The Rule of Law and Human Rights
![handle is hein.journals/judica87 and id is 294 raw text is: THE RULE OF LAW AND
HUMAN RIGHTS
An examination of 154 developing and transitional countries
indicates the importance of law and judicial independence
in securing a variety of human rights.
by CLAIR APODACA
photography by CORINNE DUFKA
uman rights advocates, legal scholars, and politi-
cians have posited that the primacy of the law is
fundamental to the protection and promotion
of human rights. Functioning, independent judiciaries
under the rule of law can end the impunity, preferential
treatment, and political protection of the perpetrators of
human rights violations-without them, human rights
and humanitarian guarantees are fragile, and social jus-
tice merely a dream. This article examines the relation-
ship between the presence of independent, autonomous,
and effective judiciaries within the borders of sovereign
states in the developing world and the protection of
human rights.
Is law meaningless?
Despite the growing influence of human rights on every-
day politics, many researchers still operate under the
assumption that the law is meaningless, a mere window
dressing in international affairs. Any regime that is will-
ing to murder, torture, or arbitrarily detain its citizens
will have little compunction against violating words on a
piece of paper. Moreover, if a regime were to recognize
legal limits on its authority, it would not violate the
human rights of its citizens.
In her cross-national, pooled, time-series statistical
study on constitutional provisions for human rights,
Linda Camp Keith found that constitutional guarantees
to 10 fundamental rights (freedom of speech, assembly,
press, religion; public trial; fair trial; the right to strike;
writ of habeas corpus; and ban against cruel or inhumane
punishment) were somewhat discouraging:2 many were
statistically insignificant or even correlated with repres-
sive government behavior. In particular, Camp Keith
writes, the assessment of the impact of the constitutional
promise of the five basic freedoms (speech, assembly,
association, religion, and the press) and the right to
strike on human rights abuses is not very optimistic.
None of these provisions produced an observable
improvement on human rights behavior.' The obvious
and disheartening conclusion is that constitutions are
generally no more than mere window dressing, or
worthless scraps of papers. '
However, the assessment that legal rules and institutions
are meaningless is far from conclusive. For example, Chris-
tian Davenport's pooled, cross-section times-series
1. See, e.g., Murphy, Constitutions, Constitutionalism and Democracy, in CON-
STITUTIONALISM AND DEMocRACY: TRANSITION IN THE CONTEMPORARY WORLD
(Greenberg, et al., eds.) (New York: Oxford Univ. Press, 1993); Howard, The
Essence o] Constitutionalism, in CONSTITUTIONALISM AND HUM.AN RIGHTS: AMER-
ICA, POLAND, AND FRANCE (Thompson and Ludwikowski, eds.) (New York:
Lanham, 1991).
2. Keith, Constitutional Provisions for Individual Human Rights (1977-1996):
Are They More Than Mere Window Dressing? 55 POL. RES. Q. 111, 122 (2002).
3. Id. at 11, 22.
4. Howard, supra n. 1, at 3.
292 JUDICATURE Volume 87, Number 6 May-June 2004](ViewImageLocal?handle=hein.journals/judica87&div=75&collection=&method=preview&ext=.png&size=3)
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The Rule of Law and Human Rights
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