Rule of Law: Challenges and Opportunities

ABSTRACT.The concepts of 'law' and 'rule of law' have been highly debated throughout history and still are at present time. This article focuses on relationship between (rule of) law and governance, between (rule of) law and state, while reflecting on topics of sovereignty, need for legitimacy and challenges of (rule of) law and nation-state in globalized world. The article then examines how rule of law is applied in China.Keywords: rule of law, governance, state, globalization1. Rule of LawThe idea of men being ruled by law and not by other men, as basic principle of rule of law, started from ancient Greek philosophers who militated for the supremacy of law as protection against arbitrary rule of tyrants.1 The modem concept of rule of law was best expressed in 17th century England where it stood for higher law that limits even power of King. Nowadays improving mle of law is linked to good governance, financial institutions, aid organizations and governments consider it key factor in their reform programs.2The following organizations use indices to measure level of law: Bertelsmann Foundation - its rule of law measure is part of larger data set, Bertelsmann Transformation Index, which investigates level and conditions of constitutional democracy combined with socially responsible market economy; Freedom House - responsible for indices linked to projects Freedom in World, Countries at Crossroads, and Nations in Transit; Global Integrity - its index of rule of law and access to justice is included in wider data set on national-level anticorruption mechanisms; Political Risk Services Group - its law and order index constitutes fraction of International Country Risk Guide; Worldwide Governance Indicators project, affiliated with World Bank, also has rule of law index.2. The Law and StateMichel Foucault's concept of govemmentality (or governing of mentalities, shaping minds of population through seemingly transparent institutions, without use of force) gives insight into role of law in global governance. First, governance through law can be key asset for political rule and domination. Second, govemmentality highlights significance of collective thought in conditioning how we think about exercise of authority in international relations. These two aspects of govemmentality applied to law in international relations provide new perspective which identifies rule of law as means for government.3According to Nikolas Rajkovic, in global governance we are better off speaking of mle through law as opposed to rule of law. He draws attention to complex relations between state actors, non state legal actors (such as international courts and transnational advocacy groups) and international laws. According to him, sources of international law (such as treaties and customs) did not arise independent of politics - they were made by and between states, so in other words - according to particular political advantages. International legal institutions, credited with an active role in global governance owe their existence and function to support and funding of key states.4 Also, emerging global legal system is less an institutional constraint on power and more a rationality of government that uses techniques such as judicial legality to craft normative standards and oversight practices which can be amenable to political imperatives.53. Civil and Common Law StatesCountries with tradition of common law consider their government to be 'a mere arbiter between various competing social interests' whose tasks include maintaining balance among different social forces, preventing conflicts or solving them.6 In countries with tradition of civil law, state, through its authorities and institutions, has a social engineering function' - they are responsible 'for setting and achieving certain political and social goals within society. …