Re-Conceiving the Rule of Law: Values, Relationships, and Technology

The movement to incorporate Asian values in the law offers an opportunity to broadly re-conceive the Rule of Law toward a more authentic, inclusive, and universal framework for understanding legal problems and building legal systems. In the West, Rule of Law ideas evolved from a strong heritage of Enlightenment rationality and liberal, individualistic philosophy. This resulted in limited understandings of a “legal problem” and the procedures by which those legal problems should be resolved. Legal problems were viewed as breaches of legitimated rules; court procedures were designed to compare human behavior to those rules. Problem and procedures thus co-evolved successfully, but within a relatively narrow, confined niche. The Western Rule of Law thus emerged as a Platonic or ideal type, comprised of:• legitimated, transcendent rules; • judged impartially with a blindness to personal identities; and• resistance to the influence of either informal cultural norms or achievement of overarching social goals. From this traditional perspective, incorporating Asian values into the Rule of Law could be disruptive, inviting inconsistent legal outcomes; threatening formal equality; and positing explicit social goals that undermine atomized social and political mobility.And yet reality has always diverged from the ideal type, in social relationships and even within Western legal systems. Legal problems never have been simply about legal rules, with decisions couched in binary outcomes between adversaries. Instead, legal problems have always also been about human relationships, cultural understandings and identities, and available technological infrastructure. Figure 1 below illustrates the larger contextual dimensions constituting a “legal problem.” The circles are rarely equivalent in importance. For a given problem, the circles will likely vary in intensity or importance among one or more parties to a dispute. Legal systems everywhere are now poised to acknowledge formally the multidimensional nature of legal problems, and to incorporate cultural values, relational consideration, and technology into the Rule of Law. This re-imagining is prompted by the explosion over the past twenty years of procedural alternatives by which legal problems are prevented or resolved. Each alternative procedure is stronger or weaker at uncovering and addressing the different dimensions of Figure 1. Mediation, for example, works strongly with human relationships; truth and reconciliation commissions incorporate cultural as well as therapeutic values; online dispute settlements take advantage of technological capabilities; data mining and blockchain ledgers may prevent some disputes from arising. In sum, our ideas about the nature of legal problems can expand, because we now possess multiple procedural tools to address those broader contexts. Together, those developments enable a new conceptual and institutional framework for the Rule of Law that: (1) far more strongly recognizes the cultural, social, and technological contexts in which legal problems are embedded and shaped; and (2) seeks to resolve each legal problem with the appropriate procedure, or mix among alternatives. The goal is to design a set of legal procedures equal in sophistication, sensitivity, and flexibility to the demands of the problems that the legal system is asked to resolve; and then to allocate problems to the most appropriate procedural alternative. Being conscious of the multiple dimensions of legal problems and alternative procedures offers the prospect of stronger realism, transparency, and refinement in our legal systems. It also offers the possibility of a universal, yet flexible and multicultural, framework. Asian values would have a formal role in such a Rule of Law — both conceptually and institutionally — as could Western values, or religious values, or human intimacy. A globalized, digitalized world calls for a universal conception of the Rule of Law — but one that is more respectful and inclusive of the disparate cultural, social, and technological contexts in which legal problems actually arise.