptions, and a thin conception does not require all important
decisions to be left ultimately to the courts. In any event, concluding that a
practice or decision is consistent or inconsistent with a thin rule of law or a
particular thick conception of rule of law is not the end of normative debate. In
the end, we need to look at how a system or particular rule or practice works and
then evaluate it.
Given that rule of law cannot resolve many of these issues, wouldn’t it be
better simply to discuss particular issues without reference to rule of law? While
there is considerable merit in the suggestion that what matters most is not the
label but the substance of particular issues, abandoning reference to rule of law is
neither possible nor desirable. As a practical matter, people will continue to
invoke rule of law. Faced with that fact, it is better to try to bring some clarity to
the different uses of the term, by distinguishing between rule by law and rule of
law and between thin and thick conceptions of rule of law and different types of
thick conceptions, than to insist futilely that the term be avoided altogether.
In addition, rule of law provides a useful heuristic guide for legal reforms in
that the elements of a thin (or even thick) theory may be used to clarify and
prioritize areas in need of reform and to see the relationships between the various
elements. It provides some structure to what otherwise could be a chaotic,
piecemeal reform process. It also helps avoid misunderstandings and wasted
efforts in ensuring that reforms that might work in one system are not attempted
in legal systems whose purpose and political and legal infrastructure differ.
Moreover, even though relying on the concept of rule of law will not put an
end to debates in many cases, it does highlight important issues and may be
determinative in some cases. For instance, the Korean Bar Association, a number
of prominent law professors, and other “conservative” intellectuals have accused
President Kim Dae-jung of violating rule of law by using a general tax audit of
all the major news media companies as a cover for persecution of his political
opponents (Chapter 13). A thin rule of law is ideologically neutral in requiring
governments, whether democratically elected or authoritarian, to act according to
law and to treat similarly situated persons equally. Assuming it turns out that Kim
was using the law only or primarily against political opponents, critics will be
 VARIETIES OF RULE OF LAW 13

able to argue that his acts violate rule of law, a powerful objection in any setting,
but particularly in the case of a president in a newly democratic state who made
his name by opposing the abuse of law for political purposes by the prior
authoritarian regime.

The construction, de(con)struction and reconstruction of

rule of law and rule of law discourse
One of the striking conclusions of this comparative survey is that, while rule of
law is invoked everywhere nowadays, rule of law discourse is much more
vibrant and hotly contested in some countries than in others. Rule of law plays a
major role in political debates in China, Hong Kong, Singapore, Malaysia and even
Vietnam. In contrast, as Hahm Chaihark remarks (Chapter 13), “It is fair to say…
that, until very recently, the term rule of law remained largely irrelevant to most
Koreans. It was either a cover for legitimizing oppressive authoritarian regimes,
or the subject of naïve and sentimental musing on the part of law professors. The
utterance of the term generally evoked fear or suspicion.” Rule of law only
became a central part of pubic discourse after democratization. Meanwhile,
Thailand, after decades of semi-democracy followed by repeated coups, passed a
new constitution in 1997 that entrenches rule of law. Yet democracy and
human rights attract more attention than rule of law. Conflated with justice, rule
of law is poorly understood, and in the wake of the Asian financial crisis, there is
some hostility to rule of law as a hegemonic tool of the IMF.
While the diversity in legal systems and rule of law discourses belies easily
generalizations, several conclusions may be drawn. As one would expect, the
nature and subject matter of the debates vary widely. In Vietnam (and some
would say China), the main issue is whether the ruling regime is willing to
accept the basic requirement of rule of law that the state and state actors are
bound by law. The value of even a thin rule of law is seen most clearly in such
countries, where the fundamental principle of legality is still contested. Thin
conceptions of rule of law are most useful as a benchmark for states that are still
in the process of establishing a modern, functional legal system. In such
countries, much of the discussion is about which reforms are required to bring
the system into compliance with the requirements of a thin theory.
In more mature legal systems, the discussion is more likely to focus on thick
conceptions of rule of law or, in the absence of deep conflicts about thick
conceptions of rule of law, on particular issues often involving constitutional law,
judicial interpretation, human rights and the separation and balance of powers. In
countries where social, economic and political cleavages give rise to sharply
contested political positions and in turn competing thick conceptions of rule of
law, much of the attention is on articulating and comparing the different
conceptions, and arguing for the superiority of one over the other(s). Untethered
by the more limited conception of a thin rule of law, parties invoke rule of law in
the name of widely disparate political causes.