Few issues elicit the same global consensus as the importance of the rule of law. From establishing basic security in conflict zones to promoting economic development to supporting democracy and human rights, the rule of law clearly plays a central role in many of the world’s most pressing challenges. It is thus no surprise that governments and international organizations spend billions of dollars working on various aspects of rule of law assistance. Yet despite this enormous effort and years of experience, rule of law programming remains one of the most difficult and frustrating areas of international development work, with few best practices established.
The Carnegie Endowment hosted a roundtable discussion of rule of law practitioners from several development organizations and U.S. government agencies to discuss the state of the rule of law field and mark the launch of a new book by Rachel Kleinfeld, Advancing the Rule of Law Abroad: Next Generation Reform. Kleinfeld, a nonresident associate at the Carnegie Endowment, is also CEO and President of the Truman National Security Project. Carnegie’s Thomas Carothers moderated.
Kleinfeld said that rule of law assistance needs to move beyond its traditional focus on building formal justice institutions in developing countries and instead address:
- State-Society Relations: The rule of law is not a collection of institutions, said Kleinfeld. It is fundamentally about the relationship between state and society. Formal rules and institutions are important to the extent that they shape that relationship. Participants agreed, with one noting that programs need to move away from predetermined end goals to engage with local political economy.
- Power Structures: Assistance programs should examine the underlying power relationships and focus on building horizontal and vertical accountability mechanisms and checks and balances rather than picking winners, argued Kleinfeld. Unless programs are getting at the basic power structure, they are unlikely to have a lasting impact, she added.
- Cultural Change: People are wary of discussing culture, but changing state-society relations requires a change in society, Kleinfeld said. If citizens do not accept the legitimacy of the state or if honor codes supersede formal laws, individuals are unlikely to respect the rule of law. One participant also noted that pressuring governments to undertake legal changes, such as expanding minority rights, is likely to face strong pushback if the new laws do not win societal acceptance.
- Local Demand and Needs: International rule of law assistance programs come in as outsiders dealing with issues of local culture and politics, Kleinfeld said, and they need insiders who share their goals. Without host country buy-in, even the best designed programs are likely to fail. Programs need to pay more attention to local demand and the justice issues that most affect people’s lives, she continued. Some of these issues may be outside the formal justice sector, such as inequality in service delivery, added one participant.
- Do No Harm: Rule of law programs can have negative side effects and sometimes do more harm than good, Kleinfeld said, and programs need to be constantly aware of their impact on recipient societies. For example, programs may syphon off the best-trained lawyers from their work in local institutions or might pressure the executive to bypass parliament in order to pass legal reforms, actions which could ultimately undermine rule of law objectives.
Reforming Aid Delivery Mechanisms
Participants agreed that a new generation of rule of law assistance requires a different model for delivering assistance that emphasizes:
- Flexibility and Commitment: Programs need more flexibility to respond to local circumstances and to take advantage of windows of opportunity, Kleinfeld and participants agreed. They also need longer time-frames in order to promote significant change.
- Staff Capacity: Development programs should train their staff to think in terms of power rather than formal rules, Kleinfeld said, and should recruit more social scientists. Several participants agreed, noting the value of involving social anthropologists and other local specialists in program design.
- New Tools: In addition to traditional assistance programs aimed at justice institutions or civil society organizations, rule of law practitioners should make better use of the tools of diplomacy, said Kleinfeld. For example, the European Union’s use of enmeshment and the membership incentive as a way to advance rule of law reforms in candidate countries often proved successful. The United States could do something similar with organizations like the WTO and NATO, she added.
Obstacles to Progress
Participants agreed that while reform in rule of law assistance is necessary, it is very difficult for a number of reasons.
- Results Pressure: Development practitioners face increasing pressure to demonstrate short-term results, which works against taking a more flexible and long-term approach. The current budget environment also means there is little appetite to develop new types of programs or take risks.
- Institutional Inertia: Aid institutions are set up for traditional rule of law programming and not well adapted to carry out more flexible, long-term programs. One participant noted that the United States arrives in countries with a predetermined menu of rule of law programs to offer, which are backed by U.S. offices and resources dedicated to these specific types of work, such as judicial training or civil society assistance. But this menu does not always take into account what is needed on the ground.
- Counterproductive Foreign Policies: The United States and other bilateral donors may have good rule of law assistance programs in a country, but if their foreign policies appear to go against the rule of law, for example by selling arms to a corrupt government, it will hurt their credibility and undermine the lower-visibility assistance efforts, participants added.