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The Rule of Law Versus the Rule of Rights

Part of: Measuring the Rule of Law: Contestation, Politics, and Policy

Published online by Cambridge University Press:  15 October 2026

Adam Chilton  and
Mila Versteeg
Adam Chilton
Affiliation:
Dean and Howard G. Krane Professor of Law, University of Chicago Law School, Chicago, Illinois, United States.
Mila Versteeg
Affiliation:
Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia School of Law, Charlottesville, Virginia, United States.
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Extract

When writing the Ecuadorian Constitution, the drafters made a remarkable choice. They defined Ecuador as a state committed to the “Rule of Rights” instead of the “Rule of Law.” To implement this idea, the drafters wrote the world’s most comprehensive bill of rights.1 Among other things, it protects the rights of lactating mothers, includes a right to locally produced nutritious food, and bestows rights directly upon mother nature (pacha mama), thus allowing constitutional rights claims to be filed on behalf of natural objects, like trees or rivers.2 Overall, the 2008 Constitution devotes no fewer than 73 articles and 10,417 words to constitutional rights, causing some commentators to describe it as “the most progressive constitution in the world.”3 For comparison, the entire U.S. Constitution is 7,591 words long.

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Essay
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AJIL Unbound , Volume 120 , 2026 , pp. 317 - 321
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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
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© The Author(s), 2026. Published by Cambridge University Press on behalf of American Society of International Law

Introduction

When writing the Ecuadorian Constitution, the drafters made a remarkable choice. They defined Ecuador as a state committed to the “Rule of Rights” instead of the “Rule of Law.” To implement this idea, the drafters wrote the world’s most comprehensive bill of rights.Footnote 1 Among other things, it protects the rights of lactating mothers, includes a right to locally produced nutritious food, and bestows rights directly upon mother nature (pacha mama), thus allowing constitutional rights claims to be filed on behalf of natural objects, like trees or rivers.Footnote 2 Overall, the 2008 Constitution devotes no fewer than 73 articles and 10,417 words to constitutional rights, causing some commentators to describe it as “the most progressive constitution in the world.”Footnote 3 For comparison, the entire U.S. Constitution is 7,591 words long.

Although Ecuador’s Constitution enumerates the most rights, it is at the vanguard of a larger trend: a remarkable proliferation of constitutional rights around the world. From the end of World War II until 2020, the average number of rights included in constitutions roughly doubled.Footnote 4 Constitutions now regularly contain civil and political rights, socioeconomic rights, environmental rights, consumer rights, and even rights for animals.Footnote 5 Many constitutions today, then, contain what Eric Posner has called a “hypertrophy” of rights.Footnote 6

Ecuador’s constitutional experience also illustrates how a hypertrophy of rights can jeopardize the rule of law. It is unclear whether the Ecuadorian constitutional drafters perceived a trade-off between the two concepts, and their choice to omit references to the rule of law may simply reflect their rejection of Western legal ideas in favor of homemade innovations.Footnote 7 Even so, some Ecuadorian commentators have since argued that the rule of rights has, in fact, come at the expense of the rule of law. These commentators have observed that the explosion of constitutional rights has made the Ecuadorian government act more arbitrarily.Footnote 8

In this short essay, we argue that the rise of the rule of rights often comes at the expense of the rule of law. The reason is simple: many rights necessarily conflict with each other and therefore increase the discretion of the executive to act arbitrarily and pick and choose which rights to focus on. Arbitrariness, in turn, is antithetical to the rule of law.Footnote 9 Put another way, if you prioritize everything in a constitution, in a sense you prioritize nothing. This gives the executive wide latitude to later choose which rights to protect, and the power to ignore other laws or practices when it is convenient to do so by arguing they are required to do so by rights. We explore this argument in the context of Ecuador, which we selected as a case study because it is the country with the largest number of constitutional rights. Future research should explore whether greater rights are associated with decreased rule of law in other contexts and when using other methods.Footnote 10

The Road to a Constitution that Enshrined the “Rule of Rights”

Why did the Ecuadorian drafters reject the rule of law in favor of the rule of rights? When the charismatic former Minister of Economy and Finance, Rafael Vicente Correa Delgado, announced his run for president of Ecuador in 2006, he claimed he would start a “citizen revolution.” Inspired by Hugo Chávez in Venezuela and Evo Morales in Bolivia, Correa’s revolution sought to disempower the political and economic elites and undo the neo-liberal policies that had previously guided economic development.Footnote 11 Yet he added a unique idea to the standard left-wing populist message: the citizen revolution would establish a new way of living based on the Indigenous concept of sumak kawsay (in English: good living).Footnote 12 Correa incorporated Indigenous ideas into his campaign to appeal to the Indigenous movement, which exercised significant political influence. As his campaign platform announced, the citizen revolution would ensure that “the common interest takes precedence over individual interests, and citizens’ rights to a good life are guaranteed,” which required “harmony with nature.”Footnote 13

After his victory, Correa vowed to seal the citizen revolution with a new constitution. Correa was able to steamroll the opposition by dismantling Congress and the Constitutional Tribunal. These tactics ensured a constituent assembly that would faithfully implement his revolutionary agenda.Footnote 14 As one Indigenous assembly member, Carlos Pilamunga, explained: “Western development is concerned only with politics and economics,” while the constituent assembly is concerned with “cultural elements, plurinationality, and the environment.”Footnote 15

It was against this backdrop that the Ecuadorian drafters made the choice not to define Ecuador as a state under the rule of law, or estado de derecho, as is common in constitutions, but rather as a state governed by the rule of rights, or estado de derechos.Footnote 16 While rule of law is arguably the most famous legal idea in modern history, the term “rule of rights” is largely unknown.

Why did the Ecuadorian drafters feel compelled to focus on rights? It appears to reflect the drafters’ ambition to transform society in line with the principle of sumak kawsay.Footnote 17 To be sure, the drafters also overhauled the system of government. But they ultimately wanted the Constitution to help bring about a new, and better, way of living. A tool for doing so was constitutional rights. By turning values associated with sumac kawsay into rights, they handed future governments a transformative mandate to bring this vision to life, and they also ensured that this mandate would enjoy priority over any alternative visions future lawmakers may have.

But transforming society in this way also required citizens to do their part. To reflect this sentiment, the drafters included a long list of duties that placed constitutional obligations directly on private citizens, such as the duty to “not be lazy, not lie, not steal” or the duty to “promote public welfare and give precedence to general interests over individual interests, in line with the good way of living.”Footnote 18 In total, the Ecuadorian Constitution imposed twenty duties on citizens.

Why the Rule of Rights Can Hurt the Rule of Law

The drafters’ desire to radically transform society with rights and duties does not explain the omission of the standard reference to the “rule of law” from the constitution. But this omission does raise the question: are the rule of law and the rule of rights in tension?

To start, when constitutions contain many rights, priorities still need to be set among them.Footnote 19 Free universal education, healthcare, and social security require time and resources on the part of the government. And in a world of resource constraints, they cannot always be realized at once. Additionally, the rights enumerated in a constitution will inevitably clash with each other. Property rights may hamper efforts to reduce economic inequality. The free speech rights of some might harm the dignity of others. Freedom of religion could come at the expense of gender equality. Put differently, when constitution-makers enumerate a small set of rights, they may be setting priorities. But when they turn many things into a right, then priority-setting has to happen after constitutional adoption.

These conflicts proliferate when duties are added to the mix.Footnote 20 Constitutional duties have the status of higher law, and they are thus supposed to enjoy priority.Footnote 21 And in many cases, duties directly contradict rights, thus raising questions about whether they can be used to restrict rights. For example, if the constitution requires citizens to be “loyal,” does that limit what they are allowed to say about their country? Or consider the example of India, whose constitution contains both the freedom of expression and the duty to respect national symbols. This duty has been interpreted as a requirement to stand for the national anthem whenever it is played. Indeed, when in August 2014, a self-professed anarchist and anti-nationalist, Salman M., refused to stand for the national anthem before a movie screening, he was arrested, presumably because the duty to respect the anthem was more important than his right to express his opinion.Footnote 22 When duties enjoy equal status to rights, then, they add to the competition between values.

These two consequences of having more rights and duties—the need to set priorities and inevitable clashes—can lead to the erosion of the rule of law. Both of these realities give the executive additional discretion to decide which rights, if any, to prioritize. By doing so, the government might be able to ignore existing legal constraints or act in ways that vary from setting to setting, while invoking the constitution for doing so. To be sure, the rule of law does not have a single meaning. But at a minimum, it compels the government not to act arbitrarily.Footnote 23 In fact, non-arbitrary governance and respect for rights are twin goals for most democratic governments. Some commentators even view rights as part and parcel of the rule of law: the government’s adherence to the law does not mean much when the law does not protect fundamental rights (or so the thinking goes).Footnote 24

Rule of Rights Versus Rule of Law in Ecuador

With these arguments in mind, we can turn back to our Ecuadorian example. The 2008 Constitution includes both a commitment to provide basic necessities to the poor as well as protections for the environment and Indigenous rights.Footnote 25 One issue that brings these rights into direct conflict is the extraction of oil.Footnote 26 If the environment is prioritized, then oil drilling should be severely limited, especially in important nature reserves. Likewise, if Indigenous rights enjoy priority, there should not be oil extraction on Indigenous lands. But if the economic welfare of the nation is prioritized, then oil revenues can help lift people out of poverty. The Constitution, on its face, does not resolve this conflict.

Correa was thus able to pick and choose from these competing obligations. In Correa’s Yasuní-ITT Initiative, which made global headlines,Footnote 27 he proposed a perpetual suspension of oil extraction from a significant portion of the Yasuní National Park in the Ecuadorian Amazon. However, he made this commitment dependent on funding by the international community. More specifically, he promised that Ecuador would not extract oil in exchange for 3.5 billion dollars in funding from the international community over thirteen years, which amounted to about half of what Ecuador would have earned from oil extraction.Footnote 28 Many applauded this initiative for prioritizing the environment and Indigenous rights. The initiative was also portrayed as the constitutional principle of sumak kawsay in action.Footnote 29

But the initiative did not last long. When international contributions to the initiative were much lower than expected, Correa radically shifted course to permit oil drilling. To justify this move, he invoked sumak kawsay Footnote 30 —but this time, his emphasis was on social rights rather than environmental and Indigenous rights.Footnote 31 Specifically, Correa argued that “the greatest violation of human rights is poverty, and the greatest mistake is to subordinate those human rights to the supposed rights of nature.”Footnote 32 He further argued that poverty itself harms nature, claiming that “[h]uman beings are part of nature, and poverty also harms the Pachamama [Mother Earth].”Footnote 33 Under this reinterpretation, poverty was portrayed as a threat to the environment, thus justifying oil extraction in Yasuní.

The Yasuní Initiative was not the only example of Correa using rights to serve his agenda: his tenure is full of them. Another high-profile example is his controversial Organic Law on Communication, passed in 2013, which mostly served to restrict free speech. Correa had long criticized “media dictatorship,” and with this law he sought to control the media.Footnote 34 Among other things, the law criminalized “media lynching,” that is, the media using its power to discredit politicians like Correa. Further, it forced media outlets to cover all matters of “public interest” and to be “precise.” It established a sanctioning body—the “Superintendency of Information and Communication”—to enforce these requirements.Footnote 35

Correa liberally invoked the Constitution as a justification for the law. To start, the Ecuadorian Constitution itself portrays the principle of sumak kawsay as requiring “free, intercultural, inclusive, and diverse communication for all” and “media plurality,” which gave Correa the ability to invoke good living as a reason for regulating the media.Footnote 36 Also notable is that Article 18 of the Constitution grants citizens a right to “seek, receive, produce, and disseminate” information “without prior censorship.” It would be reasonable to think that the prohibition of “prior censorship” means that the government cannot censor the media, but both Correa and the Organic Law stated that the media itself engaged in such censorship when it failed to cover matters of public interest. When a coalition of opposition parties and newspapers asked the Constitutional Court to review the law, the Court sided with Correa by citing the principle of sumak kawsay. Footnote 37

These events show how the conflicting rights priorities in the Ecuadorian Constitution were unilaterally resolved by a powerful president. As the Ecuadorian scholar Daniela Salazar puts it, the hypertrophy of rights and duties “has opened up infinite spaces of discretion,” such that public authorities “are no longer subject to the Constitution and the law and therefore are not limited or bound by them.”Footnote 38 The rule of rights, then, can contradict the rule of law.

References

1 Rodrigo Uprimny, The Recent Transformation of Constitutional Law in Latin America Trends and Challenges , 89 Tex. L. Rev. 1587, 1591 (2011).

2 Constitucin Poltica de la Repblica del Ecuador, Oct. 20, 2008. See also Erin Daley, The Ecuadorian Exemplar: The First Ever Vindications of Constitutional Rights of Nature , 21 Rev. Eur. Community & Intl Envtl. L. 63 (2012).

3 Clare Kendall, A New Law of Nature , Guardian (Sept. 24, 2008).

4 Adam Chilton & Mila Versteeg, How Constitutional Rights Matter (2020).

5 David S. Law & Mila Versteeg, The Evolution and Ideology of Global Constitutionalism , 99 Cal. L. Rev. 1163, 119497 (2011); see also Benedikt Goderis & Mila Versteeg, The Diffusion of Constitutional Rights , 39 Intl Rev. L. & Econ. 1, 5 (2014).

6 Eric A. Posner, The Twilight of Human Rights Law 8694 (2014).

7 Some commentators have argued that this omission was intentional, reflecting a shift from a system where power is subject to law to one where power is subject to rights. See vila Santamara, El neoconstitucionalismo transformador: El estado y el derecho en la Constitucin de 2008 12122 (2011).

8 Daniela Salazar, Mi poder en la Constitucin: La perversin del estado de derecho en Ecuador, in La desigualdad 235, 233, 240-41 (Lus Roberto Barroso et al. eds., 2016) (citing various theorists who have made the same points).

9 For definitions of the rule of law, see Tom Ginsburg, Thoughts on Measuring the Rule of Law , 120 AJIL Unbound 300 (2026); Kim Lane Scheppele, Reactive Measures: Lessons from the Field , 120 AJIL Unbound 321 (2026).

10 See, e.g., Daniel Abebe, Adam Chilton & Tom Ginsburg, The Social Science Approach to International Law , 22 Chi. J. Intl L. 1 (2021); Janka Deli, Katerina Linos, & Mark Pollack, Interviews as a Method for Rule of Law Measurement , 120 AJIL Unbound 339 (2026).

11 For further reading on Correas rise to power, see Hugo Goeury, Rafael Correas Decade in Power (20072017) , 48 Lat. Am. Persp. 206 (2021); Catherine M. Conaghan, Ecuador: Correas Plebiscitary Presidency , 19 J. Democracy 50 (2008).

12 See Antonio Luis Hidalgo-Capitn & Ana Patricia Cubillo-Guevara, Seis debates abiertos sobre el sumak kawsay , 48 conos 26 (2014).

13 Alianza PAIS, Plan de Gobierno de Alianza Pas 20072011 4 (2006).

14 Salazar, supra note 8, at 23536.

15 Marc Becker, Correa, Indigenous Movements, and the Writing of a New Constitution in Ecuador , 38 Lat. Am. Persp. 50 (2011).

16 Salazar, supra note 8, at 240.

17 Santiago Garca lvarez, Sumak kawsay o buen vivir como alternativa al desarrollo en Ecuador: Aplicacin y resultados en el gobierno de Rafael Correa (20072014) 60-61 (2016).

18 Constitution of the Republic of Ecuador (2008), Art. 83.

19 Chilton & Versteeg , supra note 4.

20 Mila Versteeg, Adam Chilton, & Erensu Altan, Constitutional Duties , 72 Am. J. Comp. L. 685 (2024).

21 Even if in some systems, like India, they are made non-justiciable, courts still use them to interpret and limit rights obligations. But in many systems, they are simply placed on equal footing as rights, without qualifications on their status.

22 Salman v. State of Kerala, Crl. M.C., No. 5922 of 2014 (H.C. Ker. Dec. 18, 2014) (India).

23 Jeremy Waldron, Rule of Law , Stanford Encyclopedia Phil. (June 22, 2016) (The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences or ideology.).

24 Ronald Dworkin, A Matter of Principle (1985).

25 Constitution of the Republic of Ecuador (2008), supra note 18, Art. 12 (water); Art. 13 (food); Arts. 2629 (education); Art. 30 (housing); Art. 32 (health); Art. 34 (social security); Arts. 7174 (rights of nature); Arts. 5660 (Indigenous rights).

26 Patricio Hernndez Rentera, La Iniciativa Yasun-ITT: Una oscura leccin sobre etica y desarrollo , 7 Revista de la Facultad de Jurisprudencia 212 (2020).

27 Daniel Gordon, Ecuador Seeks Oil Compensation, BBC (Sept. 21, 2007).

28 See Soledad Stoessel & Martn Scarpacci, Disputas en torno al desarrollo y el territorio: El Caso de Yasun-ITT durante el Ecuador de la Revolucin Ciudadana , 45 Territorios 239 (2021); Norman Wray Reyes & Jacob Hamburger, The Constituent Process in Ecuador , in Constitution Makers on Constitution Making: New Cases 123 (Tom Ginsburg & Sumit Bisarya eds., 2022).

29 Goeury, supra note 11, at 211.

30 Rafael Correa Delgado, Anuncio a la nacin: Iniciativa Yasun ITT 5 (Aug. 15, 2013).

31 In Correas words, We need our natural resources to overcome poverty as quickly as possible. Id. at 16.

32 Id . at 1617.

33 Id . at 17.

34 Abner Barrera Rivera, La libertad de prensa en el pensamiento de Rafael Correa , 28 Reportorio Americano 169 (2018).

35 For details on the law, see Luis Fernando Torres, Complaint, Constitutional Court of Ecuador (July 1, 2013).

36 Constitution of the Republic of Ecuador (2008), supra note 18, Title II.

37 Constitutional Court of Ecuador, N 003-14-SIN-CC, at 205 (Sept. 17, 2014). For more on how court rulings can be a measure of the rule of law, see Diego A. Zambrano, Measuring the Rule of Law: How Often Do Governments Lose Important Cases? , 120 AJIL Unbound 327 (2026).

38 Salazar, supra note 8, at 241.