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Article Excerpt
The rule of law can be seen as an ideological product of Western political thought, closely associated at its origin with the writings of John Locke and Baron de Montesquieu. Locke started with the idea of natural law, in which man had intrinsic rights, not just those granted by a ruler. He posited that men came together in an organized community to gain advantages they could not gain individually in a state of nature--for example, the protection of their person and property. This community was bound by a social contract that formed the basis for government. In this "contract," subjects agreed to give the ruler power only insofar as their own welfare was increased and their property protected. Montesquieu focused on methods of governance and concluded that it was essential to limit and circumscribe power so as to make it work in furtherance of the social contract rather than as an end in itself. The solution was the separation of powers; the executive, legislature, and judiciary all had an interest in checking each other to make sure none abused their power, thereby ensuring their own limited power. This principle was later taken forward by the American independence thinkers and gave rise to what is known as constitutionalism. The judiciary, in this system, would make sure that the executive rules according to the laws passed by the legislature and that the legislature cannot legislate outside the bounds of the founding document--the constitution--guarded by the judiciary. The law thus ruled.
Derived from political theory, the rule of law was always an ideal. This is reflected linguistically. European languages use the word law (droit, diritto, derecho, recht) to express both the idea of a legislated norm and the idea of a right. It is in this second sense that the "law" in the "rule of law" should be interpreted. Etat de droit, stato di diritto, estado de derecho, and Rechtsstaat refer to a state run on the higher principles of rights and justice and are opposed to a state merely administered by laws, which in German is called Gesetzesstaat.
When considering approaches to strengthen the rule of law in postconflict states, it must therefore be remembered that this concept is tightly bound with the development of a liberal democratic discourse in Western political thought. It has developed as part of a system of thought that includes the concept of natural rights--of a government controlled by the people and by checks and balances. Further, it must be remembered that the successful rooting of the rule of law in the West is a confluence of different interests and ideas applied on the body politic over time, and its application in Western countries has adopted multiple forms. In many ways, it still remains an ideal, and its application is constantly adapted and modified by new interests, ideas, and events. Note the effects that the terrorist attacks in New York and London have had on the rule of law in the United States and the United Kingdom.
Some Definitions
The rule of law is associated with certain institutional arrangements, such as a constitution that sets up a political architecture based on the separation of powers and that grants individuals certain "natural" or "human" rights. Within this architecture, the judiciary must be independent and capable of reviewing executive and legislative action. There are, however, many different variations possible on this theme. Some countries have civil law systems, others common law; some do not have a constitution (the UK), but most do; in some, judges are elected, whereas in others, they are appointed; the scope of judicial review can be limited (France); the legal profession can be self-regulating or subject to a government's control.
It has been argued, however, that focusing on institutional arrangements amounts to advocating a "thick" version of the rule of law, too tightly bound with a particular cultural context, and that it is possible to posit a "thin" version, which would emphasize the efficacy and consistency of a legal system. Such a thin version would be limited to defining the entities that can create laws and the rules used to do so. Also, the body of laws passed must fulfill certain "formal" requirements, (1) and tribunals that apply the laws must be available and impartial. The prompt and effective implementation of the legal system's decisions must be ensured. Finally, there must be a "basic institutional requirement so that official discretion can be limited by law in some significant portion of the state's activities." (2) It is argued that limited to these attributes, the rule of law can be entrenched in a variety of political arrangements. (3)
The rule of law also needs a certain cultural anchorage. According to John Rietz, "The culture which institutes the rule of law to limit both private and public power consists of a combination of beliefs that law should limit the exercise of power backed up by sufficient behavior to make it reasonable to think that law in fact does exercise such a restraining function. In this sense, it has been said that the essence of the rule of law is the belief that 'law matters and should matter.'" (4) In postmodern terms, a discourse on the rule of law must come into being. Michel Foucault's archaeology of ideas sheds some light on this process. He has argued that this discourse was made possible by a slow process that combined the application of administrative techniques (such as statistical methods and urban planning) on the body politic with norm internalization. The result is a society that knows how to discipline itself and a state that can identify and socialize (or isolate) those that do not--a "disciplined" society. (5)
Finally, a brief note on the use of the term donors in this essay: I conflate bilateral donors (whether acting through their development arm or their political arm), multilateral agencies, private foundations, and international nongovernmental organizations (NGOs) in the term donors. Although their interests and positions do not always coincide, they can be seen as part of the same "team" of foreign entities acting within a host state to further reform agendas. They certainly are often seen as such by the host state, which stands bewildered by the number of acronyms before it.
The Context and the Tools
Donors attempting to strengthen the rule of law in postconflict states face a tough and particular context. In the words of Lakhdar Brahimi, "Conflicts, more often than not, are preceded by a breakdown in the rule of law. In some cases, the conflict will take place in a country or territory where there was not much rule of law to begin with. But in all cases, the conflict may rapidly lead to a total destruction of the existing security, judicial and legal systems." (6) With such a rule of law vacuum, criminality can quickly fill the void. Rule of law activities usually begin in this environment. Basic criminal justice must be addressed; legal personnel must be identified and trained; wider legislative needs should be identified; and heavy investment in infrastructure is usually needed.
A common problem in a postconflict context is that the law will traditionally have been a tool to exercise power, used only for the benefit of the elite and inaccessible to the majority of the population. Because there can be a language barrier to access, a minimum level of education and literacy in the "official" language is usually needed. Another barrier is that legal systems tend to be urban based, while the majority of the population is...
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