Rule of law vs. law & order in Southeast Asian law

The ideas of "rule of law" and "law and order" form a conceptual pair with two different meanings, a popular meaning and a more formal well-defined and precise academic meaning.

INFORMAL MEANING

The popular meaning of "rule of law" stands as a call for reform in the face of excessive law enforcement, in a police state for instance. Since Myanmar has opened up the phrase has been widely used in diverse contexts as a call for social justice (Cheesman, 2015).

In contrast, the popular meaning of 'law and order' stands as a call for reform in the face of not enough law enforcement in a state experiencing excessive high levels of crime, especially violent crime (murder, assault, rape), crimes against property (robbery, burglary) or drug crimes (war on drugs) (see here, here, Flamm, 2005).

'Law and order' can stand for the longstanding non-democratic values in a country such as Myanmar whereas 'rule of law' opposes it as a popular call for reform (Cheesman, 2015).

"Law and order" can also stand as a popular call for reform in a democratic state experiencing a crime problem that the existing justice system is not able to handle.

Thaksin's war on drugs of 2003 and Philippine presidential candidate (and longstanding mayor of Davao, Mindanao) Duterte's death squad solution to drug dealers and corrupt police are examples of this.

These calls for "law and order" are naturally countered by those worried by the corruption and abuse of power that bypassing legal procedures or "due process" can naturally lead to.

FORMAL MEANING 

The formal academic meaning of "rule of law" captures an ideal of how law should be applied precisely and non-arbitrarily, if time, resources and economics were unlimited.

A formal meaning of "law and order" captures how swift justice is meted out to suspected law breakers with limited resources without absolute precision, bypassing time-consuming legal procedures in the interests of efficiency. Police power is typically increased, judicial discretion and the power of the courts curtailed and circumscribed and in extreme cases vigilante death squads are empowered and extrajudicial killings valorized (Mazzei, 2009)

Seen from the perspective of economics of law, the "law and order" concept seeks to minimize the number of guilty found innocent, "false negatives" in the language of statistical testing. whereas "rule of law" seeks to minimize the number of innocent found guilty (false positives) (see Polinsky & Shavell, 2007).

In summary, the twin concepts of "rule of law" and "law and order" are capable of capturing realities of everyday political rhetoric used in elections by politicians to gain votes that are not precise but do capture reality in the minds of voters.

At the same time, the twin concepts are capable of making the realities of law enforcement and criminal justice system operation precise and analyzable in an academic context.

BIBLIOGRAPHY 

Cheesman, Nick (2015) "That Signifier of Desire, the Rule of Law". Social Research: An International Quarterly. Volume 82, Number 2, Summer 2015. (get here)

Flamm, Michael W. (2005). Law and Order: Street Crime, Civil Unrest, and the Crisis of Liberalism in the 1960s. New York: Columbia University Press. (see review here).

Mazzei, Julei (2009) Death Squads or Self-Defense Forces? How Paramilitary Groups Emerge and Challenge Democracy in Latin America, The University of North Carolina Press

Polinsky, A. Mitchell & Steven Shavell (2007) "The Theory of Public Enforcement of Law" in Handbook of Law and Economics, 1st Edition. Polinsky & Shavell (eds.). North Holland.

(Photo credit: Wikipedia, F. W. Pomeroy's 1906 statue of Justice on the dome of the Old Bailey (Central Criminal Court) in London, England, UK)