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societies. But before we do, we must ¬rst address the most fundamental
question of all: what does it mean to build “the rule of law”? This vital and
dif¬cult question is addressed in Chapter 3.
CHAPTER THREE




What Is the Rule of Law?: A Pragmatic
De¬nition and a Synergistic Approach




I. THE RULE OF LAW: “I KNOW IT WHEN I SEE IT”?

The late Potter Stewart, a justice on the U.S. Supreme Court, once famously
remarked that there was no need for the court to de¬ne the term obscenity:
when it came to obscenity, Stewart said, “I know it when I see it.” For many
people, the phrase the rule of law often seems to have a similar quality.
In its colloquial sense, the phrase the rule of law implies a rather vague
cluster of concepts: fairness, justice, predictability, equality under law. When
we think of the rule of law, we may think of the phrase ¬rst made famous
by Aristotle and often cited by the founders of the American republic: the
rule of law involves a “government of laws, not men.” More concretely,
we may think of the rule of law as having something to do with certain
kinds of institutions and structures: well-functioning, respected courts, judi-
cial review, fair and adequate legal codes, well-trained lawyers, and so on.
To some extent, we may also equate the rule of law with respect for basic
civil and political rights.
For the most part, even those of us who work on rule of law issues would
be hard pressed to go beyond these intuitions and offer a precise de¬nition
of the rule of law. Yet like Justice Stewart, we are nonetheless pretty sure that
we know it when we see it. Thus, we would likely say con¬dently that the
United States is a nation under the rule of law; so is Sweden, so is Botswana,
so is Japan, and so are most stable, prosperous democratic nations, despite
their varying legal systems and despite occasional problems. However, most
people would not hesitate to say that postwar Iraq is still quite lacking when
it comes to the rule of law, as are Liberia, North Korea, and Afghanistan.
In the foreign policy world, most policymakers and practitioners take
it for granted that the rule of law is something everyone needs in post-
con¬‚ict and post-intervention societies, something that is clearly worth pur-
suing through a variety of more and less coercive projects “ even in the
absence of a precise and agreed-on de¬nition. Indeed, as observers such as the
56
57
WHAT IS THE RULE OF LAW?


Carnegie Endowment for International Peace™s Tom Carothers have noted,
“the rule of law” has become something of a foreign policy mantra over the
past decade.
Perhaps precisely because of its elusive de¬nition, the importance of the
rule of law is something everyone can agree on, from World Bank experts and
human rights activists to military of¬cials. From the president of the United
States to the UN Secretary-General, from U.S. Defense Secretary Donald
Rumsfeld to the habitu´ s of Davos, policymakers and pundits insist that cre-
e
ating the rule of law must be a top international priority in post-intervention
societies. As President George W. Bush put it in his 2002 State of the Union
speech, the rule of law is one of the “non-negotiable demands of human dig-
nity,” for which “America will always stand ¬rm.”1 In his 2005 inaugural
speech, President Bush emphasized that that “freedom” must be “sustained
by the rule of law. . . .”2
This chapter suggests, however, that the idea of the rule of law is not nearly
as simple as many people would like to assume. The notion that the rule of
law has an “I know it when I see it” quality captures something powerful,
because we do know it when we see it, and we most certainly know it when
we don™t see it.
But as a guide to making intelligent policy decisions, “I know it when I
see it” is not terribly effective. Indeed, na¨ve and super¬cial understandings
±
of the rule of law can lead to foreign policy embarrassments, as the United
States and the international community become embroiled in projects that
are ultimately self-undermining.
In truth, the rule of law is a complex, fragile, and to some extent inher-
ently unrealizable goal. Nonetheless, projects that are self-conscious about
the nuances and paradoxes of the rule of law are much more likely to be
successful than projects that rely entirely on the old “I know it when I see
it” standard.
This chapter outlines some of the ways in which the concept of the rule of
law is deployed by various actors in the foreign policy debate, from human
rights advocates to economic policy analysts to national security experts. It
then brie¬‚y describes and takes stock of the recent history of rule of law-
promotion efforts in troubled societies.
Taking a step back, this chapter then explores some of the efforts scholars
and policy analysts have made to de¬ne the elusive idea of the rule of law,
and suggests some reasons for the disappointing outcomes of past rule of
law-promotion efforts.
Finally, this chapter proposes a pragmatic de¬nition of the rule of law
to help guide future discussions and suggests that policymakers adopt what

1 President George W. Bush, State of the Union Address, January 29, 2002.
2 President George W. Bush, Inaugural Address, January 20, 2005.
58 CAN MIGHT MAKE RIGHTS?


we term the synergistic approach to the rule of law “ an approach that
emphasizes the degree to which the rule of law involves numerous moving
but interlocking parts, each of which is indispensable, and each of which
helps make the rule of law far more than just the sum of its parts.


II. BACKGROUND: RULE OF LAW PROMOTION: A GROWTH INDUSTRY

The past decade has seen a surge in American and international efforts to
promote the rule of law around the globe, especially in post-intervention and
“transitional” societies. As Tom Carothers remarked in a provocative 1998
Foreign Affairs article, “One cannot get through a foreign policy debate these
days without someone proposing the rule of law as a solution to the world™s
troubles.”3 Nearly a decade later, this remains true. Like apple pie and ice
cream, the rule of law is a concept no one can dislike, and even institutional
actors who normally ¬nd little common ground generally agree on the value
of the rule of law.
The World Bank and multinational corporations want the rule of law,
because the sanctity of private property and the enforcement of contracts
are critical to modern conceptions of the free market. One former World
Bank economist notes wryly that “it sometimes seems like the phrases ˜cap-
italism™ and ˜the rule of law™ go together ˜like the phrases love and mar-
riage.™”4 Another commentator observes that the “conventional wisdom in
the international development community” is that “a crucial, if not deci-
sive, factor in enticing investment is a stable, consistent, fair and transparent
legal system”;5 still another asserts that “simply put, formal law is the foun-
dation of the market system, essential to the development of corporations,
limited liability contracts and an adequate business environment.”6 Most
in the economic development and corporate communities assume that the
rule of law entails or produces sensible, intelligible regulations, effective
3 Thomas Carothers, The Rule of Law Revival, 77 Foreign Affairs 95 (March/April 1998).
Cf. Paul Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (1999):
“When we look . . . at recent developments in Eastern Europe and Latin America, we speak
of the progressive transition from dictatorial systems to the rule of law. We measure their
progress “ or lack of it “ against our end. When we observe third world countries, we see
the absence of law™s rule as a pathological condition. We have a missionary zeal, believing
our truth to be revealed truth. . . . Not to see the end of social order as the rule of law strikes
us as unnatural.”
4 Memorandum from Ruthanne Deutsch, (Re)constructing the Rule of Law in Post-Con¬‚ict
Societies (2002; on ¬le with authors).
5 John Hewko, Foreign Direct Investment: Does the Rule of Law Matter?, Carnegie Endow-
ment for International Peace, Rule of Law Series, Working Paper No. 26, April 2002. Hewko
is skeptical of the conventional wisdom, arguing that “the philosophical framework the
international development community has traditionally used to carry out its legislative and
institutional reform efforts . . . is incomplete. . . . ” Id., at 6.
6 Hernando de Soto, Preface, in the Law and Economics of Development (Edgardo
Buscaglia et al., eds., 1997), at xiv.
59
WHAT IS THE RULE OF LAW?


dispute resolution mechanisms, and a predictable, fair legal framework in
which property interests can effectively be protected. Thus, for those con-
cerned with the creation of a stable, favorable business climate and with new
investment and market opportunities, the rule of law is often conceptualized
as a necessary prerequisite.
Human rights advocates, though not typically allies of multinational cor-
porations, business interests, or international ¬nancial institutions, are simi-
larly enthusiastic about the rule of law. As Yale Law School professor Owen
Fiss has observed, the “rule of law revival we are experiencing today” can be
partly “traced to the triumph of human rights . . . there has been an increas-
ing demand for law, or, more speci¬cally, for the treatment of human rights
as justiciable claims rather than mere aspirations, and for legal institutions
that are able to enforce these claims.”7 The human rights-oriented concep-
tion of the rule of law involves, at a minimum, due process, equality before
law, and judicial checks on executive power, for most human rights advo-
cates regard these as essential prerequisites to the protection of substantive
human rights. To human rights advocates, where the rule of law is absent,
human rights violations ¬‚ourish: without the rule of law, arrests and deten-
tions are arbitrary, there is no effective mechanism for preventing torture or
extrajudicial execution; individuals or groups may be free to take the law
into their own hands in abusive and violent ways, and abuses go unpunished
in a climate of impunity. Other rights such as freedom of expression and free-
dom of conscience also cannot be realized without a protective network of
laws to sustain them. Promoting the rule of law thus seems to most human
rights advocates like a critical component of protecting fundamental human
rights.
Increasingly, international and national security experts also want to
promote the rule of law, seeing it as a key aspect of preventing terrorism.8
7 See, e.g., Owen Fiss, The Autonomy of Law, in SELA 2000, Seminario en Latinoamerica
de Teroia Constitucional y Politica: The rule of law (June 8“11, 2000), at I-26: “The
rule of law revival that we are experiencing today is not just a product of the neoliberal
development paradigm but can also be traced to the triumph of human rights. . . . It extends
throughout the world. It represents, as Michael Ignatieff has said, a revolution in human
consciousness. As part of this revolution, there has been an increasing demand for law, or,
more speci¬cally, for the treatment of human rights as justiciable claims rather than mere
aspirations, and for legal institutions that are able to enforce these claims.”
In the wake of September 11, the human rights community has redoubled its commitment
to promoting “the rule of law,” although many within the human rights community have
grown increasingly concerned by the apparent willingness of some democratic governments
to value national security concerns over strict adherence to domestic and international
legal norms. See, e.g., Lawyers Committee for Human Rights, Imbalance of Powers: How
Changes to U.S. Law and Security Since 9/11 Erode Human Rights and Civil Liberties
(2003). Security Council.
8 See, e.g., Council on Foreign Relations, Iraq: The Day After (2003). See also Robert Kaiser,
U.S. Plants Footprint in Shaky Central Asia, The Washington Post, August 27, 2002, at
A1. See also Thomas Carothers, The New Aid, The Washington Post, April 16, 2002, at
A19. See also Thomas Carothers, Promoting Democracy and Fighting Terror, 82 Foreign
60 CAN MIGHT MAKE RIGHTS?


Especially since September 11, 2001, military and intelligence analysts have
drawn attention to the ways in which the absence of the rule of law can lead
to instability and violence and create fertile recruiting grounds for terrorist
organizations. The logic here is straightforward: although the roots of ter-
rorism are complex, misery and repression create fertile ground for terrorist
recruiters. If the rule of law is necessary to economic growth and to eliminat-
ing egregious human rights abuses, then by extension the rule of law plays
a key role in eliminating the conditions that give rise to violence and terror.
Given their differing motivations and priorities, human rights advocates,
economic analysts, and those concerned primarily with national and interna-
tional security naturally differ on the proper law reform priorities for tran-
sitional societies. They quarrel over whether commercial law reform should
precede criminal law reform, whether the creation of courts to sort out prop-
erty disputes (often a major post-intervention concern) should take priority
over the creation of human rights and war crimes courts, and whether judi-
cial reform ought to come before police and military reform.
How to allocate resources inevitably causes tensions between the groups,
and since September 11, 2001, the three groups have also disagreed about
the imperatives of the “war on terror,” which many rights advocates see as
privileging short-term security concerns over longer-term commitments to
promoting human rights.9 Nonetheless, the three groups (which can overlap)
share the basic assumption that the rule of law is central to stable and modern
democratic society.10

Affairs Jan./Feb. 2003), noting that “The United States faces two contradictory imper-
atives: on the one hand, the ¬ght against al Qaeda tempts Washington to put aside its
democratic scruples and seek closer ties with autocracies throughout the Middle East and
Asia. On the other hand, U.S. of¬cials and policy experts have increasingly come to believe
that it is precisely the lack of democracy in many of these countries that helps breed Islamic
extremism.” Post-September 11 events have undeniably raised new questions about whether
even democratic cultures share a universal conception of “the rule of law” and its relative
`
importance vis-a-vis national security.
Nevertheless, rhetorical commitments to “the rule of law” also continue to be made
by numerous governmental actors. See, e.g., George W. Bush, State of the Union Address,
January 29, 2002: “America will always stand ¬rm for the non-negotiable demands of
human dignity: the rule of law; limits on the power of the state; respect for women;
private property; free speech; equal justice; and religious tolerance.” Similarly, the U.S.
Department of State puts news releases related to the treatment of Iraqi prisoners of
war and Guantanamo detainees in a section of its Web site titled, The Rule of Law. See
http://usinfo.state.gov/dhr/democracy/rule of law.html (last accessed May 10, 2003). As this
chapter discusses, the concept of “the rule of law” is amorphous and undertheorized; per-
haps for this reason, groups as otherwise disparate as free market advocates, human rights
activists, and national security hawks have all been eager to embrace the concept.
9 See, e.g., Human Rights Watch, Anti-Terror Campaign Cloaking Human Rights Abuse,
January 16, 2002, available at http://www.hrw.org/press/2002/01/wr2002.htm.
10 What™s more, despite tussles over priorities, all three groups often assume that creating the
rule of law in one sphere will have automatic positive spillover effects in the other: that is,
if a given society has functioning judicial bodies that enforce contracts fairly and protect
61
WHAT IS THE RULE OF LAW?


The widespread agreement on the importance of the rule of law has led
to a range of ambitious international projects designed to promote the rule
of law in troubled or “transitional” societies. Many of the early rule of
law promotion efforts were in Latin America, beginning in the 1970s and
1980s, as foreign donors sought to speed democratic transitions in formerly
autocratic and repressive Latin American nations.11 Foreign donors, and
particularly the U.S. Agency for International Development (USAID), poured
resources into training programs for judges, the provision of external experts
(often American law professors) to help nations “modernize” their laws, and
similar programs throughout Latin America.
The pace and funding levels of international rule of law programs
increased dramatically in the early 1990s, as the collapse of the Soviet Union
and the toppling of totalitarian regimes in other parts of the globe dramat-
ically energized rule of law assistance.12 In the wake of the Soviet Union™s
collapse, one commentator described a veritable “explosion of rule-of-law
assistance” around the world.13 In both Latin America and the former Soviet
states, the focus of rule of law programs was democratization and decentral-
ization, on the elimination of state abuses (in Latin America, anticommu-
nism had fueled numerous state abuses; in the former Soviet states, of course,
communist ideology itself fueled the abuses). Despite opposing ideologies,
similarly top-down governance styles led to arbitrariness and abuse of power
in Latin America and in the former Soviet bloc. In both cases, rule of law
promotion efforts were linked simultaneously to efforts to eliminate abusive
state policies (torture, arbitrary detention, and extrajudicial execution, for
instance) and to efforts to promote capitalism and market-oriented reforms.

property rights, that society will ultimately also protect basic civil and political rights and
vice versa. See Carothers, The Rule of Law Revival, supra note 3. There is, to our knowledge,
little empirical evidence to support this assumption, and some work that calls it into question.
See, e.g., Susan Rose-Ackerman, Political Corruption and Democracy, 14 Conn J. Int™L L.
363 (1999); see also Hewko, supra note 5.
11 See Linn Hammergren, Applying Rule of Law Lessons from Latin America, USAID
Center for Democracy and Governance, Fall 1997, available at http://www.usaid.gov/
our work/democracy and governance/publications/pdfs/ddfallwin97 ¬.pdf, for a descrip-
tion and analysis of many of these early programs. See also Linn Hammergren, Do Judicial
Councils Further Judicial Reform?: Lessons from Latin America, 28 Carnegie Endowment
for Int™l Peace (June 2002).
12 See Carothers, The Rule Of Law Revival, supra note 3.
13 Thomas Carothers, Aiding Democracy Abroad: The Learning Curve (1999), at 165. For
some similar observations, see Mark Tushnet, Returning with Interest: Observations on
Some Putative Bene¬ts of Studying Comparative Constitutional Law, 1 U. PA. J. Const. L.
325 (1998), noting “the upsurge of interest in comparative constitutional law among U.S.
constitutional scholars,” which “may be the result of the break-up of the Soviet Union, and
the rapid and widespread transformation of non-democratic regimes in proto-democratic or
democratic nation-states. A byproduct of the rapidity with which the change occurred was
the proliferation of efforts by U.S. constitutionalists to instruct people elsewhere on what a
well-designed constitution should look like.”
62 CAN MIGHT MAKE RIGHTS?


By the mid-1990s, an increasing number of “failed states,” civil wars, and
human rights crises also fueled enthusiasm for rule of law promotion efforts
as a way to rebuild shattered societies broken apart by civil wars and ethnic
con¬‚icts. Crises in Bosnia, Rwanda, Kosovo, East Timor, and Sierra Leone
led to rule of law promotion efforts designed to rebuild (or at times build
up from scratch) legal institutions, restore functioning governments, pro-
vide accountability for abuses and war crimes, and permit gradual economic
recovery.
Most recently, in Afghanistan and Iraq, U.S.-dominated military interven-
tions, though primarily motivated by national security concerns, have led to
post-intervention programs to restore the rule of law. Like earlier programs
in Latin America and the former Soviet states, these programs have focused
to a signi¬cant extent on the rewriting of constitutions and key legislation,
support to law enforcement and courts, and the provision of other forms of
structural and technical assistance.
Promoting the rule of law has been an expensive enterprise. Although we
argue, throughout this book, that many past rule of law efforts have suffered
by being underresourced relative to their actual needs, even underresourced
programs have had large price tags. Since 1990, the United States and other
bilateral and multilateral donors have spent literally billions of dollars on
“promoting the rule of law,” and those huge governmental sums have been
matched by similarly large donations from private foundations.14 Because
the “war on terrorism” has given further impetus to U.S. and international
enthusiasm for rule of law promotion, millions more have been budgeted
for rule of law programs in post-Taliban Afghanistan15 and postwar Iraq.16

14 It is impossible to offer a precise ¬gure, however, given the many nations and agencies,
public and private, involved in rule of law efforts and the de¬nitional issues (e.g., should
all democracy promotion be seen as “rule of law”?). See, e.g., Peter Baker, Funding Scarce
for Export of Democracy “ Outside Mideast, U.S. Effort Lags, The Washington Post,
March 18, 2005, at A1. “Measuring how much Washington spends on democracy pro-
motion is dif¬cult because the money is scattered among programs and much of it is
embedded in grants by the U.S. Agency for International Development. But recent trends
have been clear. USAID spending on democracy and governance programs alone shot up
from $671 million in 2002 to $1.2 billion in 2004, but almost all of that increase was
devoted to Iraq and Afghanistan. Without those two countries, the USAID democracy
spending in 2004 was $685 million, virtually unchanged from two years earlier.” See also
http://www.whitehouse.gov/omb/budget/fy2006/state.html. (In 2004, the United States pro-
vided approximately $38.5 million in FREEDOM Support Act funds to strengthen democ-
racy, human rights, and the rule of law in Central Asia, including assistance with legislative
drafting; training judges, prosecutors, and public defenders; and providing advisors for
judicial and prison reform.) See also Carothers, The Rule of Law Revival, supra note 3.
15 See, e.g., USAID: Rebuilding Afghanistan: the U.S. Commitment, available at http://www.
usaid.gov/about/afghanistan/rebuilding afghanistan.pdf (last accessed August 23, 2002).
16 See, e.g., FY06 OMB Budget Proposal, available at http://www.whitehouse.gov/omb/pdf/
Diplomacy-06.pdf. Under promoting global democracy and prosperity: $360 million in
economic assistance to help the Iraqi government deliver basic services to its people,
63
WHAT IS THE RULE OF LAW?


This book™s central concern is with an obvious and major shift in the
nature of much rule of law assistance over the course of the past decade.
Until the mid-1990s, rule of law assistance generally involved aid packages
designed to encourage governmental law reform initiatives undertaken by
indigenous authorities and to support law-related NGOs.17 In recent years,
however, with the upsurge in United Nations and NATO peacekeeping oper-
ations, and the post-September 11 military interventions by the United States,
there have been more and more situations in which the United States, UN,
and other key actors “ the European Union, the Organization for Security
and Cooperation in Europe (OSCE), etc. “ have ended up wholly or partially
administering a society in crisis.
Thus, in Kosovo, the United Nations, the European Union, the OSCE, and
NATO still collaborate to administer Kosovo under a UN umbrella, assist-
ing the ¬‚edgling Kosovar governance structure.18 In East Timor, the UN was
the central government until the elections leading to East Timor™s emergence
as an independent country, and the UN continued to play a substantial sup-
porting role in East Timor.19 In Sierra Leone, where it took thousands of UN
peacekeepers, as well as British soldiers, to help stop a brutal civil war, the
fragile indigenous government relied heavily on external interveners for over
half a decade to maintain security and help with everything from education,
health care, and food aid to legal and judicial reform.20
In Afghanistan, the Bush Administration™s early determination to resist
“nation-building” adventures collapsed in the wake of September 11; even
today, more than ¬ve years later, the new post-Taliban government survives
only with massive external support provided by the U.S.-led coalition, the
United Nations, the European Union, and dozens of international non-
governmental organizations. International experts inspect Afghan prisons,

collect revenues, and develop a free-market system capable of joining the global economy;
$120 million for the Middle East Partnership Initiative to expand democracy, support polit-
ical, economic, and social reform, and improve access to education, information, and jobs;
$80 million, an increase of $20 million over 2005 levels, for the National Endowment for
Democracy (NED) to provide grants to private groups and organizations that build and
strengthen democratic institutions and promote the rule of law, human rights, civic educa-
tion, and a free press; a $10 million contribution to the United Nations Democracy Fund
to provide technical assistance to nations adopting democratic reforms.
17 See Carothers, The Rule of Law Revival, supra note 3.
18 See S.C. Res. 1244, U.N. Doc.S/RES/1244, June 10, 1999 (establishing the international
administrative and security presence in Kosovo).
19 The United Nations concluded its mission to East Timor in May 2005, but a small UN of¬ce
continues to provide some assistance. See U.N. Doc.S/2005/310, The Secretary-General, End
of Mandate Report of the Secretary-General on the United Nations Mission in Support of
East Timor, U.N. Doc. May 12, 2005.
20 As in East Timor, the UN continues to play a reduced role following the December 2005
withdrawal of its mission in Sierra Leone. See U.N. Doc.S/2005/777, The Secretary-General,
Twenty-Seventh Report of the Secretary-General on the United Nations Mission in Sierra
Leone, U.N. Doc. December 12, 2005.
64 CAN MIGHT MAKE RIGHTS?


train police and judges, plan elections, and help rewrite the laws. A NATO-
led international security assistance force patrols the streets of Kabul, and
American soldiers continue military operations to root out residual (and in
some areas resurgent) al-Qaeda and Taliban elements in the south and east
of the country.21
In Iraq, the U.S.-led coalition was an occupying power under the laws
of war, and UN Security Council Resolution 1483 gave the United States
full authority to run postwar Iraq, pending a transition to a democrati-
cally elected Iraqi government.22 Today, even after the formal transfer of
sovereignty to the Iraqis and subsequent parliamentary elections, the United
States still exercises great in¬‚uence over the ¬‚edgling Iraqi government and
maintains a massive troop presence on the ground. Although continuing
problems in Iraq have left the United States searching for escape routes, for
the foreseeable future the U.S. government remains ambivalently committed
to the project of recreating postwar Iraq, in much the same way that U.S.
occupying forces recreated post“World War II Germany and Japan.
From Kosovo and East Timor to Afghanistan and Iraq, promoting the rule
of law has become what some commentators have dubbed a neocolonialist or
neoimperialist enterprise, in which foreign administrators backed by large
armies govern societies that have been pronounced “unready” to take on
the task of governing themselves.23 This near-wholesale appropriation by
outsiders of key internal governance tasks raises a host of issues. It also
creates both new opportunities and new challenges of a type the United States
has not seen since the post“World War II era, with the Allied occupations
of Germany and Japan. Arguably, however, the challenges are far greater in
today™s global age.

21 Sam Zia-Zari¬, Human Rights Watch, World Report 2004: Losing the Peace in Afghanistan,
January 2004, available at http://www.hrw.org/wr2k4/5.htm. See generally Consortium for
Response to the Afghanistan Transition, Report: Filling the Vacuum: Prerequisites to Secu-
rity in Afghanistan, March 2002. Many critics charge that the international community
has nevertheless put too few resources into rebuilding Afghanistan and that lawlessness
prevails in much of the country. See, e.g., Afghanistan, Human Rights Watch World
Report 2006, 220“226, available at http://hrw.org/wr2k6/wr2006.pdf. See also interview
with William H. Spencer, Senior Advisor, International Resource Group, August 26, 2002
(notes on ¬le with authors); U.N. Doc.A/60/224-S/2005/525, The Secretary-General, The
Situation in Afghanistan and its Implications for International Peace and Security “ Emer-
gency International Assistance for Peace, Normalcy, and Reconstruction of War-Stricken
Afghanistan, delivered to the Security Council and the General Assembly, para. 3, U.N.
Doc. August 12, 2005. News reports con¬rm these sources. See, e.g., Belquis Ahmadi, Real-
ity Gap in Afghanistan, The Washington Post, July 8, 2002; Carlotta Gall, As NATO
Forces Ease Role of G.I.™s in Afghanistan, the Taliban Steps up Attacks, The New York
Times, December 11, 2005.
22 S.C. Res. 1483, U.N. Doc.S/RES/1483, May 22, 2003.
23 For a critical commentary on America™s role in these increasingly imperialist enterprises, see,
e.g., Michael Ignatieff, The American Empire: The Burden, The New York Times Magazine,
January 25, 2003, at 22.
65
WHAT IS THE RULE OF LAW?


As the previous chapter noted, there are profound questions about the
legality and legitimacy of some recent interventions. But the track record
of recent interventions raises equally profound questions about the capac-
ity of outsiders to have a signi¬cant positive impact on troubled societies.
Although elaborate rhetorical and ¬nancial commitments to rule of law pro-
grams have grown more and more common over the past decade, it remains
to be seen how much impact most of these programs will actually have.
Indeed, despite billions of aid dollars, the initial impact of most programs
to promote the rule of law have ranged from mixed to disappointing, with
the prospect for real long-term change still profoundly unclear.24 In Latin
America, for instance, many commentators have concluded that the earlier
era of rule of law promotion programs have had little lasting impact.25 In
Russia, more than a decade after a massive infusion of foreign aid began,
there have been few unequivocal “rule of law” success stories.26 Organized

24 See, e.g., Stephen Holmes, Can Foreign Aid Promote the Rule of Law? 8 East Eur. Const.
Rev. 68(1999); see also Carothers, The Rule of Law Revival, supra note 3; Carothers,
Promoting the Rule of Law Abroad: The Problem of Knowledge, Carnegie Endowment
for International Peace, Rule of Law Series, Working Paper No. 34, January 2003; see
also Stephen Golub, Beyond Rule of Law Orthodoxy: The Legal Empowerment Alterna-
tive, Carnegie Endowment for International Peace, Paper No. 41, October 2003. See also
¨
Hansjorg Strohmeyer, Making Multilateral Interventions Work: The U.N. and the Creation
of Transitional Justice Systems in Kosovo and East Timor, 107 Fletcher F. World Aff.
107, 112 (2001); Anthony J. Miller, Keynote Address: UNMIK: Lessons from the Early
Institution-Building Phase, 39 New Eng. L. Rev. 9, 17 (2004); Karla Hoff & Joseph E.
Stiglitz, After the Big Bang?: Obstacles to the Emergence to the Rule of Law in Post-
Communist Societies, World Bank, Working Paper No. 9282, October 2002; Ronald J.
Daniels & Michael Trebilcock, The Political Economy of Rule of Law Reform in Devel-
oping Countries, 26 Mich. J. Int™l L. 99 (2004); Christian Ahlund, Major Obstacles
to Building the Rule of Law in a Post-Con¬‚ict Environment, 39 New Eng. L. Rev. 39
(2004).
25 See, e.g., Linn Hammergren, Applying Rule of Law Lessons from Latin America; see also
Carothers, The Rule of Law Revival, supra note 3; see also GAO, Foreign Assistance, Report
GAO/NSAID-93“140, Promoting Judicial Reform to Strengthen Democracies, 1993; Golub,
2004. See also Jose E. Alvarez, Promoting the ˜Rule of Law™ in Latin America: Problems
and Prospects, 25 Geo. Wash. J. Int™l L. Econ. 281 (1991).
26 See Matthew Spence, The Complexity of Success: The U.S. Role in Russian Rule of
Law Reform, July 2005, available at http://www.carnegieendowment.org/¬les/CP60.spence.
FINAL.pdf, for a ¬ne discussion of the complex history of rule of law efforts in
Russia, including a subtle analysis of a recent success, the adoption of the Russian
Criminal Procedure Code. See Leon Aron, Russia Reinvents the Rule of Law, 2002,
at http://www.aei.org/publications/pubID.13781/pub detail.asp.; Karla Hoff & Joseph E.
Stiglitz, After the Big Bang?: Obstacles to the Emergence to the Rule of Law in Post-
Communist Societies, World Bank, Working Paper No. 9282, October 2002. “When Russia
launched mass privatization, it was widely believed that it would create a powerful con-
stituency for the rule of law. That didn™t happen.” See, e.g., Jeffrey D. Sachs & Katharina
Pistor, Introduction: Progress, Pitfalls, Scenarios, and Lost Opportunities, in The Rule of
Law and Economic Reform in Russia (Jeffrey Sachs & Katharina Pistor, eds., 1997). See,
e.g., Walter Dellinger & Samuel P. Fried, Promoting the Rule of Law Abroad: How the
U.S. Legal and Business Communities Can Help, XX World Policy Journal 79 (2003):
66 CAN MIGHT MAKE RIGHTS?


crime continues to play an enormous role in the economy; corruption among
public of¬cials shows little sign of abating; economic hardship continues
for millions; life expectancy remains lower than it was under communism;
the prisons are overcrowded and allegations of abuse routine; and Russia™s
ill-starred military campaign in Chechnya has killed thousands, including
many civilians who died as a result of massive Russian bombardments in
Grozny.27
In Kosovo, grave problems still remain, despite the fact that the interna-
tional community literally took over the province™s administration in 1999,
after a massive NATO bombing campaign ended a Serbian ethnic cleansing
campaign. Kosovo is still home to nearly 17,000 NATO troops and a civilian
UN administration adds hundreds of additional foreigners (including NGO
representatives, civilian police, and OSCE and EU staff).28 This is down from
the 50,000 internationals based in Kosovo in 2001 (40,000 KFOR troops
and 10,000 civilians), which worked out to roughly one foreigner for every
thirty-six Kosovars, a ratio of foreign occupiers to locals that would have
inspired the envy of 19th-century colonial powers. But despite the heavy
international involvement, few would assert that the rule of law has been
successfully recreated in Kosovo. Although some progress has been made
in a number of areas,29 ethnic intolerance continues to rage; thuggishness
and organized crime still ¬‚ourish.30 The ¬‚edgling UN-sponsored Kosovar

“ . . . America™s efforts to promote the rule of law have met with mixed success. For example,
after the fall of communism, the United States embarked on an effort to develop a consti-
tution, modernize legal codes, and protect property rights in Russia. While those efforts
yielded some positive results, few would deny that rampant corruption still plagues the
Russian legal system.”
27 See Anatol Lieven, Chechnya: Tombstone of Russian Power (1998). See Carothers, Aiding
Democracy Abroad, supra note 13, at 171“172: “In other parts of the world where the
U.S. has invested signi¬cantly in rule of law aid, disappointment is also common. Some ten
years later, the lack of rule of law in Russia is an open sore. . . . ” See also Holmes, supra
note 24.
28 See NATO: KFOR Information, available on the Web at http://www.nato.int/kfor/kfor/
kfor hq.htm (updated 1/06); The Secretary-General, Monthly Report to the United Nations
on the Operations of the Kosovo Force, delivered to the Security Council, U.N. Doc.S/
2005/348 (May 27, 2005).
29 See, e.g., Seth G. Jones, Jeremy M. Wilson, Andrew Rathmell, K. Jack Riley Establishing
Law and Order After Con¬‚ict (2005), Chapter 3, noting limited successes in Kosovo.
See also Colette Rausch, From Elation to Disappointment: Justice and Security Reform in
Kosovo, in Constructing Justice and Security After War (Charles T. Call, ed., 2006).
30 See, e.g., Organization for Security and Cooperation in Europe, Mission in Kosovo Depart-
ment of Human Rights and rule of law, The Response of the Justice System to the
March 2004 Riots, December 2005, available at http://www.osce.org/documents/mik/2005/
12/17177 en.pdf; see also Organization for Security and Cooperation in Europe, Mission
in Kosovo Department of Human Rights and rule of law, Review of the Criminal Justice
System, April 2003“October 2004, available at http://www.osce.org/documents/mik/2004/
12/3984 en.pdf.
67
WHAT IS THE RULE OF LAW?


judicial system remains hard-pressed to offer even reasonably speedy trials,
much less consistently independent rulings.31
Other interventions have also had disappointing results. In Haiti, for
instance, the UN-sponsored, U.S.-led military intervention of the early 1990s
led to an early spurt of support for rule of law efforts, but international inter-
est soon ¬‚agged, and by 2004 Haiti was once again in crisis. When armed
rebels “ many associated with serious rights abuses in the past “ seemed
likely to topple President Aristide, who had himself been badly discredited,
the U.S. military intervened once more, this time to help get rid of the elected
president the United States had once helped restore to power.32 In Sierra
Leone, peacekeeping troops have completed their mission and the prospects
for peace look somewhat brighter, but corruption and police abuse remains
widespread, and barriers to obtaining accountability for past abuses persist,
despite some progress.33
In East Timor, where UN peacekeepers withdrew in 2005, the Timorese
government, still aided by UN police advisors, military trainers, and legal
experts, is struggling in the face of escalating political violence, economic
hardship, development challenges, and an uneven accountability process.34
In May 2006, the government™s ability to maintain law and order collapsed in
31 See, e.g., id., The Response of the Justice System to the March 2004 Riots. See also Anthony
J. Miller, Keynote Address: UNMIK: Lessons from the Early Institution-Building Phase, 39
New Eng. L. Rev. 9, 17 (2004).
32 See, e.g., U.N. Doc.S/2005/302, UN Security Council, Report of the Security Council
Mission to Haiti, 13 to 16 April 2005, U.N. Doc. May 2005; Sean. D. Murphy, ed., Con-
temporary Practice of the United States Relating to International Law: Replacement of
U.S.-Led Force in Haiti with UN Peacekeeping Mission, 98 Am. J. Int™l L. 586 (2004).
See also press release, U.S. Department of State, Resignation of President Jean-Bertrand
Aristide of Haiti, February 29, 2004, at http://www.state.gov; Daniel Balint Kurt, Aris-
tide Calls for “Peaceful Resistance”; Haitian Insists He™s Still President, The Washington
Post, March 9, 2004, at A17; press release, UN News Centre, UN Launches Peacekeep-
ing Operation in Haiti, June 1, 2004, available at http://www.un.org; International Crisis
Group, 2005, Haiti™s Transition: Hanging in the Balance; International Crisis Group, 2005,
available at http://www.crisisgroup.org/home/index.cfm?id=3255&l=1; Spoiling Security in
Haiti, International Crisis Group, 2005, available at http://www.crisisgroup.org/home/
index.cfm?id=3371&l=1.
33 See, e.g., Human Rights Watch, Sierra Leone Indictments Welcomed, March 11, 2003,
available at http://www.hrw.org/press/2003/03/sleone031103.htm, noting that despite recent
indictments issued by the Special Court for Sierra Leone, “[b]ecause the Special Court is
anticipated to prosecute around twenty persons, it will leave many crimes unaddressed.”
See James Cockayne, The Fraying Shoestring: Rethinking Hybrid War Crimes Tribunals, 28
Fordham Int™l L.J. 616 (2005).
34 See United Nations: UNMISET Facts and Figures, available at www.un.org/peace/timor/
unmisetF.htm (last accessed August 28, 2002); see also The Secretary-General, End of Man-
date Report of the Secretary-General on the United Nations Mission in Support of East
Timor, delivered to the Security Council, U.N. Doc.S/2005/310, May 12, 2005. See also
Open Society Justice Initiative and Coalition for International Justice, Unful¬lled Promises:
Achieving Justice for Crimes Against Humanity in East Timor, 2004.
68 CAN MIGHT MAKE RIGHTS?


the face of violent protests and gang warfare that followed the government™s
dismissal of 600 disgruntled soldiers. As a result, the Timorese government
was forced to declare a state of emergency and request the dispatch of a
new international peacekeeping force to restore order, with the outcome still
uncertain at the time this book went to press.
In Afghanistan, the indicators so far are sobering: the delivery of aid funds
has been delayed; local communities in many parts of the country are still
vulnerable to pressure from warlords, organized criminal gangs, or intereth-
nic strife; in much of the country women reportedly face serious retaliation if
they fail to wear the burqa; prison conditions are reportedly appalling; and
in some instances, Taliban-era regulations, although technically no longer
valid, are still enforced. Many parts of Afghanistan have also seen a recent
resurgence in Taliban activity.35
In Iraq, too, the preliminary indications remain discouraging; a majority
of courts were destroyed by looters in the immediate postwar period, and
both ordinary crime (robbery, rapes, murders, etc.) and attacks on coali-
tion forces have greatly increased, rather than decreased, in the nearly three
years since the “military phase” of the intervention in Iraq ended. Out-
side the Kurdish areas, a majority of Iraqis say they oppose the presence of
Coalition forces and report that they view the security situation as worse in
Iraq, not improved, as a result of the U.S. invasion.36 The trial of Saddam
Hussein and other former leaders face continuing delays and challenges to
their credibility.37


III. DEFINITIONS AND REASONS

With so much consensus on the value of building the rule of law in troubled
societies, why have rule of law promotion efforts been so disappointing? Are
efforts by foreign interveners to promote the rule of law inevitably doomed?
35 See, e.g., Human Rights Watch, Afghanistan: Protect Women Candidates, Aug. 17, 2005,
available at http://hrw.org/english/docs/2005/08/16/afghan11633.htm; James Phillips, Her-
itage Foundation, Afghanistan™s Elections and the Resurgent Taliban, September 16, 2005.
News reports con¬rm these sources. See also Human Rights Watch, Between Hope and
Fear: Intimidation and Attacks against Women in Public Life in Afghanistan, Oct. 2004,
available at https://www.hrw.org/backgrounder/asia/afghanistan1004/.
36 See, e.g., The Brookings Institution, Iraq Index at 37, 38, 43, December 15, 2005, contain-
ing information on security indicators and public opinion polls, available at http://www.
brookings.edu/fp/saban/iraq/index.pdf.
37 See, e.g., Amnesty International, Iraqi Special Tribunal: Fair Trials Not Guaranteed,
May 13, 2005; Human Rights Watch, The New Iraq?: Torture and Ill-Treatment of Detainees
in Iraqi Custody, Jan. 2005; Robert M. Perito, United States Institute of Peace, The Coali-
tion Provisional Authority™s Experience With Public Security in Iraq, April 2005, available at
www.iraqfoundation.org/reports/pol/2005/sr137.pdf; Michael P. Scharf, Is It International
Enough? A Critique of the Iraqi Special Tribunal in Light of the Goals of International
Justice, 2 J. Int™l Crim. Just. 330 (2004).
69
WHAT IS THE RULE OF LAW?


At some times and in some places, the answer may be yes: there may well
be circumstances in which outsiders are likely to do more harm than good,
and we take up this question later on in this book. But for the most part,
we believe that it is possible for outsiders to work constructively with local
populations to promote the rule of law, providing skills and funds that are
unavailable locally.
If most rule of law projects so far have been disappointing, we think
it is in part because of the sheer (yet often underappreciated) complexity
of the task and in part because of resource and bureaucratic constraints.
Thus, although the international community has spent billions on rule of
law projects, some projects have been underfunded whereas others have
been overfunded, and funding and planning have often been carried out
in an uncoordinated fashion. These issues are taken up in Chapter 9. This
chapter, however, focuses on a root cause of the many other dif¬culties that
have plagued most rule of law programs: the failure of many policymakers
to examine or fully understand the very concept of “the rule of law.”38
When policymakers speak of the rule of law, they usually have in mind
a certain end-state, characterized by well-functioning, respected courts, fair
and adequate legal codes, well-trained police, and respect for civil and polit-
ical rights. This end-state is rarely clearly de¬ned, however; as noted at the
beginning of this chapter, when pressed, many policymakers fall back on an
“I know it when I see it” characterization of the rule of law. This “I know
it when I see it” quality has some virtues, to be sure: it enables consensus,
because it leaves everyone free to interpret the rule of law in his or her own
way, with little need to confront or resolve areas of disagreement. But it also
permits a super¬ciality and obtuseness that has badly limited the ef¬cacy of
many rule of law promotion efforts.
Just what is the rule of law, then? Scholars, philosophers, and lawyers have
debated this for centuries, and although there is no one de¬nition everyone
agrees upon, it is probably fair to say that most scholarly conceptions of
the rule of law at least share a similar sense of the goals of the rule of law.
Richard Fallon of Harvard Law School has thoughtfully analyzed competing
theoretical conceptions of the rule of law. Fallon argues that virtually all
understandings of the rule of law share three purposes, or values: the rule of
law serves to protect people against anarchy; to allow people to plan their
affairs with con¬dence because they know the legal consequences of their
actions; and to protect people from the arbitrary exercise of power by public

38 See, e.g., Carothers, Aiding Democracy Abroad, supra note 13, at 165: “Aid providers
interested in promoting the rule of law have not, for the most part, agonized much about the
complexity and even ineffability of the concept. They have concentrated on two of its most
tangible manifestations “ the state institutions that play a central role in the enforcement
of law and the written laws themselves.” Cf. George P. Fletcher, Basic Concepts of Legal
Thought 12 (1996): “[W]e are never quite sure what we mean by ˜the rule of law.™ ”
70 CAN MIGHT MAKE RIGHTS?


of¬cials.39 When the rule of law exists, life is reasonably orderly and stable,
and no one needs to fear unfair persecution or abuse by the authorities.
But although most conceptions of the rule of law take for granted these
broad purposes, there are still two qualitatively different ways of conceptual-
izing the rule of law. Traditionally, many scholars de¬ned the rule of law in a
“formal” or “minimalist” manner, whereas much more recent scholarship
has argued for a thicker, more “substantive,” “maximalist” account of the
rule of law.40
The minimalist conception of the rule of law emphasizes the rule of law™s
formal and structural components, rather than the substantive content of the
laws. In other words, the rule of law involves rules and practices that are
routinely followed; this conception of the rule of law echoes the Aristotelian
precept that there should be a “government of laws, not men” (or, as U.S.
Supreme Court Justice Antonin Scalia put it, the rule of law is “a law of
rules”).41 In the 19th century, the in¬‚uential British thinker A. V. Dicey
emphasized that under the rule of law, no one can be punished except for
violating preexisting laws and after sentencing by regular courts; everyone,
including government of¬cials, has equal status under law (no one is “above”
the law), and general constitutional principles protecting rights result from
ordinary legal processes.
Some minimalist theories of the rule of law also emphasize the importance
of having laws that are both created through some sort of democratic process
and that predate their application; when government decision-makers are
bound by laws that predate them, opportunities for unfairness are limited,
and the laws may have a historical legitimacy that predates their enforcement.
Others theorists emphasize the importance of having laws that are universal
in form, consistently applied, and suf¬ciently well known that citizens can
plan their lives around them.42 Still others emphasize the importance of
process to the rule of law, insisting that the rule of law involves and requires
accessible, transparent mechanisms for legal and political change. Various
formal, minimalist conceptions of the rule of law have come to be associated
not only with the older Aristotelian and British traditions, but also more
recently with the work of scholars such as Friedrich von Hayek, Joseph Raz,
and Richard Posner.43

39 Richard H. Fallon, “The Rule of Law” as a Concept in International Discourse, 97 Colum.
L. Rev. 1, 7 (1997).
40 Cf. Paul Craig, Formal and Substantive Conceptions of the Rule of Law: An Analytical
Framework, Pub. L. 467 (1997).
41 Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, (1989).
42 See, e.g., Jeremy Waldron, One Law for All? The Logic of Cultural Accommodation, 59
Wash. & Lee L. Rev. 3 (2002).
43 See Friedrich A. von Hayek, The Constitution of Liberty (1960); Joseph Raz, The Rule
of Law and Its Virtue, in The Authority of Law: Essays on Law and Morality (1979);
Richard A. Posner, Law, Pragmatism, and Democracy (2003).
71
WHAT IS THE RULE OF LAW?


The primary alternative to a formal, minimalist conception of the rule
of law is a thicker, more “substantive” account. A substantive account of
the rule of law does not necessarily reject the notion that the rule of law
has important structural and formal elements “ predictability, universality,
nonarbitrariness, and so on “ but it insists that true rule of law also requires
particular substantive commitments: to human rights, for instance.44
Those who favor substantive theories of the rule of law argue that formal
theories cannot be fully adequate, because it is easy to imagine a horri¬cally
abusive government that might fully comply with the purely formal dimen-
sions of the rule of law. Imagine, for instance, a state in which a minority
group is considered inferior by the majority; duly and democratically passed
laws mandate discriminatory treatment for the minority; elected of¬cials
obediently enforce the laws. . . . Or, alternatively, consider a state that favors
gruesome and harsh punishments for minor crimes: shoplifters are ¬‚ogged
to death; adulterers are publicly stoned.
In either of these hypothetical states (and readers will readily think of
real-life examples), the formal elements of most minimalist de¬nitions of the
rule of law might well be satis¬ed. The laws might not be arbitrary; they
might be enforced in a consistent fashion; people could plan around them;
they might even have been adopted through some fair and democratic voting
process. Nevertheless, most of us would consider these states unjust in some
fundamental ways, and those who favor more substantive accounts of the
rule of law insist that injustice is incompatible with true rule of law.
Just as there is a range of slightly different but overlapping formal concep-
tions of the rule of law, there are numerous and often overlapping substantive
conceptions of the rule of law, some emphasizing justice or equality, some
emphasizing freedom, some emphasizing protection of minority rights, and
so on.45 But if formal conceptions of the rule of law are vulnerable to the
criticism that they are devoid of moral and ethical content, and can there-
fore coexist comfortably with appalling human rights abuses and injustices,
substantive conceptions of the rule of law have their own vulnerabilities.
Who should decide, for instance, which substantive values must be
embodied in law for the rule of law to be satis¬ed? What neutral principle
can be invoked to resolve disputes over competing conceptions of justice and

44 See also Robert S. Summers, A Formal Theory of the Rule of Law, 6 Ratio Juris 127,
135 (1993): “A substantive theory is characterized mainly by the greater substantive con-
tent it incorporates. Thus it incorporates to some degree one or more of the following:
rules securing minimum welfare . . . , rules securing some variety of the market economy,
rules protecting at least some basic human rights, and rules institutionalizing democratic
governance. Here, the contrast with formal theories of the rule of law is stark.”
45 See, e.g., Ronald Dworkin, A Matter of Principle 162 (1985). Also cf. Judith N. Shklar,
Political Theory and the Rule of Law, in The Rule of Law (A. Hutchinson & P. Monahan,
eds., 1987), reprinted in Judith N. Shklar, Political Thought & Political Thinkers
(Chicago: University of Chicago Press, 1998).
72 CAN MIGHT MAKE RIGHTS?


rights? Thus, although everyone might agree that Nazi Germany™s Jewish
laws were horri¬cally unjust, what about the laws that remain on the books
in many countries of the world that grant women greatly reduced politi-
cal and social rights? Would it be possible for a state such as Saudi Arabia
to continue its policies that discriminate against women but still satisfy the
main substantive requirements of the rule of law? Can a state that grants
preferential treatment to one religious or ethnic group comply fully with the
rule of law? Can a state base its law on religiously “revealed” truths (such
as Shariah) still satisfy rule of law requirements?
Some critics of substantive conceptions of the rule of law argue that more
minimalist conceptions of the rule of law are superior to substantive concep-
tions precisely because of their “emptiness.” Robert Summers, for instance,
argues that only more formal accounts of the rule of law can generate sup-
port from across the political spectrum, because formal accounts do not
require consensus on potentially divisive questions about rights.46 Around
the globe, people may legitimately differ on questions relating to which rights
are fundamental, but perhaps all people can at least agree on the formal, pro-
cess dimensions of the rule of law, which are minimalist enough to permit
different societies to develop different substantive rules.
To Summers, formal accounts of the rule of law have at least an analytic
clarity that substantive accounts cannot replicate; if the rule of law has any
distinct meaning, and is not just a convenient and vacuous shorthand for
“democracy and human rights and other values I happen to like,” it is best
to keep it minimal and formal. If we think of the rule of law in a purely formal
and minimalist way, this argument goes, at least we can be reasonably clear
about what we are talking about when we talk about the rule of law. But
adherents of a more substantive view of the rule of law would, of course,
contest the adequacy of such minimalist approaches.
This discussion of varying conceptions of the rule of law inevitably over-
simpli¬es. There is a wide range of formal conceptions of the rule of law,
each emphasizing slightly different elements and a similarly wide range of
substantive accounts. What™s more, some de¬nitions of the rule of law try
to combine formal and substantive elements, whereas others look to his-
toricity47 or legal process to de¬ne key rule of law elements.48 But though

46 Robert Summers, The Principles of the Rule of Law, 74 Notre Dame L. Rev. 1691 (1999).
47 See also Rainer Grote, Rule of Law, Rechtsstaat and ˜Etat de Droit,™ in Constitutionalism,
Universalism and Democracy “ A Comparative Analysis (Christian Starck, ed., 1999).
48 Legal scholars have offered varying de¬nitions of the rule of law. See, e.g., William Whitford,
The Rule of Law, 2000 Wisc. L. Rev. 723 (2000); see also Richard Fallon, supra note 39
at 7“9, distinguishing between formalist, historicist, substantive, and legal process “ideal
types” of the rule of law concept. Most of the varying conceptions contain at least some
overlapping components, however, as do the varying conceptions of the rule of law drawn
on by the foreign policy community. Most assume that the rule of law has both a formal
component (statutes, rules known in advance, courts, politically independent judiciary with
73
WHAT IS THE RULE OF LAW?


brief, this discussion should serve to convey the enormous complexity of the
idea of the rule of law and something of the scholarly controversy over its
meaning.
Given the complexity and controversy over the true nature of the rule of
law, it is perhaps no surprise that most policymakers tend to shrug aside
the scholarly debate, and fall back on “I know it when I see it.” If even
philosophers and legal scholars can™t agree on a de¬nition of the rule of law,
why should policymakers be troubled by de¬nitional questions? Why not
fall back on a rough-and-ready intuitive understanding of rule of law?
But although precise de¬nitions may be impossible, this lack of clarity on
the part of most policymakers can be very damaging, especially in fragile
post-intervention societies, for it allows policymakers and practitioners to
pursue poorly thought-through and often internally contradictory programs.
Indeed, one legal scholar argues that it inevitably “detracts from the quality
of the debate for anybody to invoke an emotionally laden phrase like rule of
law.”49
Because many decision-makers ignore the question of whether it is best to
conceptualize the rule of law in a formal or substantive way, many rule of law
programs simply con¬‚ate the two potentially very different facets of rule of
law in a simplistic manner, assuming that substance will naturally ¬‚ow from
form “ or that a normative commitment to substantive values (such as respect
for individual and minority rights, a commitment to nonviolent means of
resolving disputes, etc.) will naturally ¬‚ow from structurally independent
courts and from newly drafted legislation that highlights those values.50

powers of judicial review, etc.) and a substantive component that implicitly is nonpositivist:
to most in the foreign policy community, the rule of law also involves laws that comport with
basic notions of human rights. Fallon notes that most conceptions of the rule of law share
three purposes or values: protection against anarchy and the Hobbesian war of all against
all, creation of conditions in which people can plan their affairs with reasonable con¬dence
that they can know in advance the legal consequences of their actions, and protection against
some types of of¬cial arbitrariness. Beyond these purposes of the rule of law, Fallon notes
that most conceptions of the rule of law emphasize ¬ve basic elements: (1) people must
be able to understand and comply with the law (thus, the rule of law must involve the
existence of some set of legal rules, standards, and principles that can guide people); (2)
the law should actually guide people; (3) the law should be reasonably stable; (4) the law
should be supreme, ruling of¬cials and judges as well as ordinary citizens; and (5) there
should exist “instrumentalities of impartial justice”: that is, the rule of law requires courts
which employ fair procedures.
49 Whitford, id., at 12.
50 Rachel Kleinfeld makes a similar point in an excellent article written for the Carnegie Endow-
ment for International Peace™s Rule of Law Series. Kleinfeld notes that the rule of law
is “not a single, uni¬ed good” but is composed of ¬ve separate ends, which she de¬nes
as (1) a government bound by law, (2) equality before law, (3) law and order, (4) pre-
dictable and ef¬cient rulings, and (5) human rights. She notes that although these ends
can be mutually reinforcing, they are distinct: they can “meet different types of support
or resistance within countries undergoing reforms,” and these ends are “often in tension
with one another.” Kleinfeld notes than many rule of law practitioners assume that creating
74 CAN MIGHT MAKE RIGHTS?


This con¬‚ation of the formal and substantive aspects of the rule of law
has led to a simplistic emphasis on structures, institutions, and the “mod-
ernization” of legal codes, in a cookie-cutter way that has generally taken
little account of the differences between societies.51 In his 1999 book, Aiding
Democracy Abroad, Tom Carothers of the Carnegie Endowment criticizes
what he calls the “Rule of Law Assistance Standard Menu”: it includes
“reforming institutions” (judicial reform, legislative strengthening, police
and prison reform, etc.), “[r]ewriting laws” (modernizing criminal, civil,
and commercial laws), “[u]pgrading the legal profession through support
for stronger bar associations and law schools, and “[i]ncreasing legal access
and advocacy” through the support of legal advocacy NGOs, law school clin-
ics, and so on.52 From Latin America to the former Soviet States to Bosnia,
Kosovo, East Timor and Iraq, most rule of law programs have followed
precisely this “standard menu.”53
As this chapter has already noted, however, this model has not worked
particularly well in any of the places in which it has been used.54 Despite the
outpouring of foreign money and talent on rule of law programs, the results
have often been disappointing. Whether we look at Russia or Guatemala,

law-related institutions will reliably lead to the achievement of these various desirable
ends but that this assumption is far too simplistic. Kleinfeld, Competing De¬nitions
of the Rule of Law: Implications for Practitioners, January 2005, available at http://www.
carnegieendowment.org/¬les/CP55.Kleinfeld.FINAL.pdf. Both common sense and the aca-
demic literature warn against the easy assumption that formalistic transplants such as con-
stitutions and legal institutions will automatically produce the desired changes in culture
and behavior. See, e.g., A. E. Dick Howard, The Indeterminacy of Constitutions, 31 Wake
Forest L. Rev. 383, 403 (1996) (warning that “planting a [constitutional] proposition in a
different cultural, historical, or traditional context may lead to results quite different from
those one ¬nds in the country from which the proposition was borrowed”). This is all
the more true when the thing to be transplanted is as capacious as the very idea of “the
rule of law.” Nonetheless, in practice, the same formalistic mistakes are made time and
again. Cf. Steven G. Calabresi, The Historical Origins of the Rule of Law in the American
Constitutional Order, 28 Harv. J. L. & Pub. Pol™y 273 (2004).
51 See Carothers, Aiding Democracy Abroad, supra note 13, at 176, noting: “As aid providers
attempt judicial reform work in previously uncharted regions, they seem determined to
repeat mistakes made in other places.” More than anyone else, Carothers has spearheaded
efforts to rethink rule of law promotion (and democracy promotion, more broadly). His
book makes an excellent starting point for those concerned with these issues, and the
Carnegie Endowment™s Democracy and Rule of Law Program, which Carothers heads, has
produced numerous provocative and thoughtful reports on rule of law reform.
52 Id., at 165, 168.
53 See Wade Channell, Carnegie Endowment for International Peace, Lessons Not Learned:
Problems with Western Aid for Law Reform in Postcommunist Countries, Rule of Law
Series, No. 57 (May 2005).
54 See Carothers, Aiding Democracy Abroad, supra note 13, at 170: “What stands out about
U.S. rule of law assistance since the mid-1980s is how dif¬cult and often disappointing such
work is.” See also Stephen Golub, Beyond Rule of Law Orthodoxy: The Legal Empow-
erment Alternative, Carnegie Endowment for International Peace, Working Paper No. 41,
October 2003.
75
WHAT IS THE RULE OF LAW?


Kosovo or Afghanistan, there is little basis for concluding that following such
a “Rule of Law Assistance Standard Menu,” by itself, has actually produced
anything most of us would, in fact, recognize as the rule of law.55
To a signi¬cant extent, what such a rough-and-ready institutionally ori-
ented approach fails to recognize is that “promoting the rule of law” is an
issue of norm creation and cultural change as much as an issue of creating
new institutions and legal codes.56 This is most obviously true when we con-
sider the so-called “substantive” dimensions of the rule of law: respect for
minority rights, for instance, or the rights of women. In the United States,
with a history of slavery and racism, citizens know very well that there can
be de jure “equality” on the books and a well-functioning legal system but
that this can coexist with enormous de facto discrimination. Eliminating the
discriminatory legacy of racism requires going well beyond making changes
to formal law, structures, and institutions, although changes to formal law
can of course play an important role in promoting genuine cultural change.
But eliminating discrimination is a matter of attitudes and beliefs as much
as it is a matter of law and structure. Inevitably, putting into place new
and improved institutions and legal codes will not automatically succeed in
creating substantive cultural commitments to equality and rights.
Building the rule of law is also an issue of norm creation in a much
deeper sense, however, a sense that is usually overlooked even by those who
insist that their de¬nition of the rule of law is purely formal rather than
substantive. For even in its formal sense, the rule of law requires a particular
set of cultural commitments. Most fundamentally, even the most formal,
minimalist conception of the rule of law requires a normative commitment
to the project of law itself, a commitment to the orderly and nonviolent
resolution of disputes and a willingness to be bound by the outcome of legal
rules and processes.
This normative commitment to the idea of law itself is not something that
comes “naturally” to human beings, although residents of most advanced
democracies take it for granted. In the United States, for instance, citizens
have the luxury of living in a rule of law culture, in which vigilantism,
personality-driven rule, noncompliance with legal process, and public cor-
ruption are the exceptions that seem to us to prove the general rule that we

55 Golub, supra note 54; see also Frank Upham, Mythmaking in the Rule of Law Orthodoxy,
Carnegie Endowment for International Peace, Working Paper No. 30, September 2002.
56 See, e.g, John Norton Moore, Toward a New Paradigm: Enhanced Effectiveness in United
Nations Peacekeeping, Collective Security, and War Avoidance, 37 Va. J. Int™l L. 811, 860
(1997), noting that democracy building “is a goal to be assisted through norm-creation,
education, electoral observation, and other modes of peaceful engagement. [It is not] a
charter for an intolerant one-size-¬ts-all dogma. Room must always be left for the many
paths to the same bottom line which honor local conditions and wishes.” Outside of the
academy, however, these insights are given a certain amount of lip service, but they rarely
bring decision-makers to reexamine the thrust of rule of law promotion efforts.
76 CAN MIGHT MAKE RIGHTS?


are a law-bound society. But the American rule of law culture was not a
natural and inevitable development; it is the product of a particular history,
of liberal, enlightenment traditions; it evolved over centuries and has been
facilitated by a relatively high degree of prosperity.57
Without a widely shared cultural commitment to the idea of the rule of
law, courts are just buildings, judges are just bureaucrats, and constitutions
are just pieces of paper. This poses particular problems in troubled societies,
with a history of repressive governments or brutal wars: why should anyone
care about laws and courts and judges and constitutions?
In most post-intervention and post-intervention societies, it has been a
long time since there was a fair and well-functioning legal system, if one ever
existed at all; there may be only a weak tradition of using law to resolve
disputes or no such tradition at all. Formal law may have been discredited
by abuses or inef¬ciencies, or formal law may have barely existed for most
people. In such societies, well-intentioned efforts by outsiders to build the
rule of law solely by creating formal structures and rewriting constitutions
and statutes often have little or no impact.58
There is a story, perhaps apocryphal, that has some relevance here. Dur-
ing the 19th and early 20th centuries, some Middle Eastern governments
were anxious to “improve” the lot of nomadic tribespeople, who roamed
from place to place, living in tents, rarely having reliable access to clean
water or health care or schools. (Governmental desire to regulate and con-
trol nomadic populations also played a role, of course.) The governments
built new houses for the nomads in cities and towns and gave them to the
tribes for free, con¬dently expecting that the nomads would immediately
transform themselves into ordinary townspeople. But although the nomads
appreciated the new houses, they promptly quartered their camels in the ¬ne
shelters and then lived themselves in their old tents, outside the houses, to the
government™s great consternation. The houses soon deteriorated (they were
not designed with the needs of camels in mind), and after a season or two,


57 As recent events suggest, post 9/11, it is even more fragile and culturally contingent than
most of us probably think.
58 See Daniel Berkowitz, Katharina Pistor, and Jean-Francois Richard, Economic Develop-
ment, Legality, and the Transplant Effect (unpublished draft, 2000), reporting on a study
¬nding that how a country™s legal system developed is a better predictor of legality than the
substance of the laws in place. See also Jianfu Chen, Market Economy and the International-
isation of Civil and Commercial Law in the People™s Republic of China, in Law, Capitalism
and Power in Asia: The Rule of Law and Legal Institutions 69 (J. Kaniskha Jayasuriya,
ed., 1999); Ugo Mattei, The New Ethiopian Constitution: First Thoughts on Ethnical Fed-
eralism and the Reception of Western Institutions, in Transplants, Innovation, and Legal
Tradition in the Horn of Africa 111 (Elisabetta Grande, ed., 1995); Jennifer Widner,
Building Judicial Independence in Common Law Africa, in The Self-Restraining State:
Power and Accountability in New Democracies (Andreas Schedler, Larry Diamond, &
Mark F. Plattner, eds., 1999).
77
WHAT IS THE RULE OF LAW?


most of the nomads abandoned the new houses and returned to their wan-
derings, leaving behind a cadre of baf¬‚ed and irritated government of¬cials.
The nomads, it turned out, did not particularly want to live in one place.
Efforts to create the rule of law in societies that lack a rule of law tradition
can run into similar problems. Many Americans take the value of the rule
of law for granted and assume that “if you build it, they will come” applies
to courts as much as to baseball ¬elds. But courts and constitutions do
not occupy the same place in every culture that they occupy in American
(or European) culture, and as a result, efforts to build the rule of law in
post-intervention societies can appear irrelevant to the concerns of ordinary
people “ or, at worst, incoherent, arrogant, and hypocritical.59
When this occurs, such approaches may not only fail to create the rule
of law “ but as Chapter 8 discusses, such blinkered approaches may also
actually undermine the rule of law.


IV. A PRAGMATIC DEFINITION OF THE RULE OF LAW

If we consider interventions to promote human rights and the rule of law
to be justi¬able and important at times, whether for moral reasons, eco-
nomic reasons, or security reasons, we are faced with some very fundamen-
tal questions, to which neither scholars nor policymakers have as yet paid
suf¬cient attention. What precisely are the cultural conditions in which law
and legal institutions matter? What are the circumstances in which “legal”
rules become enforceable and accepted as legitimate? Under what conditions
can law play a role in shaping cultural understandings of violence? When
and how can “outsiders” help create those conditions in a given society?
These questions are taken up in greater detail in Chapter 8. For now, it
is enough to note that these are all issues of norm creation. Although social
norms are tightly linked to law in some societies, they are not at all linked in
others. When they are delinked, changing “the law” will have little effect by
itself; only an explicit simultaneous focus on norm creation is likely to lead
to the possibility of the rule of law.
It is easy to state this, of course, but less easy to know what to do about it.
This chapter began by noting that the concept of the rule of law is much less
simple than most policymakers and practitioners think. Centuries of legal
theorists have been unable to agree wholly on its contours, and few rule of
law theorists have grappled with the issue of how rule of law cultures can
be created.

59 Cf Yash Gai, The Rule of Law, Legitimacy, and Governance, 14 Int™l J. Sociol. of L. 179
(1986); Herman Slaats & Keren Portier The Implementation of State Law Though Folk
Law: Karo Batak Village Elections, 23 J. Legal Pluralism 153 (1985).
78 CAN MIGHT MAKE RIGHTS?


Is there any way to acknowledge the complexity of the idea of the rule
of law but nonetheless develop a pragmatic understanding that will allow
us to move forward and create thoughtful programs in post-intervention
societies?
We think that there is. First, we offer a de¬nition of the rule of law that,
though imperfect, helps capture what most people regard as the fundamental
goals of rule of law promotion. Second, we offer a framework for thinking
about building the rule of law, which we call the synergistic approach.
For our purposes, it is most useful to de¬ne the rule of law in the following
way:

The “rule of law” describes a state of affairs in which the state success-
fully monopolizes the means of violence, and in which most people,
most of the time, choose to resolve disputes in a manner consistent
with procedurally fair, neutral, and universally applicable rules, and in
a manner that respects fundamental human rights norms (such as pro-
hibitions on racial, ethnic, religious and gender discrimination, torture,
slavery, prolonged arbitrary detentions, and extrajudicial killings). In
the context of today™s globally interconnected world, this requires mod-
ern and effective legal institutions and codes, and it also requires
a widely shared cultural and political commitment to the values
underlying these institutions and codes.

This de¬nition is primarily descriptive and pragmatic. It is not intended
to stand up to rigorous philosophical critiques or settle arguments about
¬rst-order and second-order rule-making or resolve questions relating to the
universality of rights. Instead, this working de¬nition seeks simply to identify
what it is that most policymakers are looking for when they talk about the
rule of law in post-intervention societies.
r By noting that the rule of law requires the state to successfully monopo-
lize the means of violence this de¬nition recognizes that extreme insecu-
rity (insurrection, civil war, frequent terrorist attacks) makes it virtually
impossible for societies to sustain the rule of law.
r By noting that the rule of law involves not merely the existence of formal
rules and rights but also the existence of people who voluntarily choose
to respect those rules and rights, this de¬nition emphasizes that the rule
of law is a matter of cultural commitments as well as institutions and legal
codes.
r By noting that the rule of law requires that people choose to resolve dis-
putes in a manner that is consistent with rules and rights, rather than
de¬ning the rule of law solely as the actual use of certain kinds of legal
institutions, this de¬nition emphasizes that much con¬‚ict resolution
occurs “in the shadow of the law.” Actual court use, even in famously
litigious societies such as America, can be rare, but the rule of law exists
79
WHAT IS THE RULE OF LAW?


as long as both private and public actors accept the ultimate legitimacy of
legal institutions and rules and internalize these rules into their everyday
behavior and expectations.
r By noting that the rule of law exists when most people, most of the time,
act in accordance with rules and rights, this de¬nition emphasizes that
the rule of law is a long-term project that is always aspirational to some
extent. Even in the United States and other states with strong rule of law
traditions, not every citizen and not every of¬cial respects legal rules and
institutions. In post-intervention societies, expectations of perfection will
never be met; this de¬nition emphasizes the importance of signi¬cant, but
not necessarily total, buy-in.
r By emphasizing that the rule of law requires respect for fundamental
human rights, we adopt an unabashedly substantive conception of the
rule of law. Here, too, we make no effort to justify this on philosophical
grounds; it is enough, for our purposes, to say that we think this de¬nition
accurately describes the implicit goals of most rule of law programs. By
listing only those norms that are usually understood to have gained near
universal acceptance, however, we take a deliberately minimalist stand.
These norms are widely accepted in part because they are relatively bare
bones and allow ample room for different societies to de¬ne rights in
different ways, provided they respect core principles such as prohibitions
against racial, ethnic, religious and gender discrimination, torture, slavery,
prolonged arbitrary detentions, and extrajudicial killings.
These norms are enunciated in the Universal Declaration of Human
Rights, and they have since been codi¬ed in international treaties such as
the International Covenant on Civil and Political Rights,60 the Convention
on the Elimination of All Forms of Discrimination Against Women,61
the International Convention on the Elimination of All Forms of Racial
Discrimination,62 and the Convention Against Torture,63 each of which
has been signed or rati¬ed by virtually all nations in the world. These
universally accepted norms are also usually seen as having attained the
status of customary international law, binding even on nonsignatories to
the treaties listed above.
r Finally, this de¬nition acknowledges that although formal law and institu-
tions alone cannot create the rule of law, modern codes and institutions are
nonetheless essential in this era of globalization. One can readily imagine

60 Available at http://www.unhchr.ch/html/menu3/b/a ccpr.htm; has been rati¬ed by 152
countries.
61 Available at http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm; has been
rati¬ed by 177 countries.
62 Available at http://www.unhchr.ch/html/menu3/b/d icerd.htm; has been rati¬ed by 169
countries.
63 Available at http://www.hrweb.org/legal/cat.html; has been rati¬ed by seventy-two
countries.
80 CAN MIGHT MAKE RIGHTS?


a peaceful, stable, and orderly society with few or no formal legal institu-
tions (and the anthropological literature is replete with examples). Today,
however, the fate of each nation is bound up with the fate of the global
community, and realistically, nations cannot participate in the global eco-
nomic or political system without legal institutions that are reasonably
consistent with those of other modern nations. This does not lessen the
degree to which creating the rule of law remains also a matter of fostering
cultural commitment to the values underlying the rule of law, however.


V. THE SYNERGISTIC APPROACH

This chapter has suggested that many past rule of law programs have been
disappointing in part because they have not grappled with the complexities
inherent in the idea of the rule of law, but have instead proceeded on a sort
of “I know it when I see it” autopilot. Unfortunately, possessing a more
nuanced understanding of the rule of law is still no guarantee of success on
the ground.
What does our de¬nition mean for practitioners on the ground, who are
working with local leaders to build and strengthen the rule of law in the
wake of military intervention? Our de¬nition describes the strategic goals
of the rule of law but does not tell practitioners how to achieve these goals.
A framework for combining the two must be developed “ a framework that
can help practitioners link ends and means more effectively.
We think a synergistic approach to building the rule of law can provide
such a framework, and we spell out this approach here in an abstract way.
Future chapters apply this approach to the varying challenges of building
the rule of law on the ground.
Synergism, in biological terms, refers to “the action of two or more sub-
stances, organs, or organisms to achieve an effect of which each is individ-
ually incapable.”64 This term captures important features of a constructive
approach to building the rule of law: it is ends-based and strategic in that it
aims to achieve certain clear overarching objectives or effects. It is adaptive
and dynamic in that it aims to build upon existing cultural and institutional
resources for the rule of law and move them in a constructive direction, but it
recognizes, at the same time, that the rule of law is always a work in progress,
requiring continual maintenance and reevaluation. It is systemic because it
emphasizes interrelationships between the various components of a func-
tioning justice system, highlighting the necessity of an integrated approach
to reform to achieve effects not possible by focusing on single institutions in
isolation.
64 The American Heritage Dictionary of the English Language 1233 (2nd College
ed. 1982).
81
WHAT IS THE RULE OF LAW?


Borrowing a term from biology is a useful way to remind ourselves that
building the rule of law is a profoundly human endeavor. Both the commit-
ments of leaders and perceptions of legitimacy among the broader popula-
tion will be critical to success. Indeed, an overly technical focus on reforming
institutions or on training and supporting state elites, and a failure to pay
suf¬cient attention to how ordinary citizens perceive and interact with them
or to understand the political stakes and interests of government of¬cials,
will undermine the prospects for achieving the desired objectives.
The word synergism has a theological meaning as well. Theologically,
synergism is a theory that both human effort and divine grace are needed to
achieve regeneration.65 Regardless of one™s theological views, this meaning
of synergism helps serve as reminder of the need for humility in efforts to
build the rule of law. Although thoughtful planning plays a critical role in
the success or failure of rule of law programs, there is art as well as science to
rule of law efforts, and not every factor can be planned or controlled. For all
our sophistication, our understanding of how societies develop and change is
still shallow. Despite the best efforts of interveners and local partners, larger
factors “ unexpected developments, timing, relationships “ are also at work
in the complex endeavor of building the rule of law.
Let™s unpack the three key features of the synergistic approach “ its ends-
based, adaptive, and systemic elements “ and explore their concrete impli-
cations for building the rule of law after con¬‚ict.

r First, the synergistic approach is ends-based and strategic. A “synergis-
tic” approach to building and strengthening the rule of law starts with a
clear articulation of strategic objectives. Improved institutions can help
to achieve certain aims of the rule of law “ such as securing law and
order, or protecting human rights “ but the institutions are not the ends
in themselves. At the very least, this insight means that reformers should
focus clearly on the ultimate goals of building the rule of law and resist an
overly narrow concentration on institutions alone. Keeping these overar-
ching aims in mind, practitioners can also ask what kinds of cross-cutting
programs are needed to advance their objectives in the face of existing
resources and obstacles. Particularly in post-intervention societies with
limited resources and fragile stability, some of these overarching aims
may be in tension: for instance, in societies that traditionally subordi-
nate women, emphasis on fundamental rights “ including the principle of
nondiscrimination “ may appear to be in con¬‚ict with the goal of achiev-
ing buy-in from local populations. This should not mean that practitioners
should abandon either their commitment to gender equality or their com-
mitment to local ownership, but it does require practitioners to recognize

65 Id.
82 CAN MIGHT MAKE RIGHTS?


that not all good things can necessarily advance equally together at the
same pace. Although in a developed legal system, these ends ideally should
be mutually reinforcing, achieving such a state can take decades.66
r Second, the synergistic approach is adaptive and dynamic. By this, we
mean that the “synergistic” approach recognizes the need to build on
what™s there and move it in constructive directions “ and we also rec-
ognize that the rule of law is never permanently “achieved.” It must be
continuously and creatively sustained.
The rule of law cannot be imported wholesale; it needs to be built on
preexisting cultural commitments. Using the cultural, political, human,
and material resources available, critical institutions need to be developed
and strengthened. Some basic functioning legal institutions are essential:
basic laws and law-making capacity, police, courts, supporting institutions
and legal professionals, and prisons. But institutions that don™t enjoy pop-
ular legitimacy, or that don™t build on solid cultural foundations, will not
be sustainable.
The emphasis on adaptive intervention encourages a focus on the per-
ceptions and needs of ordinary people, on the consumers of the law.
Interveners must be attuned to deeply rooted grievances that fuel con-
¬‚ict and also nurture grassroots demand for sustainable legal reform.
Those engaged in building justice systems also need to understand both
the appeal and the limitations of customary systems of dispute resolution
and how they can be adapted and moved in constructive directions.
By noting that the synergistic approach is also dynamic, we mean that
the rule of law is always a work in progress. New achievements create
new challenges, and efforts to build the rule of law must continuously
evolve as circumstances change.
r Third, the synergistic approach is systemic. A synergistic approach to
strengthening the rule of law takes a systemic and holistic perspective.
Appreciating how institutions intersect and operate as a system is vital to
designing effective and balanced programs for reform. Interveners need
to appreciate failures and challenges in the legal system as a whole. They
need to understand the interrelationships between the various components
and how they impact each other. They need to take a holistic approach to
reform, working toward a balanced development of the component parts
of a functioning legal system. The priorities in any given situation will
depend on the areas of greatest need, with the overall aim of balanced
and mutually reinforcing improvements.
Reformers also need to recognize that rule of law reform inevitably is
deeply political. On a micro level, reformers need to be savvy about the
particular political interests that are advanced, or impeded, by different

66 See Kleinfeld, Competing De¬nitions of the Rule of Law, supra note 50.
83
WHAT IS THE RULE OF LAW?


kinds of reforms. Whether police are being trained and empowered to
enforce the law, or judges are given additional resources, training, and
facilities, or legislators are assisted in drafting substantive legal codes,
rule of law reform involves the allocation of political power. There are
winners and losers in terms of opportunities, resources, power, and status.
Interveners need to be savvy about who they are promoting and about
who is likely to have an interest in sabotaging reform or moving it in
counterproductive directions.
Similarly, on a macro level, interveners need to understand the broader
political impact of building up state justice institutions and civil soci-
ety institutions. When interveners focus on state institutions, powerful
elites may acquire more effective tools to advance their own interests
at the expense of the weak if there is insuf¬cient governance reform or
inadequate mechanisms for accountability. When interveners focus on
civil society, they may risk inadvertently undermining fragile governance
structures by pouring resources instead into the nongovernmental sector,
which can be unaccountable in different ways.
Interveners need to be honest, moreover, about how politics enters into
their own reform efforts “ including which pet projects they advance,
which substantive laws they place priority on, and so forth.

To sum up, the synergistic approach to strengthening justice institutions is
explicitly strategic, adaptive, and systemic. This approach identi¬es and pur-
sues fundamental, overarching goals; works to adapt existing institutional
resources in constructive directions; addresses and develops critical linkages
and relationships among justice institutions; and appreciates how they are
embedded in, and function within, a larger political system. This approach
recognizes, moreover, that effective long-term justice reform must focus not
only on critical formal institutions, such as police, courts, and prisons, but
also on ordinary people and their urgent needs; it must include effective local
participation in decision-making, recognize the inevitable political impact of
reform efforts, and take seriously vital cultural foundations for strengthening
the rule of law.
The chapters that follow this discuss the many practical challenges asso-
ciated with building the rule of law, from creating adequate governance
blueprints and reestablishing security to strengthening legal and judicial insti-
tutions and creating a cultural commitment to the rule of law. Our proposed
de¬nition of the rule of law and our focus on the synergistic approach re¬‚ect
the unavoidable complexity of the project of building and sustaining the rule
of law. Successfully building the rule of law in troubled, post-intervention
societies requires interveners to keep many balls in the air at once, while
struggling with coordination issues, resource constraints, and a host of other
challenges.
84 CAN MIGHT MAKE RIGHTS?


This will always be a project fraught with dif¬culties. Building the rule
of law will never be easy, and complete success may not even be possible in
many situations. But while there is no silver bullet, our pragmatic de¬nition
of the rule of law and the synergistic approach that accompanies it offer a
framework for sorting through the thorny and recurring problems that face
all rule of law projects.
CHAPTER FOUR




Blueprints for Post-Con¬‚ict Governance




In most of the cases studied in this book, interveners have felt compelled to
press for some set of political and institutional arrangements that will enable
them to leave the country in which they have intervened in better political

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