Understanding Rule of Law/ Supremacy of Law And Underlying Obstacles in Turkey and Around the World

Jeffrey E. THOMAS

1. INTRODUCTION

Rule of Law has become every country’s ambition; developed countries are promoting it, multinational corporations want it, and aid organizations are trying to build it. I’ve never heard a country say (at least in modern times; the cultural revolution may be the exception), “We reject the rule of law,” although by their actions some countries have done so. My goal is to provide some additional perspective on the Rule of Law for discussion and deliberations here. I will start with some of the major obstacles, and then make a few comments regarding my impressions about Turkey and the Rule of Law as compared to other countries. There are three major obstacles that I will discuss briefly today: Defining the rule of law, developing rule of law culture, and legal structure to support rule of law. Let me start with the definitional problem.

2. OBSTACLES

Rule of Law is very hard to define. There is a famous saying in American jurisprudence about pornography, another very difficult legal concept to define. Justice Potter Stewart wrote that while he may not be able to define pornography, “I know it when I see it.” The same approach is often used for Rule of Law. It is exceedingly difficult to define, but nearly all countries claim to have it or at least to be making progress towards it.

This difficulty in definition is compounded by very heavy cultural baggage carried by the concept of “rule of law.” The notion of rule of law developed out of the western liberal cultures, and as such is laden with western liberal democratic values. To westerners, rule of law is synonymous with numerous political, civil, economic and human rights. While there are debates about the scope of these rights, there is pretty good consensus about such things as the right to participate in governance, the freedoms of speech and assembly, the rights to own property and engage in contracts, and some sense of individual liberty. This value-laden notion of “rule of law” can be understood to be the “thick” theory of the rule of law.