Where the Rule of Law is Opposed
Written by: Nick Cheesman
I like the idea of the rule of law. I think it matters. It signifies our common desire for things to be decided fairly. It signals to officeholders and the powerful that they are not entitled to act with caprice. It represents values that encourage people to struggle against inequity.
Because of the many good things associated with the rule of law, by some accounts today it is the world’s preeminent legitimating political ideal. People in leadership roles just about everywhere claim to aspire to it. Respect for the rule of law is a sign of political maturity. It’s an idea for grown ups.
The rule of law where realized in practice is a marker of success and prosperity. Countries with it are held up as models for others to emulate. So policymakers and practitioners, as well as mere scholars like me, go looking for evidence of it near and far. They devise criteria for identifying and measuring it. They draw up lists of haves and have-nots.
The rule of law where realized in practice is a marker of success and prosperity
In a sense, that’s how I started the research that culminated in my book, Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order. I wanted to see what I could learn about the rule of law by studying a place where it is lacking. To this end, I chose Myanmar, also known as Burma, a country with an unhappy history of brutal and arbitrary rule by soldiers. I characterized it, reading some Latin American authors, as a case of the un-rule of law.
Only as I began my work in earnest did I realise that I had misapprehended what I had proposed to study. The story I had hoped to tell wasn’t a story of lack or absence at all. Myanmar’s institutions were not operating on a deficit. They were full of animating ideas, and effective practices; just not the ideas and practices of the rule of law. Something else was going on.
So I reexamined everything I had been accumulating with which to explain how the rule of law had been lost in Myanmar: photocopies of criminal case records, books on law and politics in the Burmese idiom, government reports and publications, typewritten notes from interviews, and the contents of handwritten journals. I asked more questions: to my interlocutors, and to myself.
I concluded that what animates institutions in Myanmar that we would ordinarily associate with the rule of law, and specifically, its courts, is the idea of law and order. Looked at from a law-and-order perspective, practices that had been inchoate when examined through a rule-of-law lens came into focus. But the shift in perspective from the rule of law to law and order was not just one of degree. It was one of kind, and specifically, an opposing kind.
Law and order as an animating idea for state practice in Myanmar is asymmetrically opposed to the rule of law. It is asymmetrical because it is not a negative of the rule of law. It has its own distinctive contents. It is oppositional because whereas the rule of law relies on general rules to guide conduct and maintain order through judicial arrangements, law and order rests on particularistic directives delivered by administrators who intervene directly in people’s lives.
Rightly, the term used in Burmese to designate law and order does not refer to “law” at all. Rather, it treats law and order as lexically distinct from law, even though successive military dictatorships in Myanmar have sought to conflate them semantically.
In this respect, the government in Myanmar is not much different from counterparts elsewhere in the world who claim that law and order and the rule of law go hand in hand, and vigorously pursue the one on the pretext that their goal is the other.
However, I do not think that the rule of law can be reconciled with law and order. Not only do the two relate to law in profoundly different ways; they also differ fundamentally on the question of how to establish order.
Law and order entails the exogenous imposition of order. As a matter of principle, it insists on a relationship of political domination: somebody must impose order on somebody else. Under the rule of law, by contrast, order is an endogenous feature of political relations. It emerges out of those relations. It is not imposed.
Therefore, whereas it makes sense for undemocratic governments like successive military juntas in Myanmar to subscribe to the idea of law and order, and pursue projects to realize it, for democracies to do so is foolhardy, and potentially dangerous. Far better instead to aspire to the rule of law.