The Expansion of Rule of Law as an Applied Concept
As we meet in 2018, it is nearly thirty years since the fall of the Berlin Wall in 1989; seventeen years have passed since the terrorist attacks in the United States of September 11, 2001; and it is nearly fifteen years since the United Nations promulgated its definition of rule of law in 2004.1
Contemporary rule of law projects have evolved within this period to be ambitious: they aim to do much more than improve the legislative framework or strengthen the judiciary or support efficient civil and criminal procedure in developing economies. Rule of law interventions extend from constitution drafting and election monitoring through to “access to justice,” “legal empowerment,” “efficient commercial law,” “security sector reform,” “international peacekeeping,” “international policing,” “transitional justice,” and applying the laws of armed conflict in peacekeeping settings.
An example of this extension is the way in which rule of law interventions now intersect with criminal justice, security and surveillance and punishment systems. Increasingly, rule of law assistance includes support to the target country's law enforcement and counterterrorism agencies and has as its goal combatting violent extremism, countering narcotics, and detecting and preventing corruption. This leads to some normative tensions. When Australia offers law and justice assistance to Indonesia, for example, there is a real risk that the interception of drug smuggling will result in outcomes that are inconsistent with our domestic law (such as Indonesia's death penalty for drug offenses). Disruption of trafficking in asylum seekers also leads us to breach our international law obligations (such as resettlement, rather than indefinite detention of asylum seekers).
Martin Krygier observes that freighting the idea of rule of law with the obligation to deliver security, human rights, social equity, and market efficiency—as well as the institutions to deliver these—has diminished our understanding of the conditions under which the rule of law flourishes and obscures its fundamental purpose, which, he argues, is to curb the exercise of arbitrary power by both state and non-state actors.2
This leads us to the first dilemma, which is the temptation to invoke the rule of law to cover every policy intervention that touches justice and security systems and in the process of doing so, guarantee substantive overreach.
The Regulatory Dimensions of Rule of Law
Rule of law assistance is both regulatory and transnational. It is regulatory because the declared goals of rule of law assistance (regardless of whether the form is diplomacy, military activity, official development assistance, humanitarian aid, or private sector investment) are to change the nature and quality of legal institutions, processes and norms in the host (or target) state. It is also transnational—much of the work of rule of law assistance sits “somewhere beyond the reach of the host nation-state and below the legal regime of international law and the authority of international organizations.”3
A recent example of this was the first use by European Union of its “pre-Article 7” warning procedure for assessing where there has been “a systematic breakdown in rule of law” within a member state of the kind that would trigger the suspension of EU voting rights under Article 7 of the 2007 Treaty of Lisbon.4 Article 7(1) was triggered for the first time by the European Commission on December 20, 2017 in response to the Polish government's political interference in the judiciary. We can view Article 7 as a rule of law compliance standard, promulgated by the European Union. The actual use of the procedure is symbolically significant because Poland was, for a time, considered to be the outstanding rule of law success story within post 1989 Eastern Europe.
It is one thing, of course, for the European Union to sanction Poland, and quite another to think about whether and how rule of law standards can be articulated, entrenched, and enforced globally—and by whom. This leads to a second dilemma: the risk of regulatory incapacity. States no longer have a regulatory monopoly; in rule of law assistance the power to create norms and tools of compliance is distributed among multilateral institutions, including donors, NGOs, and civil society. The use of indicators to measure rule of law alignment is one example.5 However, who seeks to regulate overreach when the declared regulatory goal cannot be reached (through lack of capacity or resourcing or poor design or because there is no realistic prospect of enforcing it)? This also begs the question of what, substantively, is being valued and assessed.
Liberal Democratic and Technical Legal Worldviews Under Challenge
The post-1989 investment in rule of law globally has not resulted in an uptake of liberal democracy. Instead, we see the marked rise of the authoritarian state, both as a site for rule of law assistance delivery and as a source of legal reform.
The Rise of the Authoritarian State
In some cases, this has led to what some scholars have termed “managed rule of law,” where in settings such as Central Asia and Ukraine the donor focus is on making public administration function and reducing corruption, rather than on promoting human rights. Stable, responsive public administration is in itself a worthy goal: we observe rule of law stability being displaced by populist leaders who seek to dismantle the independent regulatory capacity of the state. The recent moves by President Duterte in the Philippines to defund the Human Rights Commission there and the clear attempt by President Trump in the United States to emasculate the Environmental Protection Agency are examples of this.
The Entrenchment of Non-Western ROL Assistance Providers
What most sites of rule of law interventions do have in common is legal hybridity and the power of customary and religious legal systems. In attempting to create a globalized rule of law, we have not been attentive to this empirical reality. At the same time, the financiers and the implementers of rule of law assistance (however labelled) are increasingly non-Western and non-liberal. This parallels Carothers and Samet-Marram's6 observation about the “global marketplace of political change” in which democracy promotion competes. I have described this as a symbolic and a material marketplace crowded with different rule of law promoters,7 which now include China and Saudi Arabia. Even among established donors, we see divergence of aims, leading what Nicholson and Kuong point to as an “East Asian model” of rule of law assistance.8
Why does this matter? Contests about rule of law norms are consequential. Taking one such site—Mindanao in the southern Philippines—we see a region where there will be a new political settlement about regional autonomy. That will trigger the creation of an autonomous regional legal system, which will be Islamic. If a newly created Bangsamoro region adopts comprehensive shari'a, which seems likely, it matters a great deal where the animating justice norms are drawn from: Saudi Arabia, Malaysia, or Indonesia. Influence from one of these “source” systems could have very different effects on the population and on the coherence and stability of the Philippines.
This leads to dilemma number three: how to present rule of law norms while navigating non-Western, authoritarian landscapes and competing with non-Western promoters of divergent rule of law norms. Anthea Roberts's new book, Is International Law International? (Oxford University Press, 2018), prompts a related question: is rule of law international?
A New Focus on the Practice of Rule of Law
The preceding dilemmas implicate a fourth issue, which is who designs and delivers the policy interventions that are intended to shape rule of law reforms in target states? We now have a permanent diversification of such reform actors: rule of law assistance is not delivered exclusively through civilian development assistance programs or agencies, but also through and by defense forces, police forces, and the private sector. This is partly the result of some donor agencies embracing new public management and outsourcing, but has also been driven by the expanded geographic and substantive footprints of the work. These implementing actors have very different animating politics, ideologies, and organizational capacities.
The Turn to Empirical Studies of Intermediation
These changes have stimulated a new sub-field of scholarship in law, political science, anthropology, and international relations that looks at the people and the processes influencing rule of law assistance delivery.9 What those empirical studies of rule of law assistance have shown thus far is that rule of law does not make itself: the translation of rule of law norms from the transnational to the local level is the work of individual and organizational “brokers” and “translators.”10 Both practitioners and their intermediaries shape regulatory outcomes locally by leveraging their technical knowledge, prestige, and professional capital. Lawyers feature prominently in rule of law's international, transnational and local spaces, even though the work itself is varied and distributed across many different occupational groups.
This new scholarship suggests that donors construct rule of law interventions as technical; but local actors see them as political and moral. The application of technology and technocratic tools to rule of law assistance often deepens this gulf in understanding and cooperation. This includes styles of physically organizing the workplace, public announcements of “results,” narratives about “lessons learned” and formal monitoring and evaluation.
As I have argued elsewhere, rule of law is a business—and a big business.11 Rule of law practice, like legal practice, declares allegiance to altruistic aims (poverty reduction, human rights, access to justice)12 and pursues these in tandem with strategies to secure market share and profitability.13 Relative to the energy and resources expended on producing rule of law interventions in the host country, however, there has been a relative lack of attention to the institutional capacities of donors and multilaterals. So, while we may argue that rule of law is regulatory, its practitioners and their sponsoring agencies are lightly regulated, and in some cases, underprepared for the complexity of their work.
One consequence of this is that donors are often heavily dependent on intermediaries, with one effect being that the rule of law normative message is often lost in translation. The programs actually delivered are not infrequently substantially different from those intended (a phenomenon well understood in anthropology of development).
This leads us to dilemma number four: rule of law practitioners and their sponsoring organizations largely float beyond national regulatory reach. There is visible slippage between practitioners’ invocation of rule of law norms, and their failure to embody these in practice, and this is one of the ways in which rule of law's claim to legitimacy may be diminished. This in turn takes us back to dilemmas one and two, above.
None of the dilemmas described here are amenable to quick resolution. The sponsoring agencies of global rule of law assistance include the United Nations and bilateral donors who are all committed to this mode of policymaking and projection of soft power and the distribution chain of intermediaries, who benefit economically from this style of financial transfer. What I have attempted to do in these remarks is to sketch some of the ideological self-contradictions of rule of law assistance as a practice and some of the pressures that the current paradigms of practice are encountering and will need to respond to more systematically in the future.