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The rule of law is among the essential pillars upon which any high-quality democracy rests. But this kind of democracy requires not simply a rule of law in the minimal, historical sense that I will shortly explain. What is needed, rather, is a truly democratic rule of law that ensures political rights, civil liberties, and mechanisms of accountability which in turn affirm the political equality of all citizens and constrain potential abuses of state power. Seen thus, the rule of law works intimately with other dimensions of the quality of democracy. Without a vigorous rule of law, defended by an independent judiciary, rights are not safe and the equality and dignity of all citizens are at risk. Only under a democratic rule of law will the various agencies of electoral, societal, and horizontal accountability function effectively, without obstruction and intimidation from powerful state actors. And only when the rule of law bolsters these democratic dimensions of rights, equality, and accountability will the responsivcness of government to the interests and needs of the greatest number of citizens be achieved.
Although in some of my previous writings readers may find partial attempts at the theoretical and normative justification of a democratic rule of law, here I make only passing reference to these matters. My intention is to contribute to a discussion concerning if and how something called the rule of law, or the democratic rule of law, may be conceptualized and, insofar as possible, empirically gauged. To this end, the concluding section of this essay proposes a set of variables for the exploration of this dimension. Please note that what follows has been formulated with contemporary Latin America centrally in mind; it is of course an open question how well it might apply outside this region.
The "rule of law" (like partially concurrent expressions such as Rechsstaat, état de droit, or estado de derecho) is a disputed term. For the time being, let me assert that its minimal (and historically original) meaning is that whatever law exists is written down and publicly promulgated by an appropriate authority before the events meant to be regulated by it, and is fairly applied by relevant state institutions including the judiciary (though other state institutions can be involved as well). By...