LSI Forum Volume 2, 2016

Whose Rule of Is It? Karen J. Alter1

VERSTEEG, MILA, and TOM GINSBURG. 2017. Measuring the Rule of Law: A Comparison of Indicators. Law & Social Inquiry 42 (forthcoming). Available at http://onlinelibrary.wiley.com/doi/10.1111/lsi.12175/abstract.

Increasingly firms, charities, governments, international institutions and donors are wanting hard data to back their decisions, a trend that is making indicators increasingly important drivers of fundamental decisions (Merry, 2011; Kelley and Simmons, 2015). The more foreign investors and hedge funds systematically investigate the ease of doing business, and the more individuals and NGOs base their funding on the efficient use of resources,2 the more indicators end up both reflecting and creating the world we live in.

Because the rule of law (RoL) is associated with so many good things— democracy, good governance, respect for human rights, economic growth, and a good investment climate—RoL indicators have become incredibly important determinants of where resources will flow. Mila Versteeg and Tom Ginsburg’s article “Measuring the Rule of Law: A Comparison of Indicators” is a must read for anyone who thinks the RoL is important and for any scholar who sees RoL indicators as conveying important information.

I have always wondered about these indicators, so I found Versteeg and Ginsburg’s article to be an excellent primer. The authors went into the indicator sausage factory, breaking down how the four main RoL indicators (World Governance Project, Heritage Foundation, Freedom House and the World Justice Project) are created. Below I highlight what I found to be the most intriguing and important takeaways. My interest in these indicators comes from my new research group on Global Capitalism and Law.3 As Versteeg and Ginsburg note, the World Bank long ago determined that the RoL is important for establishing markets and for improving governance. Indeed there is an extensive literature suggesting that the RoL is a key ingredient for economic growth and rising standards of living (Haggard and Tiede 2011). I wanted to know if RoL metrics are little more than a measure of whether a domestic political system provides a conducive

1 is a Professor of at . She may be contacted at [email protected]. 2 See Charity Watch, https://www.charitywatch.org/home. 3 Buffett Institute, Northwestern University, Global Capitalism & Law Research Group, http://buffett.northwestern.edu/programs/global-capitalism-law/index.html.

© 2016 American Bar Foundation

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environment for the flourishing of global capitalism.

I wasn't surprised to learn about the complaints regarding the World Bank's World and the Heritage Foundation’s indicators. These two institutions are closely linked to the economic side of liberal internationalism, and especially to the private sector's preference for strong property rights protections and stable legal rules.

Freedom House, by contrast, is interested in the political side of liberalism—democracy, human rights, and the promotion of civil and political rights. According to Versteeg and Ginsburg, Freedom House indicators put a particular emphasis on human rights (8).

The authors explain that the World Justice Project (WJP) was responding to the perception that these existing metrics were either too economically focused, or too focused on measuring the ingredients of liberal democracy. An explicit goal of the WJP project was to bring other normative goals into the RoL calculation.

The authors return to the literature on the RoL, providing a useful synopsis of this debate. They associate the WJP’s normative goals with “thick RoL,” a rule of law that addresses the needs of ordinary people as well as economic actors (9). According to Versteeg and Ginsburg, the WJP’s indicators are “by far the most ambitious effort to measure the rule of law globally” (9), drawing on two unique data sources, a general population poll and questionnaires “completed by in- country practitioners and academics with expertise in civil and commercial law, criminal justice, labor law and public health” (11, 12).

To learn about these differences is alone worth the price of admission. But the article then goes so much further.

Versteeg and Ginsburg wanted to know if the World Justice Project's comprehensive assessment method, and its effort to better capture factors that matter to ordinary people, generated different results compared to the indicators that capture (in my words, not the authors) the interest of firms, bankers, foreign investors and American human rights activists. Their surprising finding—the high level of correlation between all four indicators—then led for a search to understand why the World Justice Project ended up in such a similar place as institutions that were satisfied focusing mostly either on the human rights or economic dimensions of the RoL.

The authors’ first guess is that all indicators were capturing relationships with neighboring concepts, including democracy, human rights, constitutionalism, judicial independence, GDP, corruption and impartial governance. Their concern in this investigation was primary methodological; they wanted to be sure that RoL indicators were capturing something distinct from these neighboring concepts.

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Their answer is not a simple yes, but overall they see the RoL measurements as distinct from these other concepts.

I was particularly interested in their finding that corruption correlates especially highly with the RoL indexes. Corruption is an extremely important metric for global business—it is the mainstay of the “Doing Business” set of indicators that foreign investors care about.4 The authors find that corruption indexes enter into the measure of 3 of the 4 indicators (Freedom House does not include this metric). Because the Heritage Foundation uses Transparency International's corruption coding,5 the complete correlation between the Heritage Foundation and the most commonly used corruption index is expected. More surprising, however, is that even though the various indicators incorporate many different measures of the RoL, high and low RoL scores of the World Bank's, Heritage Foundation’s and the World Justice Project's RoL indicators correlate strongly with Transparency International's Corruption Index. Of course ordinary people care about corruption too. But I still wonder if the rising focus on the RoL reflects primarily the concerns of American economic and political actors?

The authors came out in a different place than my focus on economic interests. Exploring the difference between the results of the World Justice Project's population survey and the coding of experts, they conclude that the expert opinion industry is extremely like-minded. Even when the producers of indicators drew on a different set of experts, and asked them to assess a broader range of factors, the results produced by experts show a remarkably high level of correlation. Of course one still wonders if the similarity emerges from the prevalence of legal actors defining what constitutes the RoL. Might a grass roots definition look different? And would grass roots definitions in developing countries be different than those in developed countries?

In any event, the finding of likeminded experts is important. Drawing on the WJP’s population surveys, the authors then show that expert assessments miss a number of factors that populations care about. This discussion and its findings are especially illuminating for scholars and practitioners who care about the real world that the indicators are trying to capture and reduce to a single number.

For people concerned about an overreliance on experts and on indicators, Versteeg and Ginsburg’s findings about the gap between the coding of experts and the results of polling are a sober reminder. We have long known that foreign policy experts have very different foreign policy concerns and opinions compared to publics (Eichenberg 2016). The explanation for this difference is usually that the foreign policy experts have a deeper understanding of foreign policy compared to the public, the implication being that we should perhaps put more faith in informed expert opinion compared to emotionally driven or misinformed

4 World Bank Group, Doing Business, http://www.doingbusiness.org. 5 Transparency International, Corruption By Country/Territory, https://www.transparency.org/country/. 3

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public perceptions.

But for the RoL, this gap has a different meaning. The experts may in fact be more right than the public about whether or not there is a RoL, however the RoL is defined. But who is more correct ultimately does not matter. The RoL contributes to faith in governance. If the people do not have faith that governments respect the RoL, it really does not matter if the legal experts assessing due process, courts and other legal procedures are more or less right.

Versteeg and Ginsburg stop after comparing what the RoL indicators capture and do not capture, but their finding of the disparity between expert assessments and public views across all four indicators raises very important questions.

Businesses may not care about this gap, so long as the investment climate stays good. But if the RoL is to deliver its many promised goods, then scholars need to care and investigate this gap more systematically. Sally Merry’s (2003) anthropological work that finds that lived experiences with the law matter more than any assessment of hard facts about the legal system provides a start. Digging deeper into the radically different perceptions of the law among racial groups provides another start. In this sense, a key take away from the Versteeg and Ginsburg analysis is that indicators are serving experts yet perhaps not capturing what publics believe or want from the rule of law.

REFERENCES

Eichenberg, Richard C. 2016. Public Opinion on Foreign Policy Issues. Oxford Research Encyclopedias: Politics. Available at http://politics.oxfordre.com/view/10.1093/acrefore/9780190228637.001.0001/ acrefore-9780190228637-e-78.

Haggard, Stephan, and Lydia Tiede. 2011. The Rule of Law and Economic Growth: Where are We? World Development 39: 673-685.

Kelley, Judith G., and Beth A. Simmons. 2015. Politics by Number: Indicators as Social Pressure in International Relations. American Journal of Political Science 59: 55–70.

Merry, Sally Engle. 2003. Rights Talk and the Experience of Law: Implementing Women's Human Rights to Protection from Violence. Human Rights Quarterly 25: 343-381.

___. 2011. Measuring the World: Indicators, Human Rights, and Global Governance. Current 52: S83-S95.

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