Rule of Law and Informal Institutions
Over the course of the widespread third wave of democratization, a key observation has been made frequently: The introduction of elections alone does not guarantee a functioning democracy. The main indicators used in this determination are weak rule of law and a lack of checks and balances due to an unsatisfactory level of institutionalized, horizontal accountability (O’Donnell 1998; Schedler, Diamond and Plattner 1999). Additional criteria, which are present in modern, Western constitutional states, must be met. Unsurprisingly, O’Donnell (1999; 2004) explicitly urges that the existing foundations of democracy in the West and the implicit requirements of democracy should be identified and analyzed. He considers the concepts of Rechtsstaat, rule of law, and the constitutional state (or constitutionalism) to be essential to the analysis. For this reason, the fundamental constitutional order, rather than system of government, is addressed. This applies to the legal form or the judicial system, the basis for governance, in which state activity manifests itself. The analysis of systems of law is relevant not only to democracies, but also to authoritarian regimes, because it sheds light on their dynamics and stability. Investigating both kinds of regimes leads us to the following questions: Do legal systems always have characteristics of the rule of law, or in some regimes, do they possess only an instrumental nature (“rule by law”)?
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