This paper summarizes the methodology of the Worldwide Governance Indicators (WGI) project, and related analytical issues. The WGI has covered over two hundred countries and territories, measuring six dimensions of governance starting in 1996: Voice and Accountability, Political Stability and Absence of Violence/Terrorism, Government Effectiveness, Regulatory Quality, Rule of Law, and Control of Corruption. The aggregate indicators are based on several hundred individual underlying variables, taken from a wide variety of existing data sources. The data reflect the views on governance of survey respondents and public, private, and NGO sector experts worldwide. We also explicitly report margins of error accompanying each country estimate. These reflect the inherent difficulties in measuring governance using any kind of data. We find that even after taking margins of error into account, the WGI permit meaningful cross-country and over-time comparisons. The aggregate indicators, together with the disaggregated underlying source data, are available at <www.govindicators.org>.

By conventional measures, Russia lacks the ‘rule of law’. For evidence, we need look no further than the notorious Yukos case, in which its president, Mikhail Khodorkovsky, was railroaded into a criminal conviction and his company was bankrupted, with the proceeds mysteriously ending up in the hands of Kremlin insiders. The Yukos case is only the most infamous example of so-called ‘telephone law,’ a practice by which outcomes of cases allegedly come from orders issued over the phone by those with political power rather than through the application of law. The media is replete with such accounts. The conclusion typically drawn by media commentators and social scientists alike is that the omnipresence of ‘telephone law’ makes any reliance on formal law or legal institutions in Russia fool hardy.

Generalizing from politicized cases with high stakes for everyone involved, including the state, is, however, problematic. Though the willingness of officials to mobilize ‘telephone law’ in such cases, either to further the interests of the state or for self-aggrandizement, clearly undermines the goal of equality before the law for all, whether it is reflective of practices in non-politicized cases is unclear. If it were, then we would expect to find a reluctance on the part of ordinary Russians to take their disputes to court. Yet the caseload data document just the opposite: the number of civil cases has more than doubled over the past decade. This gives rise to a puzzle: why are Russians willing to use a legal system that is so deeply and patently flawed? More importantly, what does it reveal about the prospects for the ‘rule of law’ in Russia?

After decades of disappointing progress in building the rule of law in societies that suffer from poorly functioning legal systems, the development community has turned its attention to legal pluralism. Legal pluralism is a prominent feature in many development contexts, with both negative and positive implications for the rule of law. The negative questions revolve around whether or to what extent the presence of multiple coexisting legal forms hampers or detracts from efforts to build the rule of law. The positive questions revolve around whether alternative legal forms in situations of legal pluralism might satisfy rule of law functions that failing state legal systems are unable to provide. This essay explores these questions.

Multidimensional measures (composite indicators, indices, ratings, league tables) can effectively underpin the development of data-driven narratives in support to policy. A controversy surrounds the use of these measures. We review some good and bad practices from the recent literature. We then discuss briefly a decalogue to develop a multidimensional measure. We argue in favor of a multi-modeling approach to represent different scenarios in the construction of an aggregate measure prior to drawing recommendations for policy making. Finally, we try to establish a link between the analytic use of well-designed aggregate measures and the development of a robust culture of evaluation of policies based on evidence. An application of these concepts and tools to the Rule of Law index developed by the World Justice Project is given.

The recent demand for new measures of the rule of law confronts several methodological challenges. This article calls for careful attention to fundamental social science ideas of conceptualization and measurement in approaching the rule of law. Efforts to measure complex social phenomena such as the rule of law are challenging, and thus require that researchers and policy makers pay attention to the cautionary rules of social science in their efforts. Violating these basic rules risks producing measures that are not reliable or valid, and could be a bad basis for policymaking. This paper demonstrates some of the pitfalls that rule of law researchers have fallen into and suggests improvements in measurement approaches.

The past ten years have seen an avalanche of literature on the rule of law, but little agreement on a definition of the concept – if it is defined at all. The present article offers a conceptual framework to deal with this situation. Departing from the two main functions the rule of law intends to serve – protecting citizens against the state and against one another – it dissects the various definitions in use into elements. These elements are discussed one by one and arranged in three categories: procedural elements, substantive elements and control mechanisms. The result may not only be helpful in structuring debates about the rule of law, but also in evaluating claims about the success or failure of ‘rule of law development’. Finally, the article contains suggestions on how to use this framework as a starting point for interdisciplinary research into the rule of law.

In this article I will first present the main thrust of Hernando de Soto's design, and then summarize praise and criticisms of his work. Next, I will address the question of to what extent De Soto's design is innovative. To this end I present a brief overview of past experience. I will then introduce some preliminary results of an international Leiden-based research project that has addressed the general causal relations between legalization, tenure security and poverty alleviation which constitute the basis of De Soto's argument. Most case studies of this project found that for De Soto's plans to be effective, a range of conditions had to be fulfilled. As long as these conditions are not fulfilled – which happens to be the unfortunate reality throughout the developing world – his plans will not work. Unfortunately, his proposals then are based on a whole set of unrealistic assumptions. Finally, in order to place De Soto's work in the context of today's development policies, with their emphasis on good governance and rule of law promotion, I will present a conceptual scheme which unpacks the key concepts of development, governance and the rule of law. In the concluding part I speculate on what we can learn from the success of De Soto's compelling theories, and from various criticisms of and responses to them How can these lessons be beneficial for a realistic rule of law promotion?

The central question of this paper is what kind of reforms are necessary to guarantee that Latin American police forces meet what Bayley calls ‘the democratic criteria’: 1) police are accountable to law, not to government; 2) police protect human rights, including those related to democratic participation; 3) there are constraints on the use of police force that are enforced by institutions external to the police force; 4) the police force's priority is the protection of citizens as individuals and private groups, not the state. The primary focus of this paper is to discuss the types of reforms that ensure that a police force is abiding by the most fundamental principles of the rule of law under a democratic regime. We recognize that in some cases the two problems are so entangled that it is not possible to discuss police reform without addressing effective ways to reduce crime. However, as we argue in the paper, this is not always the case. In many countries it seems possible to separate the two.

Legal Empowerment of the Poor (LEP), which has recently been launched as a new conceptual and operational tool for poverty eradication, has attracted considerable attention in the face of claims that poverty persists partly because the poor do not enjoy legal rights or the power to exercise those rights. This essay provides a brief overview of the conceptual foundations of the LEP approach as reflected primarily in the main report of the Commission of Legal Empowerment of the Poor (CLEP). It thereafter critically examines the LEP's potential of promoting pro-poor governance and strengthening the protection and promotion of basic socio-economic and political rights of the poor. It argues that it is not only crucial to strengthen the theoretical underpinnings of the concept by recognizing the links between legal and political empowerment, but to also closely link the LEP with the general development experience so far.

This year we celebrate 20 years since the transfer of power from communist regimes started in Poland's first (semi-free) election of 4th June 1989, which ushered in Europe's first post-communist, non-communist, government. It had snowball effects in other countries. With the exception of Romania the transfer of power was peaceful and based on agreements usually called ‘round table talks’.

There is no doubt that each of these countries has made substantial progress since 1989. But serious problems remain. The states do not function as expected by their citizens, basic institutions of administration of justice do not work as they should, the level of corruption is too high and politics, while passionate operates rather as a façade, with a great deal of real activity happening behind the scenes and elsewhere. Citizens do not believe in their impact on the political processes and plenty of them complain that the institutions of the administration of justice do not act properly.

Why is this? A substantial number of citizens and observers of the affairs of the region claim that remnants of the past, unsatisfactory dealing with legacies from the former regimes, are responsible for the contemporary state of affairs. It is not my aim to confirm or falsify such claims, but it is clear that the extremely complicated problem of the relations between legality, the rule of law, institution-building and dealing with the past in the process of transition from communism over these twenty years is important. In this article I will describe the most controversial legal strategies adopted in various countries to deal with the past, so-called ‘lustration’ and ‘decommunisation’. I will discuss relevant case-law of domestic courts as well as the European Court of Human Rights. I argue that lustration generally plays a positive role in laying down foundations for a cleaner public sphere and rule of law and democracy, and also that the debates which lustration have stimulated have played a very positive role in building rule of law cultures in the countries in question.

The purpose of this article is to look more deeply at why the principle of local ownership has so often been disregarded in justice reform and security sector reform (SSR). In doing so, it identifies various dilemmas that account for this lack of regard, including issues relating to local vs. international norms; donor vs. local interests and representational issues at the national and local level. Subsequently, it will examine how local ownership dilemmas impact on programming including during the assessment, implementation and monitoring and evaluation stages and then consider how local ownership can be strengthened particularly in fragile states.

The author examines how developments in international criminal law – including creation of the International Criminal Court and various hybrid tribunals – can have an impact on rule-of-law building efforts in post-conflict societies. Although trials of atrocity perpetrators primarily and appropriately focus on fairly trying the accused individuals, these processes also have a wider impact on public perceptions of justice and potentially can influence a society's ability to embrace rule of law norms. The quality of outreach and capacity-building accompanying these trials may well have a decisive effect on whether these proceedings, on balance, strengthen or undermine public confidence in justice and justice institutions in societies recovering from atrocities. This piece stresses the need to supplement international and hybrid criminal trials with more meaningful outreach to the affected populations, and with more systematic domestic capacity-building and empowerment aimed at both formal justice systems and civil society.

This paper reviews the World Bank's existing work in access to justice and suggests directions for further Bank engagement in this area. Access to justice efforts are grouped here into six categories: court reforms, legal aid, information dissemination and education, alternative dispute resolution, public sector accountability, and research. The paper is motivated in part by recent discussions of ‘legal empowerment’; a thread of inquiry that runs through the review is: how do World Bank efforts to increase access to justice affect the agency of poor people? The paper concludes with insights and recommendations that emerge from the Bank's experience.

Although law and order is often conflated with the rule of law, the two concepts are asymmetrically opposed. Asymmetrical opposites do not occupy poles on a scale of shared values. One is not a negative of the other, as rule of men traditionally has been to the rule of law. Nor does one occupy part of a continuum extending down from the other, like rule by law in relation to the rule-of-law ideal. They are not symmetrically related. They are opposed because their specific contents are adverse. Whereas the rule of law is characteristically concerned with eliminating arbitrariness through general rules applied juridically, law and order is primarily concerned with eliminating restlessness through particularistic injunctions delivered administratively. Different values inhere to each. Their opposition is in principle. Consequently, they cannot be conflated without obfuscating their distinctive qualities, thereby casting doubt on the meaning of the rule of law as a political ideal.

Micro-enterprise is important to surviving or escaping poverty in developing country cities. Micro-entrepreneurs, informal in terms of business and commercial law, are stigmatized, rendered liable to legal enforcement, their access to credit is limited, and the growth of their businesses is impeded. As intensive international efforts today address business informality among larger enterprises, the business-law informality of micro-enterprise has begun to attract scholarly and professional attention. Drawing on a desk study and field studies in Tanzania in 2007 and 2011, and focusing on street vendors, this paper investigates the potential of proposed Legal Empowerment reforms to overcome barriers and disincentives to micro-business formalisation. The proposed reforms could go a long way towards addressing these barriers but, echoing criticisms of the Commission for Legal Empowerment of the Poor, the reform process has only partially addressed the political obstacles to the acceptance of the reforms and the micro-entrepreneurs they are expected to legitimate.

Perhaps the most significant trend in justice reform efforts in the last decade in fragile states and developing societies has been a growing interest in informal justice systems. This trend is partially in response to the poor track record of interventions aimed at transforming formal justice institutions into well-functioning systems that meet the ideals of Western rule of law. It also reflects an effort to accommodate what is now recognized as an empirical fact – in many societies, informal justice systems are the primary locus of dispute resolution for the vast majority of the population, and therefore cannot be ignored. However, the rhetorical recognition of the importance of informal systems has far outpaced change in strategies or even programming. There are several reasons for this, but the biggest challenge is a normative one. International actors regard the alternative paradigms of justice offered by local communities as desirable only to the extent that they offer accessible and restorative remedies in ways that do not contravene international standards of rule of law and human rights. Here, the recognized advantages tend to be outweighed in the minds of many development actors by the perceived failure of informal systems to comply with these norms – especially when it comes to women's rights.

The dilemma this poses has resulted in two primary approaches. The first assumes that informal systems are inherently and irremediably inconsistent with women's rights and therefore the formal system must be the primary, if not sole, forum for adjudicating disputes involving women. The second approach seeks to engage with informal systems with the aim of transforming them to comply with international standards, while retaining the positive features of accessibility, familiarity and effectiveness. This note note discusses and analyses the limitation of these two approaches. Ultimately, it is argued here, they are flawed.

This note presents an alternative way of problematizing women's access to justice and corresponding ways of addressing the inequality. Rather than focus on selecting, promoting or changing the formal or informal justice system, intervenors need to embrace processes of social change as the means for instituting legal change.

Rule of Law reform efforts in developing areas face daunting challenges: (1) the stigma of imperialism when Western-style institutions are imposed, (2) the unwillingness of local communities to embrace the reforms, and (3) a severe shortage of resources – human, physical, and financial.

At the same time, some of these developing and post-conflict societies have highly functional customary law institutions (in Africa, e.g., a tribal chief applying a customary law handed down by oral tradition). These systems enjoy public confidence and function on very limited budgets – often providing prompt and accessible dispute resolution in the community. Unfortunately these indigenous systems do not always adhere to minimum standards of justice and human rights. In response, Rule of Law reformers in such communities are now working to codify customary law, and/or create rights of appeal from the customary courts.

These efforts, however, threaten to deprive the indigenous communities of ownership of and control over their law. Rule of law reformers must learn the lessons of colonialism, lest they perpetrate a new imperialism. Instead, customary adjudication should be subject only to collateral review. Statutory courts should defer fully to customary law adjudicators on the principles and application of customary law, and review their decisions only for compliance with minimum standards of justice and human rights (ideally those recognized in the local constitution and international human rights instruments the country has ratified). Collateral review dignifies customary adjudication by respecting the customary courts' determinations of law, while providing a safety net for those whose fundamental rights may be violated in customary court process. This approach eschews the cultural imperialism inherent in so many rule of law reforms, relying on the more appropriate, and ultimately more effective, indigenous systems to build the rule of law in a way that the local populations will recognize, respect and, hopefully, embrace.

The dominant scholarly assumptions are that transitional justice is a pre-condition for establishing a rule of law-based society after conflict or repression, and that transitional justice and the rule of law are mutually-reinforcing phenomena. Though the imperfect conditions of transition invariably give rise to difficult dilemmas over justice with imperfect solutions, literature in the field has downplayed or ignored the long-term impact on the administration of justice in the transitional state of the tendency of transitional responses to past human rights abuses to readily depart from the core values we associate with the rule of law. As noted in Teitel's study of the rule of law's relationship to transitional justice, this tendency is manifest where criminal accountability is suspended so as not to imperil the transition or where due process is circumvented in the idealistic and over-zealous pursuit of idealized transitional dividends through trial, truth commission and reparation. As transitional justice scholarship moves from moral-philosophical and jurisprudential preoccupations to greater empirical and interdisciplinary analysis, the sweeping normative assumptions of the past are increasingly being questioned. The article argues that though such acts or omissions may be excused by the exigencies of transition and contribute to the development of the conditions where the rule of law can prosper, liberalizing societies are better served by understanding these deviations from what we understand as full legality as deviations and not as manifestations of a fluid and contingent transitional rule of law.

Throughout the past two decades, the demand for social science indicators to quantify the performance of various institutions has increased dramatically. These indicators seek to address the concerns of policymaking and public audiences by operationalizing such complex, multi-dimensional concepts as governance, access to justice, corruption, and the rule of law, to name a few.

The increased demand for institutional indicators has led to a proliferation of indices. This special issue of the Hague Journal on the Rule of Law, entirely dedicated to measurement of institutional indicators across countries, represents the outcome of a collaborative effort between the Hague Institute for the Internationalisation of Law (HiiL) and The World Justice Project (WJP). In August 2010, these institutions convened in Washington, DC, a seminar with some of the leading researchers and indicator developers in the fields of governance, corruption, and access to justice. The goal of the seminar was to facilitate an open conversation about the need for, and the limitations of, cross-country institutional indicators. Presentations made at this seminar have been turned into papers for this special issue.

The continuation of a major role for the state in developing economies, and the emergence of forms of intervention not employed in the past, suggests that we may be seeing the emergence of a ‘new developmental state’ that is inspired by a new political economy.