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Whose Rule of Law?

The mounting evidence of former US President Donald Trump's serial legal violations should put an end to the idea that the rule of law is a reliably persistent feature of wealthy, "mature" countries. With that shibboleth removed, the work of determining real-world underpinnings of effective legal systems can come to the fore.

CAMBRIDGE – In the early 2000s, there was a near-unanimous consensus among academic lawyers that the absence of the rule of law was strictly a “Third World problem” – meaning one that the advanced economies of the Global North had solved. Yet, just over a decade later, the United States elected as president a man who would go on to incite an insurrection at the US Capitol, conspire to overturn an election that he lost, abscond with classified documents when he finally left the White House, and then call for the “termination” of the US Constitution.

How did a quintessentially “Third World problem” become a “First World problem” as well? In fact, it was ever thus. The purported differences in kind between the Global North and the Global South have always been a product of colonial triumphalism, rather than reflecting an accurate scientific taxonomy.

This was the core insight of “law and development,” a beleaguered area of study that came into (modest) prominence in the 1970s. At the height of the Cold War, organizations like USAID and the Ford Foundation pushed law professors and legal scholars to take more of an active interest in evangelizing Western-style law (which is a bit like a pharmaceutical company paying a laboratory to “find” that one of its proprietary drugs is indeed effective). But, as a small coterie of law and development scholars pointed out, law is not always “potent” or “good,” even at “home” in the West.

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