Social Norms, Rule of Law, and Gender Reality[1]
Katharina Pistor
Antara Haldar
Amrit Amirapu
First Draft, May 2008
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Abstract:
Numerous empirical studies have shown that the “Rule of Law” is positively associated with a range of desirable outcome variables, including GDP levels, financial market development, the rate of investment as well as the volume of trade, human rights, and even with declines in child mortality, to name a few. In this paper we confront the puzzle that for all but the richest countries the same positive association does not hold for the status of women in societyy . Using country level data, we show that the status of women in society is only relatively weakly associated with various Rule of Law indices, and that in poor countries thise association disappears altogether. Similarly, in high-income countries we find a high the correlation between gender equality and indicators for the rule of law. By contrast, for low(er)-income countries there is no such correlation. Household level data also suggest that values indexing the status of women in society is not closely aligned with confidence in the justice system, or similar indicators that capture conventional measures for the rule of law. We advance two hypotheses to explain this puzzle.First,We seek to explain this puzzle. One explanation for which we find some empirical support is that the status of women in society is determined primarily by social norms about gender equality and that these norms are only weakly affected by legal institutions. propose that the status of women is determined primarily by social, not legal, norms. We find evidence for this hypothesis using household survey data on social values capturing perceptions about gender equality. These findings prompt us to reconsider the relationship between rule of law, social norms, and economic developments. They also lead us to question ask how the Rule of Law as well as social norms areis conceptualized inby available indices and how this conceptualization may affect our results. Finally, we use existing case studies to analyze the impact of institutional interventions on gender relations at the micro-level and seek to draw lessons from this for future research.And second, policy interventions that focus on the Rule of Law put institutional neutrality over and above policy outcomes. The implicit assumption is that independent courts and fair procedures will eventually promote the desired social goods. Yet, this approach ignores existing power relations, which may be re-enforced rather than reduced when new institutional mechanisms are introduced to which de facto access is limited. These findings prompt us to reconsider the conventional approach to rule of law reforms also in the context of deep-rooted, or structural problems, including, but not limited ot gender inequality.
Introduction
The present study is part of the “World Justice Project” sponsored by the American Bar Foundation, whichn that seeks to gain a better understanding of how the rule of law can help improve the plight of people around the world. The project follows on the heels of theamajor International Rule of Law Symposium which convened in Washington, D.C. in 20065, which proposed the manifold ways in which law can improve social, economic, and political conditions.[2] The Symposium put togetherfeatured panels not only for the “usual suspects” in any discussion of the virtues of the rule of laww debate, such as , including the examples set by the rule of law and economic development, or the rule of law and business and, the rule of law and the fight against corruption, etc., but also on,among others, the rule of law and poverty, and the rule of law and the status of women in societyand gender.[3]
This paper follows the symposium in its attempt to broaden the debate about the rule of law and its contribution to socioeconomic development. It does so by investigating the relation between the rule of law and the status of women in society. If the rule of law has the universal appeal and socioeconomic impactetusoften typically associated with it, we should find that improvementsthat high levels of in the rule of law should also go hand in hand with improvements in thea high status of women in society. Yet,; however in this paper we show that this simple correlation does not hold, at least not for most countries of the world. Indeed, were we to weigh countries by population we would have to conclude that as far asfor 85 percent of all womenwomen worldwide theare concerned, rule of law is not a significant determinant of their status in society.
This study stands in contrast to numerous empirical papers that have shown the importance of the rule of law for a range of desirable social outcomes, ranging from GDP levels over financial market development, all the way to human rights and child mortality. The importance of the “Rule of Law” for economic development was first documented by Knack and Keefer (Knack and Keefer 1994){Knack, 1994 #283} as well as Mauro (Mauro 1995){Mauro, 1995 #332}. These early studies relied heavily on single surveys primarily of foreign investors in markets around the world and their perception of the rule of law in host countries they were investing in.[4] Over the past 15 years survey techniques have radically improved and so has the construction of indices. The most comprehensive index related to the rule of law currently available is the World Bank’s governance indicator, also referred to as “Worldwide Governance Indicator”,(or WGI) (Kaufmann, Kraay, and Mastruzzi 2007)” {Kaufmann, 2007 #2824}.,which It includes several sub-components, such as the “Rule of Law””, or as well as “ and “Governmentance Effectiveness”. The index is based on surveys, but most, importantly, serves to combines the results from a variety of different sources. By averaging information from multiple data sources, the WGI seeks to mitigate idiosynchhracies of individual survey instruments and enhance their informational contents contained therein.
The WGI hasve been widely used in the literature to assert the importance of the Rule of Law. [SUMMARY TBA]. The WGI project as well as the literature based on these indicators has also found their share of criticss [SUMMARY TBA].
Given the inherent problems of perception Using survey instruments to measure the quality of institutions is not without problems. Sampling issues loom large. Sand so do concerns about how familiar respondents are with the institutions they are queried about, and what the implicit benchmark is they arethey might be using when they ranking the institutions of a particular country on a scale. To avoid these problems, data, someotherstudies indices have sought to measure the rule of law in a more objective fashion. The most comprehensive index based on close readings of constitutions and legal statutes is the “Political Constraints Index” (PolCon) developed by Witold Henisz (Henisz 2000){Henisz, 2000 #1103}.[5]Its primary purposeThe primary purpose of the PolCon index is to record the number of institutionalized vetoes in a given political system. This is probably the cleanest measure of the “thin” version of the rule of law that focuses on due process rather than substantive outcomes {Trebilcock and Daniels, 2008}. We therefore include this index in our analysis.
In our analysis we use both indices (and sometimes different versions of thema number of versions of both indexes;). iInterestingly, the two indices seem to capture different aspects of the rule of law indicated by the relatively low correlation coefficients between the two indices (see Table 1)
[INSERT TABLE 1 HERE]
In contrast to many existing sMost studies on the rule of law are interested in the quality of rule of law at the country level. The implicit assumption is that the rule of law is a social good that benefits all. By contrast, this study focuses on one sub-group of the population and asks whether and to what extent women in society benefit from the rule of law that treat a country as the unit of analysis, our unit are people who happen to live in these countries – and in particular women, or more specifically, the status of women in society. The Rule of Law does have appeal as an end in itself. More recently, the Rule of Law has been associated with economic growth and development, which in turn has justified policy interventions seeking to build or strengthen the rule of law. The question who benefits and who loses from the Rule of Law has been asked less frequently, as it is widely assumed that the Rule of Law is akin to an indivisible social good. We question this assumption and seek to scrutinize more closely if and how women around the world are affected by the rule of law. The purpose of this paper is twofold: First, we question the notion that country level analsyis are sufficient when considering the possible impact of institutions or of policy interventions that promote particular institutional arrangements. To demonstrate the importance of looking beyond the country level and considering sub-strata of society, we focus on women and the extent to which legal reforms, including efforts to build the rule of law may, or may not enhance the status of women in society. Second, we suggest that the dominant rule of law paradigm that focuses on procedural aspects and emphasizes the neutrality of law may be in important aspiration, but is unlikely to achieve critical policy ends in the context of deep seated structural inequalities – whether along gender lines or other factors. Addressing these problems is not impossible. Indeed, legal reforms can play an important role in policy interventions to address such issues. Yet, to the extent that we can point to successful policy interventions, they require a comprehensive set of measures that go well beyond the implantation of a set of neutral institutions associated with the Rule of Law.
. As will be further discussed below, posing this question introduces existing societal power relations in society into the debate about rule of law reforms, which has been remarkably absent from most of the conventional rule of law discourse.
The analysis presented in this paper is divided into three parts. In the first partPart 1 we present the results of our data analyses showing data to document the absence of a strongly positive relation between the rule of law and the status of women in society using available databases and secondary literature that the status of women in most countries is not positively correlated with indices measuring the rule of law(below under 2). In the secondIn Part 2 we advance several explanations for the absence of the rule of law building on theories of institutions and institutional change as well as cultural theories. We test several implications of these theories with available quantitative data and use India as a case study to demonstrate in greater detail the difficulties of implementing social change in gender relations by way of legislation. part we seek to explain the absence of a strong and universal correlation between the rule of law and relevant gender indices by exploring the relation between rule of law and social norms. (3) and the conceptual and empirical relation between Rule of law indices and household attitudes (4). Finally, in part three the paper draws implications form the empirical findings and their interpretations for the ability of interventions based on the current dominant rule of law paradigm to alter the plight of other disadvantaged groups (4). Part 3 draws implications for future research policy strategies.
Part 1: Rule of Law and Gender Reality
Against the backdrop of the manynumerous empirical studies discussed in the previous section thatshowingsuggest a positive correlation between Rule of Law (ROL) or Political Constraints (PolCon) and a host of desirable outcome variables, one might expect that a similar relationship also would also holds of Rule of Law and the status of women in society. Equality between men and women, which we would define as equal access to political, economic, and social positions of power has not been achieved in any society. This, at least, is the result of a new survey instrument by the Economic Forum in Davos, which measures the gender gap in countries around the Globe. According to the 2007 Gender GAP data, Sweden, which is the highest- ranking country according to this index, scores 0.8146, where a ratio of 1.0 would indicate full equality. Thus, even in Sweden there is still a substantial gap between men and women.[6] Nonetheless, there is evidence that in many countries the status of women has improved substantially over the past decades. And it is not unreasonable to believe that legal mechanisms have played an important role in bringing about or at least supporting this change. After all,It is certainly the case that the observed change in socioeconomic status of women especially in countries of the West coincides with important legal change – including universal from suffrage, in the political system over changes in family law, to as well as legally enshrined affirmative action programs embedded in law. Yet, there is little evidence beyond these assumptions observations to show that legal change has indeed promoted greater gender equality. In fact, there are also good reasons to be skeptical about the ability of formal legal change to have an immediate impact on social outcomes. Social change tends to be a long- term process and social engineering by way of legal reform has not proved to be wildly successful of which legal change is only a part. Even in the realm of civil and commercial law transplanting legal institutions from one society has required more than simply supplying “good” institutions. Instead, the process of transplanting law, or the “demand” side of legal reform has proved to be critical for new institutions to make an imprint in the host environment (Berkowitz, Pistor, and Richard 2003){Berkowitz, 2003 #1266}(Pistor, Raiser, and Gelfer 2000){Pistor, 2000 #732}(Kraakman et al. 2004){Kanda, 2004 #2388} as most clearly evidenced by the willingness of law importing countries to invest in such institutions (Berkowitz and Clay 2003){Berkowitz, 2003 #2278}(Pistor et al. 2003){Pistor, 2003 #1857}. The assertion that the rule of law is nonetheless an important determinant for social change rests on the notion that it captures a certain mode of governing society – rule by pre-established norms and processes as opposed to political fiat or imposition of the will by the most powerful. Essentially, rule of law advocates contend, law offers recourse to individuals and groups to right wrongs and to enhance their relative position in the social fabric.
To investigate the relation between ROL and PolConthe rule of lawon one hand and the status of women on the other more systematically, we correlated analyzed the relation between existing ROLWGI sub indices (ROLand GovEFF)and as well as PolCon, indiceswith and indices that purport to measure the status of women in society. Two of these indices have been around for a while, although to our knowledge they have not been widely used in studies related to the rule of law. These are the gender related development index, or GDI, and the gender empowerment measure, or GEM, both developed under the auspices the UNDP. These are essentially subsets of the Human Development Index (HDI). Based on Amatya Sen’s seminal work on the importance of human capabilities, HDI codes three aspects of human development: “A Long and Health Life” (measured by life expectancy at birth), “Knowledge” (i.e. educational attainment captured by adult literacy rate and gross enrolment ratio), and a “Decent Standard of Living” (measured by GDP per capita).
Specifically, GDI compares how males and females score on the HDI sub-indices and on this basis constructs an “equally distributed indices” for each of these sub-indices. GEM measures more directly the political, economic and social status of women by constructing indices for “political participation and decision-making”, “economic participation and decision-making”, and “power over economic resources”. Once again, the differential between males and females is used to construct three “equally distributed equivalent percentage” (EDEP) sub-indices, which together comprise GEM. The Economic Forums’ GAP index is a variation of GDI and GEM. It measures gender gaps in outcome indicators, rather than relative levels or means and input variables,[7] and finally, it ranks countries by the gender difference, or gap, rather than the level of women’s empowerment.
Meanwhile the OECD has constructed yet another index, the Gender, Institutions and Development (, or GID), Index. Unlike GDI and GEM, it GID measures directly focuses on institutions that affect gender equality in society, including the prevailing family code, women’s physical integrity, women’s civil liberties, and women’s ownership rights.[8] Mindful of the fact that the line between formal and informal institutions is not always easy to draw the institutional constraints may not only be found in formal law, but also in social practices, most of the sub-indices measure both formal and informal institutions. Together they determine what we call “the status of women” in society. The downside of this approach for analytical purposes is that we cannot fully disentangle the respective effect of formal and informal institutions using this index. Nonetheless, the focus on institutions is particularly relevant for our study. We have therefore constructed our database for the most part aroundused the the GID index, which includes data for constructing our entire database. There are 121 countries in the GID database (see Appendix [2]).