There exists broad consensus in political science that the rule of law is as essential to a consolidated modern democracy as electoral politics or a robust civil society. Paradoxically, however, the rule of law as an institution has not been subjected to nearly the same rigorous study as those other popular variables. Although frequently used, the term is rarely defined. Political scientists declare the general importance of the rule of law, but reduce their focus to the "rules of the game" for political elites and the adoption of select laws and judicial institutions. Frequently, an instrumentalist metaphor is deployed: the law is a sword, or shield, or tool to advance democratic ends, by which the law's utility can be measured.
This Article presents two related arguments against such approaches to the study of the rule of law in Russia. First, predictions about Russian democracy will be more prone to error if specialists on Russia urge the development of the rule of law but limit themselves to cramped understandings of the full parameters of this institution. Second, instrumentalist metaphors of the rule of law hinder our understanding of the importance of the rule of law for a would-be democracy like Russia. The rule of law is better understood there not as an instrument wielded by or against the state, but as a causeway. The primary value of this causeway stems from the security its existence provides citizens to move freely among state and non-state institutions in daily life, commerce, and politics.
Exactly what sort of an institution is the rule of law? What is the extent of its value in a teetering electoral democracy like Russia? How can its existence - let alone its efficacy - be measured in such a state? These are the questions addressed in this Article from theoretical, historical, and contemporary political perspectives.
Georgetown Journal of International and Comparative Law
Jeffrey Kahn, The Search for the Rule of Law in Russia, 37 Geo. J. Int'l L. 353 (2006)