CONCEPTUALIZING THE RULE OF LAW

Experts and analysts alike frequently use the term “rule of law” without seriously attempting to define it.Footnote ¹⁴ Undoubtedly, defining the full scope of the term is not that easy, and successive legal scholars have debated its theoretical foundations from every perspective.Footnote ¹⁵ Professor William Butler observed that the phrase was first devised by AV Dicey in his magisterial treatise Introduction to the Study of the Law of the Constitution. Footnote ¹⁶ That does not mean that Dicey invented the idea; he observed that the principles behind the concept owed their establishment to the “labours of lawyers” from medieval England.Footnote ¹⁷ In terms of definition, therefore, it is practically impossible to provide an exhaustive treatment of the concept; nevertheless, a number of jurisprudential propositions can be offered in an attempt to understand it. It appears reasonable to think that these propositions have aided in the eventual postulation of the three principles essential to (if not exclusive to or exhaustive of) the meaning bound up in the phrase “the rule of law”; all three principles reinforce one essential meaning. These principles are (i) that the rule of law is supreme and is of a formal and procedural character, addressing the way in which a community is governed;Footnote ¹⁸ (ii) that all are equal before the law and that all people are equally subjected to the ordinary law of the land administered by the ordinary law courts;Footnote ¹⁹ (iii) that the general assumptions of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the court and, accordingly, requires the existence of an independent and politically neutral judiciary that is broadly accessible to aggrieved individuals. By extension, the establishment of a judiciary by the state is not enough. Rights can be made available to citizens only when they are properly enforceable in the courts of law.Footnote ²⁰ In a complex modern society, a class of legal professionals is necessary; so too, therefore, are supporting institutions like law schools, bar associations and other non-state organizations.Footnote ²¹

The modern conception of the rule of law has drawn from its rich history and from diverse understandings of it at both national and international levels. In this context, the rule of law has become a central focus of domestic and international efforts to promote good governance. In today's world, economic development banks pay attention to the rule of law. For the World Bank, in the contemporary global system, the rule of law tends to cover at least four types of broad objective: the promotion of democracy; economic development and good governance; human rights and social development; and law enforcement.Footnote ²² For the United Nations Development Programme (UNDP), the rule of law is not only about guaranteeing rights but is an enabler of good governance and sustainable development.Footnote ²³ According to the UN system, the rule of law is a norm of governance “in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards”.Footnote ²⁴ It requires measures to guarantee the values of “supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency”.Footnote ²⁵

Recent theorizations of the concept of the rule of law have drawn a distinction between “thin” and “thick” versions of it.Footnote ²⁶ The “thin” rule of law connotes a mainly procedural interpretation of the notion in which the process of obtaining a “justice outcome” has to meet certain criteria in order to be considered “just” (thus being in harmony with the rule of law). For example, it should be public, impartial and accessible. As this approach says little about the substance of the law, it understandably leads to a focus on the systems, mechanisms and procedures at work at the different stages of the justice chain that ultimately lead to justice outcomes.Footnote ²⁷ It also leads to a focus on the institutions involved in each step and their capabilities to ensure due process. This concept of the rule of law offers a practical lens for understanding and working with reality that is premised on procedural normativity. It is reflected in the organizational set-up of a number of international rule-of-law development programmes and international agencies, such as the United Nations Global Focal Point on Police, Justice and Corrections.Footnote ²⁸ This theorization aligns more with the tool metaphor of the rule of law.

On the other hand, the “thick” description of the rule of law insists that correct procedure alone cannot bring about justice outcomes because the substance of those outcomes matters as much as how they are arrived at.Footnote ²⁹ In this version, it is generally held that justice outcomes must be reflective of the rights and duties conveyed by existing international treaties and / or domestic entitlements and obligations related to human, political and social rights.Footnote ³⁰ It is no surprise that this “thick” understanding of the rule of law resonates strongly in UN declarations and statements. In this regard, the 2017 World Development Report contends that “thin” versions of the rule of law have largely given way to “thicker” versions that move from a focus on procedure to a focus on substance, with greater attention to normative standards of rights, fairness and equity.Footnote ³¹ While this may be true at a declaratory level, the reality of much international rule-of-law promotion is that it uses “thin” approaches – meaning a focus on procedure, systems and institutions – to realise “thick” objectives.Footnote ³² In other words, activities that improve institutional performance, build capacity and increase access to justice are implicitly assumed or explicitly expected to contribute to bringing about normative change and to be adequate for ensuring the enforcement of this version of the rule of law in a procedurally correct manner.Footnote ³³ In this context, while the “thin” version of the rule of law appears to mirror the tool metaphor, the “thick” version appears to be more in tune with the causeway metaphor of the rule of law, discussed below.

Crucially, it appears reasonable to think that the governments of many fragile societies (which many African states are) may have signed up to the internationally generated content of the “thick” version of the rule of law, but neither the nature of their political order nor their “state of justice” enables them to give significant meaning to such declaratory intent – even if they intended to comply with it. In turn, this means that international rule-of-law development interventions, such as aid programmes, must take a pragmatic, incremental approach in the realization that much of the international declaratory reality of the rule of law serves two chief purposes. In the first place, “it provides an aspirational dot on the far horizon without, however, having concrete programming value”.Footnote ³⁴ Secondly, “local actors can use declaratory reality to engage in domestic contestation for progressive rule of law development, sometimes with international support”.Footnote ³⁵

Mutua sees the rule of law from the African perspective not simply as a totem of democracy, but as an integral element in every aspect of human development.Footnote ³⁶ According to him, “the rule of law is indispensable for the realisation of economic, social, and cultural rights”.Footnote ³⁷ In this regard, the segregation of the two canons of human rights – civil and political rights, and economic and social rights – was not a labour of the intellect, but a necessity of politics. As a result, the gap between the two canons cannot be wide, and must be minimized in any true development initiative. This is particularly true for Africa where violations of civil and political rights are a direct result of the denial of economic and social rights.Footnote ³⁸ A dynamic comprehension of the rule of law in Africa cannot be limited to legal formality and procedure; it must have as its core norm a rejection of oppressive and vested property and market interests that use the law to protect ill-gotten wealth and an unjust economic order. Social and substantive justice must be the purpose of the rule of law.Footnote ³⁹ Africa must identify and rethink many normative tenets of liberalism and thus the rule of law.Footnote ⁴⁰

According to Shivute, “apart from its enduring relevance in the promotion of ‘government of laws and not of men’, democracy, and political and civil rights, the rule of law must also be seen as an instrument for the promotion of social and economic development and social justice [in Africa] – which in themselves are conducive to peace and security”.Footnote ⁴¹ In its social and economic role, the function of the rule of law is to ensure that the objective of development is to bring about sustained and meaningful improvement in the welfare of the individual and to bestow the wealth of the country on all members of society. Shivute says:

This understanding of the role and essence of the rule of law is considered germane in the sense that it aligns more with the understanding of the causeway metaphor of the rule of law espoused in the penultimate section of this article.

RULE OF LAW IN CONTEMPORARY AFRICA

At the heart of development lies a fundamental commitment by the state to improve the well-being of everyone within its jurisdiction, through the expansion of social, civil, political, cultural and economic rights.Footnote ⁴³ Yet the African continent suffers from a reality in which millions continue to live in impoverished conditions within a surplus of global wealth and affluence.Footnote ⁴⁴ The development barriers that African nations face are consequences of a legacy of historical injustice and structural disadvantages, including social exclusion, unemployment, poor service delivery, an ineffective rule-of-law regime and state incapacity, all of which continue to stifle the growth of communities.Footnote ⁴⁵

An overview of developments in Africa over the last two decades reveals a growing commitment by governments to the principles of human rights, the rule of law, the ideals of transparent, accountable and democratic governance, and to a properly functioning justice system – specifically to constitutionalism.Footnote ⁴⁶ However, the pace of change has in practice been slow, and in the last few years there have been ominous indications of a reversal – a return to the gloomy age of dictatorship, with authoritarianism appearing on the horizon.Footnote ⁴⁷

CM Fombad suggests that the rule of law in Africa has gone through three main periods: the colonial period, the post-independence period and the period of a revolution in constitutional rights during the 1990s.Footnote ⁴⁸ During the colonial period, the theory and practice of the rule of law were largely unknown in African colonies, regardless of whether they had been colonized by the Belgians, British, Germans, French, Portuguese or Spanish.Footnote ⁴⁹ Any apparent differences in treatment were merely in degrees of harshness.Footnote ⁵⁰ Since colonial rule was neither constitutional nor democratic, there were no restrictions, based on fundamental laws, on the exercise of legislative, judicial or executive powers.Footnote ⁵¹ While flagrant human-rights abuses were commonplace in all the colonies, some colonial regimes, such as the Germans in Namibia and the Belgians in present-day Democratic Republic of Congo, gained notoriety for the atrocities they committed.Footnote ⁵² Although the European colonizers can be credited with introducing the modern system of courts in Africa, the system of justice under the colonial powers was dual in nature: the modern courts introduced by the colonizers were reserved for the whites or assimilated blacks,Footnote ⁵³ while ordinary Africans continued to be subjected to a much “tamed” system of customary or traditional justice.Footnote ⁵⁴

At independence, most African governments inherited constitutions containing provisions that protected human rights to varying degrees. There was, however, no reason to expect the new leaders, who had no knowledge or experience of democracy or constitutional rule, to quickly forget the lessons of authoritarianism and repression that they had learned from the colonizers.Footnote ⁵⁵ It was therefore no surprise that the new rulers quickly abrogated the constitutions, or simply ignored their provisions, and perpetuated the colonial pattern of human-rights abuses. In this context, Jean-Bédel Bokassa of the Central African Republic,Footnote ⁵⁶ Mobutu Sese Seko of ZaireFootnote ⁵⁷ and Idi Amin's eight-year military dictatorship in Uganda (when agents of the state operated without recourse to the rule of lawFootnote ⁵⁸) readily come to mind. Although post-independence constitutions provided for independent judiciaries, these were mainly reduced to the status of errand boys for the various dictatorial regimes, and were thus incapable of operating as either guardians of the constitution, protectors of human rights or impartial enforcers of the rule of law. Thus, before the 1990s, parts of Africa operated under a system of “constitutions without constitutionalism”.Footnote ⁵⁹ In the absence of constitutionalism the administration of justice virtually collapsed, and there was little respect for the rule of law or the protection of human rights. The economic decline, political instability, civil wars, famine, disease and other ills caused by decades of authoritarian and incompetent dictatorship were all factors leading to dramatic changes in the 1990s.Footnote ⁶⁰

Apart from Botswana (independent since 1966) and Mauritius (1968), the constitutions that operate in contemporary Africa are either new or significantly modified adaptations of the pre-1990 constitutions.Footnote ⁶¹ In this context, since 1990 a number of African states have rewritten their constitutions twice;Footnote ⁶² Egypt has also replaced the constitution of 2012 with a new one. However, the record for new constitutions belongs to Niger, which has had five new constitutions since 1990 (in 1993, 1996, 1999, 2009 and 2010).Footnote ⁶³ In terms of revisions and amendments of articles, Rwanda has amended 175 articles of its 2003 constitution; others also display high levels of amendments, such as Tanzania (with 100 articles changed), Nigeria (86 sections), Burkina Faso (71 articles) and South Africa (69 sections).Footnote ⁶⁴ Insofar as human rights protection is concerned, a comprehensive study of the scope of rights covered by modern African constitutions suggests that the highest numbers of rights are recognized by the constitutions of the Democratic Republic of Congo and Uganda, each of which recognizes 25 rights, while Tunisia and Libya, with 10 rights each, recognize the lowest number.Footnote ⁶⁵

One of the most significant developments in the 1990s as regards these constitutions was the adoption by most of the states of constitutional provisions that purport to promote the rule of law.Footnote ⁶⁶ In theory, these constitutions contain the idea that governments’ powers should be sufficiently limited in a manner that protects citizens from arbitrary rule, and that governments should be able to operate efficiently in such a way that they can be effectively compelled to operate within their constitutional limitations. In practice, however, the story is different. In Libya during the Gaddafi regime, the state and its agencies systematically breached the rule of law in order to suppress those who were critical of or were perceived as posing a threat to the regime, whether inside or outside Libya.Footnote ⁶⁷ Since the fall of Gaddafi in 2011 the situation seems to have deteriorated, and the pattern of rule-of-law breaches from the various militia groups has continued to be a widespread practice.Footnote ⁶⁸ In Algeria, as a result of almost three decades of civil war which began in 1991, the people are still struggling to come to terms with the actual dictates of the rule of law.Footnote ⁶⁹ In South Africa, one of the legacies of apartheid was the abuse of human rights and a penchant for disregarding the rule of law.Footnote ⁷⁰ In Zimbabwe, during the reign of Mugabe, a major human-rights crisis developed as the authoritarian government used whatever methods it considered necessary to ensure its continued survival,Footnote ⁷¹ a method of governance which apparently has continued even after the fall of Mugabe.Footnote ⁷² This situation is replicated in other African states and is corroborated by a study by Heyns and Kaguongo; they observe that although there has been a tremendous expansion in the embedding of rule-of-law principles in Africa since the 1990s, most international indicators point to a decline in the actual practice of the concept in the same period.Footnote ⁷³

As regards the independence of the judiciary, almost all post-1990 African constitutions recognize and sometimes purport to protect the independence of the judiciary.Footnote ⁷⁴ However, because of the substantial scope for political interference, the prospect of effective judicial independence in most African countries is virtually non-existent.Footnote ⁷⁵ In addition, Heyns and Kaguongo show that the prospects of obtaining fair judgments have been declining, and that this has contributed to the recent deterioration in human-rights protection in Africa.Footnote ⁷⁶ The main causes of this decline have been the increasing politicization of the judiciary, judicial corruption, a lack of resources and judicial conservatism.Footnote ⁷⁷ The deficiency in judicial independence makes empty promises of many basic procedural rights of citizens in the legal process, especially in politically sensitive cases.

Effective judicial independence in many African states, as a corollary to the rule of law, is often overshadowed by the powerful presence of the president intervening directly or indirectly in the appointment process.Footnote ⁷⁸ In anglophone Africa, judges are appointed by the president, usually based on the recommendations of a judicial service commission. In this context, for example, under section 174(3) of the South African Constitution, the president appoints the head and deputy head of the Constitutional Court, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, but appoints the chief justice and deputy chief justice after consulting the Judicial Service Commission only. The other judges, including those of the Constitutional Court, are also appointed by the president after consultations with the leaders of parties represented in the National Assembly, following an elaborate procedure in which s/he is required to select the judges from a list of nominees submitted by the commission.Footnote ⁷⁹ In Nigeria, the appointment of federal judges is also made by the president, who acts on the recommendations of the National Judicial Council, but this is subject to confirmation by the Senate.Footnote ⁸⁰ In Botswana, there is less scope for judicial independence because judges are appointed by the president, acting on the advice of the Judicial Service Commission, whose membership is dominated by presidential appointees;Footnote ⁸¹ more worrying is the fact that in appointing the chief justice, who is head of the judiciary and the president of the Court of Appeal, the highest court in the country, the president acts alone.Footnote ⁸² In Kenya, the president appoints the chief justice on the recommendation of the Judicial Service Commission, subject to the approval of the National Assembly. S/he also appoints other judges of the high court in accordance with the advice of the judicial commission.Footnote ⁸³ From the foregoing, it is clear that there is some latitude for presidential interference.Footnote ⁸⁴

In contrast, the scope for judicial independence in francophone and lusophone Africa is even more limited, as a result of the dominant part the president plays not only in the process of appointment but also in the promotion and disciplining of judges. Under this model (traceable to France) the president is the guardian of the independence of the judiciary, clearly suggesting that the judiciary is not on the same level as the executive but, rather, is below it. This conclusion is reinforced by the powers given to the president to appoint, promote, transfer and dismiss judicial personnel, which effectively compromises their independence.Footnote ⁸⁵ Apart from this de facto capture of the judiciary by the executive, many of the constitutions merely pay lip service to the principle of the separation of powers. This has resulted in a situation where domineering and “imperial” presidents are left to control and overshadow parliaments.Footnote ⁸⁶ Executive “arrest” of parliament has become very common in many African countries, including Cameroon,Footnote ⁸⁷ DR Congo,Footnote ⁸⁸ Ethiopia,Footnote ⁸⁹ NigeriaFootnote ⁹⁰ and Zimbabwe.Footnote ⁹¹ In Kenya, the story is no different; while there may be recent improvements regarding respect for the rule of law, Mbaku argues that contemporary governments have also engaged in activities that have undermined the country's democratic institutions, including raising allegations of bias against the judiciary, exhibiting poor leadership qualities in issues of respect for the law, and acting with impunity.Footnote ⁹²

As a result of these serious challenges, the rule of law under these constitutions is far from being real, operative or meaningful. Executive domination of parliament is often exacerbated by the hegemonic manipulation of the leading parties, which are usually managed by the president and a small inner circle of associates. In this context, the legislature, controlled by one party,Footnote ⁹³ merely rubber stamps laws put before it by the executive, in much the same way as was done by the one-party parliaments before 1990.

TWO METAPHORS OF THE RULE OF LAW

At the climax of Robert Bolt's play A Man for All Seasons, Oliver Cromwell plays the part of prosecutor at the show trial of Sir Thomas More. “I put it to the Court,” Cromwell says, “that the prisoner is perverting the law – making smoky what should be a clear light to discover to the Court his own wrongdoing!”Footnote ⁹⁴ To this attack, More impassively responds, “[t]he law is not a ‘light’ for you or any man to see by; the law is not an instrument of any kind. The law is a causeway upon which, so long as he keeps to it, a citizen may walk safely.”Footnote ⁹⁵ From this standpoint, one can construe two metaphors of the rule of law: the rule of law as a tool (or instrument) and the rule of law as a causeway.Footnote ⁹⁶ The choice between these two metaphors is, and has always been, a crucial one for most countries’ political development.Footnote ⁹⁷

In many legal systems, the instrumentalist metaphor is frequently deployed; the law is a sword, shield or tool to advance democratic ends, by which the law's utility can be measured. Instrumentalist metaphors of the rule of law, even when they are most benevolent, foster a combative relationship between the state and the individual. The state is intrinsically suspicious, and the citizens’ defence against its essentially adverse motivations lies in the law. Law as an instrument envisages a hard-line and uncompromising struggle between state and individual: the former for the law's power and the latter for the law's protection. The state's loss is, therefore, the individual's gain. The influence of the law as an instrument or weapon may not be recognized beforehand; its capacity, similar to its boundaries, is also likely to be unknown until the moment the instrument is tried in some legal dispute. The principle that the law applies universally to all is also confused by the notion implicit in this aggressive metaphor that some individuals seem to have more right to wield the sword of law than others. Thus the law-as-weapon metaphor (the rule of law as a tool) necessarily renders suspect the state's capacity to establish a “neutral judiciary” for the resolution of disputes.Footnote ⁹⁸ On the other hand, the causeway metaphor ensures the existence and effective functioning of the institutional attributes believed necessary to stimulate the rule of law (such as comprehensive laws, well-functioning courts and trained law-enforcement agencies).Footnote ⁹⁹

Unfortunately, history shows that with few exceptions African leaders have chosen the instrumentalist metaphor. For these leaders, in adopting this metaphor, the law is used like the shaft of a wagon; it goes wherever they turn it. Most of the freedoms associated with citizens’ ability to criticize laws and question the justice of government actions and policies are virtually non-existent in these states. Yet the rights to receive information and to exchange and debate ideas, whenever such information and ideas concern the content of the laws and the nature of government action and policies, are integral features of the constitutional interpretation of the rule of law.Footnote ¹⁰⁰ These African states appear to follow to the letter all the procedural dictates of a formal rule-of-law regime and yet have failed to establish, in the words of Charlow, “a truly just government or to provide a meaningful check on the arbitrary imposition of government authority”.Footnote ¹⁰¹ Rule of law in these states is used more as an instrument of power.

The application of law as an instrument of power and coercion leads to what Hayek identified as the rule of legislation (rule by law or through law). In this governance hegemony, the enactment of legislation appears patently and undeniably to represent the rule of powerful officials. In this system, the political system is one in which statutes and other legislation are the supreme authority in the state by virtue of adherence to a formal legislative process of passing statutes and other legal acts. In this context, legislation is a matter of will.Footnote ¹⁰² The legislative process produces law simply by virtue of a group of people in an assembly deciding that a given law is to be enacted. Usually, this is performed by the very people – powerful politicians – to whose authority the actual rule of law is supposed to be an alternative. The consequence of this is a system where the rule of law is akin to the evolutionary development of the common law, but is less constructive and less susceptible to deliberate control.Footnote ¹⁰³ The problem with this system of governance is that legislation can sometimes undermine the rule of law, by purporting, for instance, to remove legal accountability from a range of official actions or to preclude the possibility of judicial review of executive action.Footnote ¹⁰⁴ This appears to be the reality in Africa; Africa's rule-of-law trajectory (as was shown above) indicates that the idea of the rule of law is applied only on paper.

In most African states, the cost of attaining justice using the formal adversarial process is so prohibitively expensive that the ordinary person would choose to forego their rights rather than dream of suing to secure such rights, especially in civil matters. Technicalities, delays, endless adjournments and gimmicks by lawyers are factors that discourage the ordinary citizen. This condition is compounded where politically powerful governmental officials are excused from the application of the law. The fact that they have means indicates that they can buy their way out or can afford the almost-prohibitive expenses of going to court, paying for lawyers and short-circuiting the unduly prolonged time it can take for decisions to be handed down. The level of official corruption on the continent also suggests that the realization of the core ideal of the rule of law may in practice remain a myth for most citizens for generations to come.Footnote ¹⁰⁵

The judiciary and law enforcement are among the institutions most affected by corruption. In many African states, governments have rushed through judicial reforms reinforcing the executive's strong influence on the judiciary, seriously undermining the latter's independence, weakening judicial oversight of the executive, and in turn lessening its capacity to fight corruption. Corruption in law enforcement is particularly dangerous, as it has an impact on the safety of citizens and on their pursuit of justice, including in cases of political corruption and police misconduct.Footnote ¹⁰⁶ Corruption jeopardizes the good functioning of public institutions and diverts public action from their purpose, which is to satisfy the public interest. Where they are not properly addressed, corrupt practices, like money laundering and other illicit acts through dubious financial instruments and institutions, weaken the rule of law and respect for human rights “by allowing certain wealthy and politically powerful elites to take and self-deal amongst themselves – to the detriment of the people – at will and often with impunity”.Footnote ¹⁰⁷ Nevertheless, when African states begin to avoid the instrumentalist metaphor and instead adopt the philosophy behind the causeway metaphor, its core ideal will be realized.

Unarguably, the causeway metaphor better expresses the conception of the rule of law as against the instrumentalist metaphor of sword or shield. More importantly, it is precisely this conception that should be the focus of a state in which ruling elites seek to establish a consolidated democracy. According to Kahn:

Debates and dialogues over the creation of this legal causeway accurately capture the type of action political leaders should concern themselves with, especially in the early, critical period of a new or struggling democracy. Development of a legal causeway is an additional means of ensuring that leaders are engaged in constructing the boundaries of state power: where they begin, how far they extend and where they stop. Thus, viewing the rule of law as a causeway also makes clear that certain spheres of life are simply none of the state's business: there are many areas of private actions and decisions into which citizens would not want the law to encroach (for instance the choice to reproduce, the adoption of a religion or choice of assembly, amongst others). These are areas identified by Bernard Rudden as the “precious sphere of non-law”.Footnote ¹⁰⁹ These areas are easily recognized by the causeway metaphor: “it is what lies off the path in the bramble bush of human relations that are best left unencumbered by the state's legislation”.Footnote ¹¹⁰

The interface between the rule of law and individual liberty is also better articulated by the causeway metaphor than by imagery of the law as sword or shield.Footnote ¹¹¹ By clearly delineating the activities to be protected and those to be forbidden, the state recognizes the parameters of its power and creates “a basis for legitimate expectations” for its citizens. In doing this, the state is also able to construct “grounds upon which persons can rely on one another and rightly object when their expectations are not fulfilled”.Footnote ¹¹² In the event that these claims are uncertain, so also will be the limits of citizen's liberties.Footnote ¹¹³ Accordingly, to embrace the words of Thomas More as expressed in A Man for all Seasons, the citizen keeps to the causeway and walks safely. No transgression against the state is concealed and the citizen's rights in relation to others are well defined.Footnote ¹¹⁴ John Rawls captures this relationship thus:

This is indeed a valid and convincing assertion, because an established institutional environment authorizes the calculation of risk and provides a clear measure of consistency to the results of anticipated social relations. This is so not only between citizens but also for the citizen in relation to the state.Footnote ¹¹⁶ The metaphor of the causeway advances an understanding of the state that instrumentalist metaphors cannot; a state is imbued with the capacity to carry out what is clearly its responsibility, including “securing borders, promoting economic stability, and the like” – while its “power to employ its monopoly on the legitimate use of force against the individual in ways that deprive the individual of his established legal rights” is limited.Footnote ¹¹⁷

In the causeway metaphor, the rule of law is transformed into a rich and multi-faceted concept that encompasses far more than electoralism, constitutionalism or codification. The rule of law extends far beyond the institutions required for elites to negotiate the functioning of high politics. In addition to state institutions (such as a legislature, judiciary or organs of law enforcement), the rule of law also requires a variety of non-state institutions: organized legal education, a professional bar, and a myriad of supporting professions (for instance, accountants and investigators) and organizations (newspapers, public registries and credit bureaus, amongst others). The causeway metaphor of the rule of law affects the development of mass attitudes and commercial behaviour; it implants itself in a country's political culture and in its civil society, and establishes expectations about the role and limits of state bureaucracy and the boundaries of commercial freedom and individual action.Footnote ¹¹⁸ Lastly, but more significantly, the causeway metaphor ensures some level of shared expectations by political elites, lawyers and laypeople about what counts as law, about what the limits of judicial power are, and about which spheres of life the law may not be permitted to intrude into. Through the causeway metaphor, the institutional strength of the rule of law, although difficult to measure, is best expressed as a continuum.Footnote ¹¹⁹

In a consolidated democracy with extended experience of the rule of law, it is possible for the concept to be applied as causeway, sword or shield. Through continuous practice, the rule of law may become sufficiently embedded in the political culture and in the institutions and expectations of a society. In this regard, it is possible for such a society not only to tolerate the metaphor of the tool, but to also view it as occasionally necessary to correct democratic abuses (for example, the American Civil Rights Movement).Footnote ¹²⁰ But in an unstable system reeling from governance deficits, as exemplified by many African states, the causeway metaphor should be favoured over any other conceptions of the rule of law.