Bringing up the Rear but with High Hopes

FORBES – Luis Rubio

Companies employ diverse macroeconomic or sectorial indicators for decision making about investments, production lines, and business opportunities. Over the last years, the “World Justice Program*” (WJP) has been devoted to formulating indicators for another type of measurement: the degree of the Rule of Law that characterizes a country. Their purpose is to provide for the citizenry, enterprises and governments an analytical gauge that allows for evaluating not only production scenarios of the next few months, but also the general conditions within which the society and the economy function. This is a titanic effort that yields quite interesting results.

The index commences by defining the Rule of Law, something it does in stages. “The rule of law provides the foundation for communities of opportunity and equity – communities that offer sustainable economic development, accountable government, and respect for fundamental rights.” “Effective rule of law helps reduce corruption, improve public health, enhance education, lift people from poverty, and protect them from injustices and dangers large and small.” It is concerned with proposing a set of objectives rather than a precise definition, but it is suggestive of the complexity of the term, so much so that the introduction begins with the affirmation that “the Rule of Law is notoriously difficult to define and measure”.

Instead of attempting a definition, the project proposes a series of conditions that should be present so that the existence of the Rule of Law can be affirmed: 1. The government and its officials and agents as well as individuals and private entities are accountable under the law; 2. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property; 3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient; 4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

How to measure something so apparently fluid? The way that the WJP resolves the dilemma is with a series of indicators that is later compared at the international level. Its analytical objective is to determine: a) to what degree does the law impose limits on the exercise of power by the government and its agents?, and b) to what extent the state limits the actions of members of society and fulfills its basic duties toward its population so that the public interest is served, people are protected from violence, and members of society have access to mechanisms to settle disputes and redress grievances? As concepts, both are impeccable. However, encoding them so that they can be quantified, thus compared, constitutes a significant challenge.

Despite all the problems that can be found with this, many valid, the index compares 99 countries in terms of eight factors that roughly group one hundred indicators. These factors are: constraints government powers, absence of corruption, open government (transparency), fundamental rights, order and security, regulatory enforcement, civil justice and criminal justice. It will come as no surprise to anyone that the Nordic countries are in dispute for the first places, followed by nations such as New Zealand, the Netherlands, Canada and the majority of Europe. Mexico was in the 79th place out of 99, behind the majority of Latin American nations and even much worse than several nations of the Middle East and Africa.

This type of measurement always lends itself to controversy because it attempts to measure things that are difficult to evaluate in objective terms. However, beyond the specific number, it is clear that Mexico suffers severely in each of the factors evaluated. In reality, it is not necessary to conduct such a detailed evaluation to be able to conclude that there are problems with control of governmental activity, that administration of justice is poor or that insecurity and corruption are flagrant: it is noteworthy that the sole factor in which Mexico obtains an evaluation significantly superior to the remainder of these is in matters of governmental transparency, a theme to which the country has devoted significant efforts and resources in recent years.

Beyond the details, what this indicator tells us, even confirms for us, is that the country is attempting to get into the big leagues (as illustrated by the pretension of attracting first-world investors to the energy sector) but it lacks the legal and institutional infrastructure required to do so. This reality generates for us a very clear tessitura: Shall we bow out because we don’t have what’s required or shall we take up the challenge and devote ourselves, society and government, to outdistancing and triumphing over it?