Randall Peerenboom in the introduction of his edited volume Asian Discourses of Rule of Law

argues that the concept of rule of law has utility despite its conceptual opacity and problems
with its specific application. He also contends that distinguishing between what he calls “thick”
and “thin” theories of rule of law can bring more clarity to the concept and make it possible to
better evaluate legal systems. I disagree with both these points. I think that Peerenboom’s thick-
thin classification does more harm than good to the already murky concept of rule of law.
Moreover, I believe that the ambiguities inherent within the rule of law framework, as well as the
problems in its particular application to variegated societies, give us sufficient reason to
abandon the rule of law project in its current form.

The phrase “Rule of Law” now has such a multitude of meanings, it is impossible to pin-down its
precise definitional scope. As Martin Krieger has argued, attempts at defining rule of law began
in the late 19th century today and continue till date. Peerenboom contends that despite these
contestations, there exists broad consensus among scholars about some underlying themes
and ideas. From a sample of three “formalist” or “anatomical” definitions- that of the english
philosopher Dicey, the World Justice Project(WJP) and Lon Fuller it is immediately clear that
despite some commonalities, these definitions differ in fundamental ways. For example, one of
the criteria in Dicey’s definition is common courts, a criteria not found in either Fuller or WJP.
Similarly, WJP contains independence of judiciary as one the criteria, a point missing in both
Dicey and Fuller. Perenboom's own list of criteria ,which he believes are generally agreed upon,
include acceptability of the laws- a criteria missing in all three of our sample definitions. These
differences- independence of judiciary, common courts, and acceptability of laws- are not mere
quibbles. They are differences which affect the very nature of legal systems. Moreover these
are merely the differences between the formalists. A even greater distance exists between
these and definitions which focus on normative goals of rule of law. If, for example, the
normative aim of Rule of Law is to prevent arbitrariness, then none of the formalist criteria may
be necessary or sufficient. Peerenboom acknowledges these fundamental disagreements, but
does not explain why we must even begin to think of “rule of law” as a phrase capturing a
singular concept which can be studied.

The problem however runs far deeper than mere disagreement. It seems to me that scholars
who study “rule of law”, define it without any empirical or sociological basis. Why does
Peerenboom for example settle on 6 accepted criteria rather than say 32? Why does Krieger
believe non-arbitrariness to be the normative goal of rule of law? A concept with the rhetorical
force such as that of “rule of law” cannot simply be defined in terms of the scholar who is
studying it. One cannot simply say that they believe that the correct definition or consensus or
classification about the concept is correct. As Peerenboom’s own analyses of several countries
shows, rule of law has no agreed upon common meaning, has different effects in different
countries and has been used in different ways historically.The problem with Peerenboom's
analyses is that he seems to be constantly measuring these conceptions with his own concepts,
without justifying these concepts in the first place.

To this muddled and ambiguous understanding, Peerenboom adds another complexity-

classifying the theories into “thick” and “thin” versions. Thin versions according to Peerenboom
are those which focus on the legal system of State, such as the one we see in the definitions I
have mentioned above, regardless of the political form of the State. Thick versions, on the other
hand start with the thin versions but then “incorporate elements of political morality”. As with his
definitions, Peerenboom offers no empirical basis for this classifications. His point seems to be
that countries such as Singapore may have thin rule of law but may not fulfill the criteria of thick
rule of law. The resulting expansion of the phrase is so large, that I think it loses all semblance
of meaning. Thick rule of law versions can now depending on the author include morality, form
of government, constitutional design, theory of rights etc. By continuing to expand the scope of
rule of law , Peerenboom has ratified a catch-all term to be used by anyone for any purpose.

To be fair to Peerenboom, he seems to be aware of the dangers of the “thick” approach, but
seems to believe there continues to be value in adopting it. This idea- of acknowledging the
problems in ideas and still adopting them- seems to be Peerenboom’s attitude throughout his
introduction. For example, in one section while discussing a particularly hard case of normative
choices Peerenboom admits, “in the end, we need to look at how a system or particular rule of
practice works and then evaluate it”. (12) Yet he says “abandoning rule of law is neither possible
nor desirable”. He cites two reasons for this position, both of which are ill conceived. Firstly, he
claims that despite differences the rule of law exists in practice. Since, it is a matter of fact, one
has to engage with it. According to me, merely because a phrase is used doesn’t mean that it
has conceptual or normative worth. If “rule of law” is simply the proverbial ladder that judges,
governments, development organisations and citizens use to achieve their individual goal, it
seems to me that the intellectual project should be to expose their fallacious reasoning rather
than try and create some non-existent meaning to justify their political posturing. Secondly,
Peerenboom claims that rule of law provides a “useful heuristic guide for legal reforms”.(12)
Besides the fact that this reason hints at a white man's burden sort of orientalist logic, this
reason suffers from the problem we mentioned earlier - there is no uniformity in the items in the
checklist or the normative goals that such a checklist seeks to achieve. Even if we assume this
uniformity, we constantly have examples- such as Congo and Vietnam, where such guidebooks
for rule of law have either failed or seem limited success.

It would seem that “the rule of law” discourse has become a game of normative one-upmanship,
where scholars each try and claim the best normative model for a state and call it “Rule of law”.
The variations between both theory and application are so pervasive that I think that the entire
project is misconceived. This is not to say that I want development aid for legal system reforms
to stop. Like Frank Upham, though i am critical of set templates, I believe that legal systems of
one country may hold important lessons for another. To do this effectively and constructively
however, I claim that the hallowed status that “rule of law” has attained must be deconstructed.
Peerenboom, despite his descriptive comparison of asian legal systems, fails to do so.