Abstract
The rule of law has been tested over the past decade, not only in developing countries but also worldwide. The rule of law community has, in the past, focused mostly on improving the rule of law but has not emphasized building resilience into those rule of law gains. This Article will explore how development programs might encourage more robust features in their partner countries to withstand attempts to undermine the rule of law. This exploration will draw upon an umbrella concept of guardrails and norms, often associated with protecting democracy, and look at four approaches that might be used for this defensive rule of law. The four approaches include (1) militant (or defensive) democracy; (2) the idea of social support for the rule of law; (3) the benefits to the rule of law in pluralistic legal systems; and finally, (4) an overview of fourth-branch institutions. An example from constitutional reforms in Albania demonstrates how these approaches might prevail. A principal lesson is that defensive rule of law could focus both on programs that build resilient institutions—such as fourth-branch institutions meant to protect independent, responsible courts through appointment, governance, and discipline—and also on programs that encourage resilience in the human element, including improving norms and legal culture. In pluralist legal systems, this approach may have different guarantees available.
Recommended Citation
Jon Smibert,
Defensive Rule of Law,
73
Emory L. J.
1111
(2024).
Available at:
https://scholarlycommons.law.emory.edu/elj/vol73/iss5/1