Krygier, Martin; Mason, Whit --- "Violence, development and the rule of law" [2008] UNSWLRS 8

Last Updated: 4 September 2008

Violence, development and the rule of law

© Martin Krygier, Whit Mason

Plenary address to the Global Development Network’s Ninth Annual Conference: “Security for Development: Confronting Threats to Survival and Safety”, Brisbane January 2008

Abstract

Our world affords no starker contrast than that between societies where peace generally prevails and those where violence is commonplace. The former are generally blessed with the rule of law; the latter cursed by its absence. Societies where the rule of law prevails offer an open field for the pursuit of dreams, while those where the law of the jungle rules are crowded with continual nightmares. Anyone who has spent time in both kinds of places can describe her own feelings in a way that will capture much of what is important about the differences between them. And yet, when it comes to accounting for these differences, still more doing something about them, our ignorance is quite astounding.

Our topic, therefore, could hardly be a more harrowing one, both intellectually and practically. We will begin with a sketch of how the rule of law is viewed by those currently attempting to generate it, typically where it has been conspicuous by its absence. Partly in light of the hollowness of many of the institution-focused efforts that have predominated in the field of rule-of-law reform over the past 20 years or so, and partly on theoretical grounds, we will advance two underlying principles of an alternative approach. We will then attempt to describe some of the features essential to rule-of-law societies and the conditions that foster or at least allow them to evolve. Finally we will discuss some of the considerations basic to any attempt to move from circumstances pervaded by internal violence to a political and social order characterised by the rule of law, civility and peace that is a precondition for most other desirable features of life.

INTRODUCTION

Our world affords no starker contrast than that between societies where peace generally prevails and those where violence is commonplace. The former are generally blessed with the rule of law; the latter cursed by its absence. Where the rule of law is strong, people can go about their business without constant fear of predatory behaviour, either from the state or their neighbours, it makes sense to contemplate cooperating, even with strangers, on a routine and productive basis, and that commonly happens. To the extent that the rule of law counts in a society, citizens can obtain clear and shared understandings of their own and others’ legal rights and obligations and can have reasonable faith that the law will help to constrain and inform other citizens and officials, in ways both can rely on and predict in common. Both these aspects – prevention and facilitation – make possible many activities that are difficult and/or dangerous without them. But even if they didn’t lead to further specifiable political, economic and other consequences, they are important goals in themselves. Lives are better for them. So the rule of law is an important goal for all modern, modernising and would-be modernising societies. It is indeed an ingredient in a civil society properly understood – that is, a society in which it makes sense to be civil rather than predatory or in constant fear of predation.[1]

Societies where the rule of law prevails offer an open field for the pursuit of dreams, while those where the law of the jungle rules are crowded with continual nightmares. Anyone who has spent time in both kinds of places can describe her own feelings in a way that will capture much of what is important about the differences between them. And yet, when it comes to accounting for these differences, still more doing something about them, our ignorance is quite astounding.

Our topic, therefore, could hardly be a more harrowing one, both intellectually and practically. If we make progress towards understanding what makes relatively peaceful societies run as they do, we will be that much closer to ending the brutality that haunts millions of people every day. Yet to do so will require us to extract from our knowledge of healthy societies and their histories lessons that were secret even to those who lived and still live them. Central among these secrets is how to generate the rule of law and what it is that makes its various attributes – institutional, political and normative – cohere as something that limits interpersonal violence within a given society to relatively rare criminal aberrations.

Though history is an important guide, however, we would not advocate trying to replicate most stable nations’ histories even if that were possible. Besides lasting centuries, most have been extremely bloody. Our challenge is to try to reproduce the finer fruits of long, often sanguinary histories in a compressed period of time and with minimal violence. Two features of our globalised era give us some hope of being able to shorten and pacify the process – the existence of models in widely varying cultural contexts, and the array of technologies that have collapsed distances and time in all areas of modern life. Combined with these, today’s reformers approach their task with a more focused sense of mission than virtually any of their professional forebears. That is potentially a blessing, though often in practice, as we shall see, a mixed one.

We will begin with a sketch of how the rule of law is viewed by those currently attempting to generate it, typically where it has been conspicuous by its absence. Partly in light of the hollowness of many of the institution-focused efforts that have predominated in the field of rule-of-law reform over the past 20 years or so, and partly on theoretical grounds, we will advance two underlying principles of an alternative approach. We will then attempt to describe some of the features essential to rule-of-law societies and the conditions that foster or at least allow them to evolve. Finally we will discuss some of the considerations basic to any attempt to move from circumstances pervaded by internal violence to a political and social order characterised by the rule of law, civility and peace that is a precondition for most other desirable features of life.

RoL by the numbers

The rule of law is so popular these days that there is little it is not called upon to do or to fix. The list is long and can be indefinitely extended, for it has become fashionable to believe, on arguable[2] but not insubstantial grounds, that it is a necessary means to achieve various ends beyond the rule of law itself. As Charles T. Call observes:

Among a plethora of development and security agencies, a new “rule of law consensus” has emerged. This consensus consists of two elements: (1) the belief that the rule of law is essential to virtually every Western liberal foreign policy goal – human rights, democracy, economic and political stability, international security from terrorist and other transnational threats, and transnational free trade and investment; and (2) the belief that international interventions, be they through money, people, or ideas, must include a rule-of-law component.[3]

This has two consequences: on the one hand, rule of law reformers try to develop the rule of law because these external ends are thought valuable; on the other hand, they do not consider those ends to be within their province. We do rule of law, that is, build the institutions that comprise the formal justice sector; economists, sociologists, and politologists do the other stuff, dependent though that is thought to be on what we have built. And specialised narrowing does not stop there. Even within the rule of law field, some people work on judges, others do police and security services. This balkanisation has doomed many otherwise thoughtful and well supported efforts to superficiality.

Firstly, and especially in the early years of deliberate attempts to build the rule of law ‘from the ground up’ (though in fact more commonly from the top down), rule of law reformers have tended to take what Carothers has called a ‘breathtakingly mechanistic approach’ based on the notion that ‘a country achieves the rule of law by reshaping its key institutions to match those of countries that are considered to have the rule of law.’[4] Remarkably, despite some notable exceptions,[5] many bureaucracies and the academics who service them continue to promote precisely the shallowly imitative agenda that Carothers derides.[6]

We believe that the ‘build them and they will come’ approach to legal institutions is misguided.[7] It confuses an abiding, precious, state of affairs, the rule of law, with particular and contingent means thought apt to achieve it, and then it elevates the latter as though they were the former. Nothing could be further from the truth. Law-constrained social relations are general, perhaps even universal, goods; particular institutions are merely attempts to attain them. They are worth trying if they work, but should be abandoned if they don’t. And what works will vary with time, place, circumstance, history, and current resources and particular challenges, all of which ideally would be known by those who design instruments to secure the rule of law. Not to distinguish means and ends is one of the deepest follies of institutional craftsmanship in general (well known in organisational theory as ‘goal displacement’). It is no less so in attempts to craft the rule of law.[8]

A second problem in rule-of-law promotion is that it is common for the left hand to be unaware of what the right hand is doing, and the consequences can be costly. Thus, 14 years after the collapse of the Soviet Union, the USAID-supported rule of law program in Georgia focused on the education and credentialing of lawyers. Though the project created a rigorous bar exam meant to weed out law graduates unqualified to practice, the project’s criterion of success was the number of lawyers produced – a single input into the institutional dimension of the rule of law in Georgia. Meanwhile, the US-backed government employed an array of extra-legal means to crack down on organised crime, earning gratitude from the crime-weary population but immeasurably distorting their embryonic notion of what it meant for the law to rule.[9]

In another instance of substantial effort yielding superficial results, in 1998 the Asian Development Bank committed $350 million to fund the ‘Access to Justice’ program in Pakistan, then the largest justice sector reform program ever supported by a development organisation. An assessment of the project noted that Pakistan’s judicial sector had been chronically under-funded, resulting in crippling backlogs and the widespread perception that the judiciary was corrupt and lacked independence. The project’s first phase provided on-the-job training for judges, study tours to Britain, Canada, Australia, the US and Singapore, consulting and software to improve courts’ efficiency, organisational reform, and computers. These efforts yielded a number of technical improvements visible only to those working in the courts. On the negative side, the courts remained under-funded, reflecting the ruling powers’ lack of interest in improving judicial capacity, and ‘the lack of visible linkage of the reform agenda to poverty alleviation and benefits for the ordinary person.’[10] Nine years after the program was launched, President Musharraf dismissed the chief justice of Pakistan’s high court for what were widely believed to be self-interested political reasons.

Unknown unknowns

It is hard to do justice, so to speak, to the inadequacy of such approaches. Even if they were based on sound understanding of the bases of the rule of law, they run up against the economists’ ‘theory of the second best.’ This holds that if in an ideal theoretical model a combination of factors and circumstances would produce a particular optimal result, but some of these factors are missing, you won’t necessarily achieve the next best result by simply seeking to maximise those of the stipulated factors that remain, in the circumstances that you have. All the more when we have such a poor idea of what the relevant factors actually are.

‘Aid providers know what endpoint they would like to help countries achieve – the Western-style, rule-oriented systems they know from their own countries. Yet they do not really know how countries that do not have such systems attain them.’[11] That is certainly a problem, and we will return to it. But it reflects a deeper ignorance: we do not really know how countries that do have such systems attained them.

One reason for this is that the presence or absence of the rule of law is usually overdetermined: so many things seem to have gone right in societies where the rule of law is strong, and so many things wrong in societies where it is weak, that it is hard to separate causes from effects.

It is fairly uncontroversial, for example, that the rule of law is comparatively strong in England, a rich country with ancient legal institutions and traditions, a legal profession of lineage and power, law-related practices that have developed over long periods, and a strong culture of legality that has seeped into the workings of most people’s everyday lives,[12] all interwoven and with little deliberate design to produce the results they have. To pluck out of this dense thicket of institutions, cultures, traditions, mores and practices, merely the formal rules or architecture of legal institutions is simply to pick at leaves.

This appears to be true of legal transplants too. We have rather thin answers to why the rule of law was so readily transplanted here with the criminals who settled Australia in the eighteenth and nineteenth centuries,[13] for example. Few experts were on the job, after all, and most had other things on their minds. Moscow and many other places since the late twentieth century, beneficiaries of advice from vast teams of rule-of-law specialists who appear to think about nothing else, have exhibited somewhat less success.[14] Neither the reasons for success nor for failure are self-evident.

It must be somewhat disconcerting to professional rule-of-law promoters that most of the greatest success stories of the rule of law owed nothing to them. No one designed such successes from the ground up; typically they were inherited, occasionally tinkered with and at least once, in the United States, tinkered with greatly and to great effect. Their rule of law was not a grand rationalist program of institutional design, but what the philosopher Michael Oakeshott has called the ‘pursuit of intimations’[15] of existing, sometimes very old, traditions. That is far from the only way that institutions can develop, but a society is very lucky indeed when it has good institutional intimations to pursue. Most societies in which interpersonal violence is endemic have not been so lucky.

1. WHAT YOU HAVE WHEN YOU HAVE THE RULE OF LAW

We begin with two general propositions that we believe hold true wherever and whenever the rule of law is found. They frame all we say, and they should be stressed, since discussions about export and import of the rule of law too often proceed without any general framing principles or context. This lack of ground has often accounted for the fruitlessness of well-intentioned efforts and the disappointment now readily apparent and growing in the literature of rule-of-law promotion.[16]

The first is that the rule of law is, in the first instance, better understood as a state of affairs, with complex, multi-layered elements of various provenances, rather than any particular set of institutions. It is ‘a contingent reality, real insofar as certain things go on’, to borrow a phrase from another author and context.[17] You have it insofar as some things, such as legally constrained and channelled social relations, routinely occur more, and others such as lawless behaviours, among them violent behaviours, routinely occur less.

This is a point particularly apt to keep in mind, for restraint upon interpersonal violence was a goal much closer to the core of traditional conceptions of what the state of affairs known as the rule of law includes than those, such as democracy and economic development, more commonly emphasised today as what the rule of law is hoped to deliver.

Secondly, while it is an oft-repeated and often empty banality to say that the rule of law can only be understood ‘in context’, this is true in a deep and textured sense that is far from banal but too seldom understood. Legal sociology tells us some relatively simple things about the contexts of state law that are as important as they are almost wilfully neglected by rule of law promoters, and indeed most lawyers. And not only the sociology, but also the politics, of the rule of law matter.

The nexus between interpersonal violence and the rule of law in the context of development encompasses a number of fields – redrafting legal codes, judicial reform, security sector reform, human security/protection – which in practice are virtually always pursued separately (‘stovepiped’ or ‘siloed’) and all too often thoroughly estranged from one another. The lack of congruence between this paper and any one of these areas of practice, far from undermining its practical applicability, stems from our argument that most aspects of a society – its balance of power, economic structure, family patterns, education, media, as well as legal institutions – are relevant to the degree the rule of law prevails within it. Since these interconnections are unseverable, anyone interested in introducing the rule-of-law should take them more seriously than many rule of law reformers have hitherto.[18]

A state of affairs

We want to argue that what Carothers calls ‘the elusive essence’ of the rule of law is not simply a set of institutions, regardless of how wisely they incorporate customary law or otherwise take account of contextual factors. It is, rather, a set of relationships of which the essence lies as much in the balance among the elements as in the elements themselves. Rule-of-law societies, those characterised by the mother of all other social virtues, freedom from the violence of anarchy or despotism, depend not on virtuous institutions nor on virtuous people per se but on virtuous relationships among people. These in turn depend upon a lot besides the law.

The idea of the rule of law long predates its current evangelists, and what its many generations of proponents have thought important about it differs from contemporary packages or menus in two significant respects. The first is that until recently it has been much easier to glean overlapping understandings of the state of affairs that the rule of law represents than it is to find a specific and agreed recipe for producing it. When Aristotle spoke of it being better to be ruled by laws than by men, he was saying something important and enduring, but the details of whatever particular model or formula he may have had in mind have ceased to interest us. And whatever institutional arrangements were thought to represent the rule of law over the long English rule-of-law tradition, they have varied greatly over time and many bear little resemblance to anything we would identify with the rule of law today. Yet to speak of such a tradition is to point to something of deep social, indeed civilisational, significance. As a matter of public ideology and practice, law counted as a restraint on ways in which power could be exercised, much more than it has in many other societies with a less robust commitment to the rule of law or, as often happens in violent societies, a commitment to the absence of the rule of law. In all three sorts of societies, however, there were usually plenty of institutions having to do with law, broadly defined.

Secondly, and of particular importance for our theme, the alleged virtues of the rule of law, though greatly prized by its partisans, were once less promiscuously strewn about than they are today. Or, to put the point another way, seen as a state of affairs, the concept of the rule of law included a particular end state: restraint on the possibilities of unruly – arbitrary, capricious, despotic, wilful and unrestrained – exercises of power. What further goals that end state might serve has been disputed and varied over time and in different societies. But whether or not one thought that the rule of law was good for the economy or democracy or human rights, no one doubted that you didn’t have it unless law was able to serve as an effective constraint on the possible ways in which power could be exercised.

As many thinkers have realised, the stakes are high. Thus, as the philosopher Judith Shklar glosses the thought of Montesquieu on this subject, his ‘whole scheme is ultimately based on a very basic dichotomy. The ultimate spiritual and political struggle is always between war and law ... The institutions of judicial citizen protection may create rights, but they exist in order to avoid what Montesquieu took to be the greatest of human evils, constant fear created by the threats of violence and the actual cruelties of the holders of military power in society.’[19]

What most classical accounts of the rule of law have in common, then, is less a particular enumeration of institutional measures than something like this: the rule of law exists insofar as law can and does make an effective contribution to restraining the possibility of unruly exercise of power, whether by the mob or the state. The rule of law or its parallel (though not equivalent)[20] concepts in various languages - Rechtsstaat, état de droit, stato diritto, państwo prawa, and so on - has been a central element in the solution proposed, again and again, to two questions – what to do about unruly peoples (Thomas Hobbes’s question) and what about unruly states (John Locke’s question). Insofar as a given society has successfully answered those questions, there we have the rule of law.

That is what we have in mind, too, when we say that a country is blessed with the rule of law or cursed by its absence. An escapee from Haiti to the United States, or Timor Leste to Australia, may know little about its institutions, but she is likely to understand that there is more of the rule of law in her place of arrival than that of departure – and indeed to be moved largely by this difference to risk life and limb to leave her homeland for a strange new country. In this sense, the rule of law is to be valued not merely for what else it might deliver (which it might or might not), but for itself.

It is also connected to other goods, not merely, to use Amartya Sen’s distinction, causally, that is in that it might or might not lead to other good sorts of development, but conceptually, in that, like a ‘typical summer’s day’, a well developed and civil society properly understood includes the rule of law among its many constitutive and inextricably interconnected elements.[21] As Sen puts it, ‘We cannot very well say that the development process has gone beautifully even though people are being arbitrarily hanged, criminals go free while law-abiding citizens end up in jail, and so on. ... Legal development is constitutively involved in the development process ... even if legal development were not to contribute one iota to economic development ... even then legal and judicial reform would be a critical part of the development process.’[22]

Given the concern with reliable constraint and channelling of the exercise of power, an overarching concern of writers on the rule of law and allied concepts over centuries of discussion has been how to institutionalise these things. The answers have been many. The notion of constitutional restraints, for example, existed for centuries before anyone thought up a binding and written constitution in the 18th century.[23] Now almost everyone has one, and it is typically taken as a necessary condition for the rule of law (with the small embarrassment that the United Kingdom, scarcely an also-ran in the rule-of-law stakes, has never had one). Roughly similar comments may be made of a bill of rights: Australia, which also does not do especially poorly in protecting rights, still has no such bill. Enshrining separation of powers, and generally the principle that powers need to be balanced by other powers, have also been popular. And, as we shall see, many other stratagems have been tried. Our only point here is to stress that those stratagems are merely means to a valuable state of affairs, the rule of law, and they are means of a special, complex sort. The means of the rule of law cannot be manufactured, pre-wrapped and exported. They must be assessed in terms of their proven ability to serve its ends in concrete social and historical circumstances, with the understanding that means well adapted to some societies might fail or have unanticipated consequences in others, and that many may not travel well at least without considerable adaptation.

Law in Society

Answers to what the rule of law requires in particular circumstances, then, will be far more particular, contingent and variable than answers to why anyone might want it. History, existing social, political and legal institutions, culture and structures will affect what aids achievement of even a universal goal in a particular time and place.[24] Moreover, and this is our second principle, these answers will need to look well beyond legal institutions, since many of the conditions of effective, restraint on unruly power lie embedded within extra-legal, social and political structures and cultures, as indeed do the institutions of law themselves.

This is not merely to repeat the common mantra, still however worth repeating, that context matters. We can say more about legal contexts than that. The bottom line, even when all institutions have been imported and officials trained, retrained and equipped, is that to be more than purely decorative, the rule of law requires the law to count, which in turn requires that it be widely expected and assumed to count, both by those who exercise it (which, where citizens make use of the law, should be far more than just officials) and by those affected by its exercise. What is involved when the law counts is a complex sociological question on which the law bears. It is not in itself a legal question, for it depends as much on characteristics of the society and polity as of the law, and on their interactions.

What does it mean for law to count in a society in such a way that we feel confident in saying that the rule of law exists there? All the questions asked in this paper have a sociological dimension, this one above all. It asks about the social reach and weight of law, and the answers, whatever they are, will have to attend to questions of sociology and politics as much as of law. Indeed, social and political questions are central to the place of law in a society, and they will be answered differently in different societies, whatever the written laws say or have in common. This is not because the law has no significance, but because the nature and extent of that significance cannot be inferred from the law itself.

Where the law really does count, when the law is socially and politically significant, the legal position will bear closely on the factual position and the hour of the lawyer is at hand. But that is only because what lawyers don’t know, the conditions of legal effectiveness, gives significance to what they do, the law. When those conditions are lacking, lawyers’ talk is beside the point. For if no one is listening, it doesn't matter too much what the law is saying.

Legal philosophers usually mention that the law must be effective, but that merely hints at the complexity of what the rule of law depends on: far greater complexity than is needed for a merely effective legal order. Guides for rule of law practitioners[25] talk of the need for a culture of legality. However effectiveness is a rather black box, whose contents are not obvious. Moreover, as we shall see, culture is only a part of the extra-institutional infrastructure that a society depends upon for the rule of law to be in good order. It depends on many things beyond culture to be in good shape, even while those things themselves are affected by the cultures in which they develop.

The rule of law is manifest in the extent to which legal institutions, concepts, options and resources frame, inform and support the choices of citizens. This can occur, and vary, in several ways. Though direct recourse to legal institutions is the most obvious way, it is not the most important, since in no society does more than a very small fraction of law-related behaviour, even of law-related and law-affected disputes, ever reach those institutions;[26] ‘courts resolve only a small fraction of all disputes that are brought to their attention. These are only a small fraction of the disputes that might conceivably be brought to court and an even smaller fraction of the whole universe of disputes.’[27] It is a socio-legal truism, which still escapes many lawyers, that the importance of legal institutions is poorly indicated by the numbers who make direct use of them.

More socially significant than most citizens’ generally rare direct invocations of official channels is the extent to which they have, are able and are willing to use and to rely upon legal resources as what legal sociologists identify as cues, standards, models, ‘bargaining chips’, ‘regulatory endowments’, authorisations, immunities, in relations with each other and with the state, as realistic (even if necessarily imperfect) indicators of what they and others can and are likely to do. These endowments, in turn, are not merely gifts from the institutions; they depend upon ‘the capabilities of actors to receive, store and use them, capabilities that reflect their skills, resources and opportunities’.[28] These capabilities in turn ‘are not immutable qualities intrinsic to the actors [but] derive from, and are relative to, structures of communication and structures for organising action. Capabilities depend, for example, on location in a network that carries information about rights and remedies and on proximity to remedy institutions or ‘exit’ alternatives. The process of distributing and extracting endowments is framed by the larger structures of social life. As these structures undergo change, the character of the centrifugal flow of effects from the courts will change too.’[29]

The primary impact of such institutions is not, then, as magnets for the very small proportion of disputes that ever come to them in any, even the most legalistic, society, but as beacons, as it were, sending signals about law, rights, costs, delays, advantages, disadvantages and other possibilities into the community. In some societies these signals don’t work or are dim. In others, citizens see no reason to heed them. In many, citizens have no reason to heed them. But even when these signals are bright and visible, and people take them seriously, they are not the only ones that are sent out or received in a society. They compete with other signals, some of them brighter and much closer to home, sent by social networks in which people are embedded. In turn, the receivers are not a single entity or homogeneous group but plural, different, self-and-other-directed, within numerous, often distinct, sometimes and in some respects overlapping, ‘semi-autonomous’ groups which affect them, often deeply.[30]

Moreover, these groups are not merely mediators of signals from the central justice institutions; they do a lot of ‘law jobs’ themselves. This is true even in the most modern societies with highly developed and effective legal orders. In them, and a fortiori in societies less well endowed with effective official law, ‘[j]ust as health is not found primarily in hospitals or knowledge in schools, so justice is not primarily to be found in official justice-dispensing institutions’.[31]

In all societies, then, even the most highly law-abiding, the significance of law for those who receive it is commonly very different from the imaginings of those who send it. This is all the more likely to be the case where law is sent, as it so often is in societies beset by interpersonal violence, into disputed and hostile territory.

Stephen Holmes once remarked[32] that a production technology is easier to transplant than an interaction technology, a pithy summary of the core of this paper. And even with this caution, the metaphor of technology simplifies the problem. For as Frank Upham has observed of those professing the ‘new rule-of-law orthodoxy’, ‘law is seen as technology when it should be seen as sociology or politics.’[33] Our previous remarks in this section have been sociological in the main, but – particularly in countries where interpersonal violence is pervasive – politics are key. While it is true that law is always and everywhere mediated, refracted, transformed, and often resisted and rejected, by the semi-autonomous fields it must penetrate to affect, it is also true that not every group has the same power as every other. A comment made by Holmes about Russia has resonance in this connection everywhere, but particularly in the context of countries in the throes of internecine strife, where governments are often weak:

Foreign legal consultants and experts report the greatest rate of success (that is, their advice is swallowed whole and the laws they draft are actually passed by parliaments) in societies where law is virtually unenforced. This is natural. In any relatively free society, powerful domestic forces will be indifferent to the content of unenforced legislation. Where laws are not enforced, legislative drafting can be donated as an amusement park for foreign lawyers. (I once met a lawyer sitting in the lobby of the IMF who boasted: “I wrote the Civil Code of Afghanistan.”) By contrast, as soon as laws begin to be reliably enforced, powerful social forces have an incentive to put their stamp on legislation and to make sure that the regulatory framework functions to their advantage. This partiality of the supposedly neutral law to well-organised social forces makes Western legal development managers nervous. But it is a part of the legal-reform landscape that they ignore at their peril.[34]

The rule of law is a state of affairs, then, that prevails insofar as private individuals and state officials generally behave in ways that law affects, constrains, and successfully contributes to keep within civil bounds and without civil war. This behaviour reflects the largely unconscious attitude and expectation among ordinary people and state officials that they will be better off behaving in these ways than not. This attitude in turn reflects, though imperfectly, empirical realities – in particular the balance of power in their society as embodied by its norms and mediated by its social structures, networks and institutions.

All this depends on much beyond the official law, and so the rule of law is too important to leave to lawyers alone. Again, Sen gets it right: ‘Even when we consider development in a particular sphere, such as economic development or legal development, the instruments that are needed to enhance development in that circumscribed sphere may not be confined only to institutions and policies in that sphere.’[35] And, as he reminds us, ‘If this sounds a little complex, I must point out that the complication relates, ultimately, to the interdependences of the world in which we live. I did not create that world, and any blame for it has to be addressed elsewhere.’[36]

2. CONTEXTS AND ELEMENTS

What, then, are some of the features of a society in which the rule of law can be effective, and interpersonal violence is typically and routinely, restrained? The following elements are crucial, though the enumeration is not intended to be exhaustive, merely suggestive.

Civil society[37]

The phrase ‘civil society’ has become remarkably popular in recent years. No one will be heard to denounce it; instead people compete to find ways to praise it. The torrent of praise has both multiplied and obscured the term’s meanings. Without quibbling over alternative definitions, for our purposes a civil society is a society that is civil. The significance of the qualification ‘civil’ might be grasped by reflecting for a moment on societies where incivilities are rampant.

Uncivil societies generate and crucially depend upon the maintenance of a double moral standard, with sharp boundaries and an unbridgeable gulf in between: one standard for intimates and another for strangers. Such a rigorously maintained double standard cannot be a happy solution when a society contains more than a few non-intimates. One can of course try to kill them or drive them away – as in much of the former Yugoslavia, in Rwanda, East Timor and too many other places.

If such draconian options are unavailable, one can still be rude, hostile, suspicious and uncooperative. In many societies this is a reasonable option, even the only reasonable option, since in these societies there are few reasons to cooperate with strangers, many good reasons to be suspicious of anyone one doesn’t know well, and no good reason not to be. For obvious reasons, such hostility tends to be self-perpetuating.

This option was widely practised under despotically, if not fruitfully, powerful communist states, and it also occurs when states fail or where they never succeeded. A weak state, too, favours bullies and encourages pre-emptive hostility toward and distrust of others. In such conditions a market develops for entrepreneurs of violence and protection. That market is serviced by the original Mafia in southern Italy, and what are derivatively and appropriately called mafias in post-communist Russia. Similar markets boomed, though they were the only ones that did, among the warlords who roamed and terrorised much of the former Yugoslavia during the Balkan wars. As Michael Ignatieff observed in the war zone of Vukovar: ‘Every man goes armed. No one ventures beyond the village. No one trusts anyone they have not known all their lives.’[38] And, tragically but wisely, people distrust many people they have known all their lives.

Another social option altogether, somewhat rare, is for non-intimates to be civil to each other. No one will do this if the costs are prohibitive or the benefits illusory. A civil society is one which contrives to keep down the costs and spread the benefits, so that it is reasonable to be nice or at least not nasty.

In civil societies, routine non-predatory social relations can occur among non-intimates which neither depend upon love or deep connection nor – as is common in uncivil conditions – are fractured by their absence and replaced by suspicion, hostility, hatred or simple fear. Cool, civil connections are not the only ones that occur – nor should they be – but in the public realm the possibility of such connections is key to all the more positive attributes associated with developed countries. People have familial, ethnic, religious and linguistic attachments which often matter to them greatly and which differ; but they don't kill for them. Nor is it a realistic expectation that they might. Civil relationships are not especially close, and they are not hot like love and hatred. They are the character of relationships among members of healthy voluntary associations, not of close families on the one hand, nor of opposed troops on the other. They are ones in which the opposite of my friend is not my enemy but, say, my acquaintance or colleague or neighbor. I can do business with him, and I do not necessarily betray anyone by doing so.

Merely civil relationships are not worth dying for, but a society pervaded by civil relationships may well be. A civil platform is a secure place to stand. It is immeasurably preferable to its historically conjoined ‘other’ – fanaticism[39] – as it is to routine hatred, suspicion, hostility and vengefulness. Indeed, it seems to be the only situation that marries security and freedom.

In the political life of a civil society, even opponents inhabit a common, or at least overlapping, moral universe: competitors within some common frames of reference, however unspoken and superficially denied; they are not mortal foes. In civil polities, power is disciplined by institutions, among them law. As we will see, it is a mistake to think this necessarily weakens power. On the contrary, it can strengthen it in important and fruitful ways, while at the same time it channels, restrains, disciplines and limits the ways in which it can be exercised. In such circumstances, law too is a significant ingredient in the psychological economy of individuals’ lives. It can effectively communicate public signs of bounds within which politicians and people might with some confidence be expected to act. When they don’t, this is this the stuff of scandal, not normal operating procedures.

Elections matter in civil polities; many people are concerned but no one is especially scared. No one is killed or even worries about being killed, whatever the result. A prime minister in one such society (Australia, as it happens) publicly described his opponents as ‘vermin’ but they did not worry for a second about being exterminated; nor, when he lost an election to them, did he.

Perceptions

Political scientists and economists often talk about ‘collective action problems’; civil society and the rule of law are collective action triumphs. People must be persuaded to forebear from actions that could be advantageous to themselves, at least in the short term.

Individuals’ perceptions and expectations of their own societies are central to how they behave; if they believe themselves to be living in a Hobbesian world, they would be foolish to behave in other than Hobbesian fashion. Since Hobbesian conditions have been remarkably widespread, the existence today of societies that have escaped them testifies to the possibility, however improbable, of surmounting the prisoner’s dilemma inherent in being among the first to respect the law where heretofore the law had not been worthy of it. Overcoming this dilemma requires people to place their faith in the law and their fellow citizens’ respect for it or its enforcement mechanisms, or, more typically and reliably, in a combination of the two.

Expectations reflect the conditions in which people live, but only imperfectly so. First, expectations are largely self-fulfilling: those who lack trust in their fellows would be foolish to be trustworthy themselves. At the same time, in this regard as in many others people are adapted to past conditions, which may vary considerably from current ones. Together this means that people’s level of security will reflect their own behaviour based on their memories, perceptions or hearsay about dangers in the past. Kosovo Serbs living in the enclave of Grbavica, for instance, insisted that Albanians would beat them up if they so much as set foot in nearby Pristina. How could they be so sure? Because they hadn’t been there for years due to the danger.[40]

The questions, then, for those who would foster the rule of law in a developing society are: What is required for people to support and believe in the rule of law and what conditions foster such support?

The centrality of this question cannot be overemphasised. The touchstone for all those working to create the state of affairs known as the rule of law, should be the perspectives, expectations and attitudes of the individuals who make up the society.

Culture

Where could civil and lawful perspectives, expectations and attitudes come from? A common answer, in even the most enlightened treatments of this question, is ‘culture.’ Thus in their excellent book, Can Might make Rights?, Stromseth, Wippman and Brooks repeatedly and rightly stress 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.”[41] They devote a chapter to ‘creating rule of law cultures’, in which they emphasise that ‘the rule of law is as much a culture as a set of institutions, as much a matter of the habits, commitments, and beliefs of ordinary people as of legal codes. Insitutions and codes are important, but without the cultural and political commitment to back them up, they are rarely more than window dressing.’[42]

This is all true and important, and everything the authors say about how to generate a ‘rule of law culture’ is illuminating. The rule of law is bound up with all those fundamental aspects of a state and society that determine the extent to which it is rational for a person to behave civilly and within the law. But the rule of law cannot prevail on the basis of every citizen making a daily calculation of the relative merits of behaving legally and illegally and almost all of them concluding each time that it makes sense to remain within the law. Norms, routine expectations, common understandings and reactions that are ‘second nature,’ are all of crucial importance, and these are commonly encoded in and transmitted by culture. As Philip Selznick observes, ‘the rule of law requires a culture of lawfulness, that is, of routine respect, self-restraint, and deference’.[43]
Where institutions and rules of restraint are strong, a large part of that strength typically flows not directly or solely from the institutions and rules themselves, but from the traditions in which they were formed and from the culture which they themselves generated and which grows around and encrusts them, shaping the routine expectations of participants and observers. Moreover, the wider social efficacy of official law requires not merely that elites observe and seek to enforce it, but also that it enter into the normative structures which nourish, guide, inform, and coordinate the actions of ordinary people: people who do not merely comply resentfully when they feel they might otherwise be punished, but who comply happily (enough) even when they are confident they will not be.

If institutions and rules are to endure and take on strength, then they owe their solidity to to understandings and expectations – many of them borne by and grounded in cultural traditions within which the institutions and rules take on meaning and significance. These understandings, expectations and traditions in turn gain strength from their often invisible pervasiveness. Where thickly institutionalised constraints do exist – indeed, typically where they do their best work – they are often not noticed, for they are internalised by both the powerful and those with less power, as the normal ways to behave. Limits are not tested because people cannot imagine that they should be. The absence of such a predisposition makes the burden on those things within the control of the institutions and/or interveners dauntingly heavy.

However, notions of culture can mislead. This is particularly the case when, as often, culture is taken to be homogeneous, organic, slow-moving and inescapable. In a great deal of talk about the rule of law, ‘culture’ operates as a residual category, the bag into which everything apart from rule-of-law recipes is thrown, and to which cursory and usually ritual deference is given before the important ‘hard’ stuff is taken up. This simultaneously diminishes the significance of the specific items in the culture bag while exaggerating their imperviousness to change. For not everything that we assume to be ‘cultural’ is so, and, it should be observed, culture can change and be changed by forces and pressures not themselves elements of culture.

Were culture as impervious to change as is often imagined, we all may as well hang up our boots and watch events take their preordained course. But as one of us has written elsewhere, ‘Cultural sensitivity is not the same thing as cultural determinism. The former might encourage “piecemeal social engineering” which – in the face of some institutionalist enthusiasms – would be salutary. The latter is likelier merely to encourage despair. And when, as often in recent debates, culture is invoked as a kind of prime “unmoved mover” of the social world, there are reasons to share Hermann Goering’s reaction[44] to the term, though they are not his reasons.’[45]

Fortunately, culture is not so stubbornly autochthonous nor so determining. Much that we call culture – willingness to trust in the law, or its absence; expectations that the law will matter – flows from many other than cultural sources. It is embedded in social structures, networks, institutions, and the ways all of these operate and interconnect and, when they do, change. Sometimes people fail to rely on the state because of deeply embedded cultural distrust of, hostility to and alienation from the state. Sometimes they distrust it because it is untrustworthy, whether because it works in crooked ways or just fails to work. To categorise all this as ‘cultural’ is to homogenise it in unuseful ways, and to forget that often a lot more (and a lot else) than culture is involved and needs to be addressed.[46]

For example, observers typically attribute deference to heads of family to deeply engrained cultural values. In fact, in societies where such norms prevail, the heads of family normally control all resources, and those acting deferentially are heavily dependent on their seniors’ goodwill. Where this economic dependency changes, so, often, does the deference. In the mid-90s, the government of Singapore realised that many newly prosperous citizens were no longer taking care of their retired parents, as had been traditional among the state’s various ethnic communities. Singapore responded by passing a ‘filial piety’ law to compel its citizens to show their parents the regard that had previously been assumed to be automatic.[47]

Institutions

From the emphasis on civil society, perceptions and culture, a reader might infer that the current argument diminishes the importance of legal institutions. This is not at all the case. No society has such a perfect balance of power and such well developed norms that it can dispense altogether with institutions that punish violations of its legal order. Effective sanctions of violations are essential to preserve the credibility of a legal order. Without credibility, the law can play no meaningful part in the life of a community. With it, institutions can affect, and at times in salutary ways, civil society, perceptions, and also culture.

For the rule of law to prevail, it must resonate with people’s actual experience, the most important aspect of which is the shape of encounters between more and less powerful individuals and groups. If a group has demonstrated its impunity, no one in their right mind will ever use the law to try to challenge it. Similarly, if those who break the law can continue profiting from doing so, it would be foolish to try to compete with them while acting within the law. This was dramatically demonstrated when a man widely believed to be Kosovo’s leading smuggler approached an official of the UN mission there.[48] His representatives told the UN official that he would be willing to conduct his import business solely on legal lines, but only if the UN administration changed its regulation of the border to stop other smugglers and thereby prevent them from being in a position to underprice him.

Civilising power

The rule of law depends upon, as at the same time as it contributes to, civilising power, in both senses of that term. Power is needed to civilise society; anarchy is no picnic. But power itself needs to be civilised; for nor is tyranny. If states are ineffectual, there will be no rule of law and no civility. Non-state powers will fight or rule, and either way it will not be pretty. Likewise, if states are despotically powerful. States need to be able to constrain powerful non-state actors, but themselves be constrained, in part by the rule of law. States that are so constrained are simultaneously more effective in contributing the conditions of civil society than unconstrained states, and more limited in their capacity to foment incivilities of their own accord. They gain ‘the power to coordinate civil society, that is, infrastructural power’, just as they lose – and in crucial part because they lose – the ability to wield ‘power over civil society, that is, despotism’[49], to borrow Michael Mann’s important distinction.

There are many institutional and constitutional devices designed to constrain (without emasculating) state power,[50] but a general and primary condition of the constraint that underpins the rule of law and that it in turn underpins is a balance of power. Where power is so concentrated in a single individual or group that they can act with impunity, they will nearly always behave badly.[51] The need for a balance of power has been recognised since before the advent of modern democracy – in England after Magna Carta, in the estates of the realm in pre-revolutionary France, etc. Robert Dahl has persuasively argued that ‘polyarchy’ – the diffusion of power among a number of centres – is the essential basis of a liberal democracy.[52]

The formal separation of powers is not sufficient. Key to the substance of each branch of government’s actual power are the resources it controls and the regard in which it is held by the society as a whole. The peaceful ascension of the post-Islamist Justice and Development Party in the secular Turkish Republic, for instance, has been possible because of the enormous public support for both of the main contenders for power, the party and the army.[53]

But democracy – much less democratisation – in itself does not ensure a balance of power conducive to civility. Where power is concentrated in a large group, even a majority, which defines itself and its prerogatives in exclusivist terms, that group would still tend to impose its will on the rest in such a way that led minorities to live in fear and, if and when possible, to rebel.[54] (The threat of rebellion, indeed, is one of the limitations on the impunity of a majority or powerful minority.) People must have a basis for believing they can prosper without it necessarily being at another’s expense.

Overarching and overlapping ties

A crucial condition of civility, according to Max Weber, is the shift to a modern state structure where political power is non-arbitrary and state business is conducted by a bureaucracy whose members derive their authority from the offices they hold rather than the persons they are. ‘As a result the officials are appointed to their positions on the basis of contracts, their loyalty is enlisted in order to ensure the faithful execution of their official duties, and their work is rewarded by a regular salary and by the prospects of regular advancement in a lifetime career. Conscious orientation toward abstract norms and the depersonalisation of the exercise of authority tend to increase the stability of expectation under the rule of law.’[55]

The development of the norms essential to the rule of law requires complex interdependency, which enables plus-sum growth and both reflects and engenders identification with and a set of moral obligations to a community that extends well beyond one’s own relations and friends.

For civility to make sense, citizens must identify with their political community sufficiently to agree to pool a significant portion of their sovereignty – in particular the exclusive legitimate use of force – in its collective organs. The writ of a regime across a given territory depends not only on its formal political attributes but on its citizens’ identification with it. Anderson argues that people’s identification with those they will never personally meet depends on an elaborate cultural construction usually sponsored and at least endorsed by the state. Key contributors to the construction of the ‘imagined community’ include an educational system promulgating a state-centric view of history and geography, and national media.[56]

Identification with an imagined community also depends on not identifying exclusively with a single constituent part of that community. The perceived exclusion of people from the western side of East Timor from the higher ranks of its fledgling army was at the root of the rebellion that has derailed the country’s state-building efforts. Many other nation and state-building efforts around the world have been undone or hampered by regionalism (often underpinned by patronage networks).

3. PROCESSES OF TRANSFORMATION

The preceding parts of this paper have outlined characteristics of the state of affairs known as the rule of law, and what that state of affairs depend upon. In countries where the rule of law is strong and long-established, people regularly benefit from this state without understanding it. Things are different in countries wracked by interpersonal violence, where the challenge is to establish conditions in which the rule of law might come to count and, in time, help tame the sources of violence. What follows are some considerations relevant to taking up that challenge.

Before discussing the practical implications of the foregoing picture of what the rule of law entails, we must acknowledge the very different contexts in which rule-of-law reform activities are carried out. Building the rule of law while containing interpersonal violence is central to executive post-conflict interventions such as the UN Mission in Kosovo, as well as to non-executive post-conflict interventions, particularly when an armed insurgency continues, as in Afghanistan. It can receive a considerable investment of professional attention and have limited leverage over local institutions, such as the EU’s rule-of-law support mission in Georgia, or can involve a vast financial investment with virtually no influence over the implementation of its recommendations, as with the World Bank’s $350 million ‘access to justice’ program in Pakistan. What follows seeks to be as practically useful as possible without being specifically adapted to any single type of intervention. While these recommendations inevitably describe an idealised scenario, they derive from general truths about the rule of law and the conditions that influence the degree to which this rather rare state of affairs prevails in a given society. Most examples are from post-conflict interventions because it is in these situations that interveners have the most influence, making them the clearest measures of the consequences of the dominant approaches to reform.

Challenges

Much writing on the best practices in fiercely contested environments such as those in which security and rule of law reform typically take place is written as though interveners operate in a vacuum, and the only reason they wouldn’t already follow best practice is ignorance. (This attitude is embodied in such common practices as ‘human rights training’, as if those who lack respect for human rights are merely missing information, rather than holding attitudes that need to be changed through a judicious blend of coercion and persuasion.) For policy advice to be meaningful, both in the society concerned and within the interveners’ own institutional environments, it must take into account the factors that militate against the best course being chosen.

Societies where people don’t believe it behoves them to behave civilly towards one another are not, contrary to the premises implicit in many reform efforts, blank slates. However much they may vary, certain challenges will be common to virtually all of them. All lawless environments include individuals and groups who benefit from the status quo. Where a conflict has been long running, hardened insurgents may realistically feel that no legal pursuit, regardless of what political settlement might be achieved, could profit them as much as continuing their outlaw activities. Elements of the IRA, the Tamil Tigers and the PKK undoubtedly fall into this category. Such incorrigible spoilers have to be crushed. Many others, however, like the Kosovo smuggler referred to above, may be sufficiently pragmatic and integrated in the non-criminal world to look for opportunities to enjoy their ill-gotten gains in peaceful conditions only possible when the rule of law prevails.

The majority of people in uncivil societies are intimidated by predatory forces which they perceive as powerful and threatening, and have learned from experience to place little faith in whatever mechanisms in society are supposed to protect the weak. They have little trust in one another, apart perhaps from very small circles, and no experience asserting their rights or trying to help themselves in confrontations with the more powerful. Police working in areas with low social capital receive little cooperation. Particularly in cases involving organised crime, people will refuse to provide evidence, much less testify in court; the population’s lack of faith in the police’s ability to protect them thereby becomes a self-fulfilling prophecy.

The fearful majority will likewise be cynical about moralistic rhetoric, which they will have heard used and thereby discredited by even the most repugnant regimes. When interveners ask the population to believe that the rules of their society have changed, they are generally asking for blind trust from people who have been burned for as long as they can remember. People in a society where the law is struggling to become meaningful face a gambler’s dilemma: no one wants to be a chump – perhaps even a dead chump – by being among the first to place his faith in a shaky or nascent legal order.

In the face of such daunting hurdles, how can interveners, whether in an executive or purely supportive mode, help to create the conditions for what we call the rule of law? The process must go something like this. First, create a balance of power so that any act of brutality would exact a high cost for the perpetrator. Crucial elements in this balancing process are fostering cross-cutting identities, so that any given individual identifies herself as a member of more than one group,[57] and changing the calculations of potential spoilers. Simultaneously, prepare institutions so when they are called on, they will perform and justify the interveners’ own claims about them. Next, contrive situations in which to induce a leap of faith in the emerging order and institutions by a critical mass and/or persons of exceptional influence. Finally, reward the leap of faith with good institutional performance and overall outcomes. For example, opium farmers in Afghanistan or coca farmers in the Andes will not be filled with confidence in the legal order if the police do a consummately professional job eradicating their crops and protecting them from drug lords, but the government then fails to help them move into equally remunerative livelihoods.

Of course, this is all easier said than done. Undoubtedly, every society that has moved from Hobbesian to civil conditions has gone through some such process, but such processes themselves create instability. Huntington cites a plethora of strong statistical correlations to support his argument that ‘modernity breeds stability, but modernization breeds instability.’[58]

Social mobilisation contributes far more directly to instability than does economic development. ‘Urbanisation, increases in literacy, education, and media exposure all give rise to enhanced expectations which, if unsatisfied, galvanise individuals and groups into politics. In the absence of strong and adaptable political institutions, such increases in participation mean instability and violence.’[59] The potentially destabilising mechanisms of social mobilisation are also the primary levers for managing expectations and making change coherent. This overlap reinforces the need to harness these mechanisms to a narrative of transformation that resonates with people’s experience. While this seems obvious, in practice development efforts all too often generate expectations before creating the institutions necessary to make good on them.

Roland Paris makes a similar argument about the destabilising effects of democratisation. Instability arises from mobilisation outpacing institutional development, creating a gap between expectations and the means even to attempt to satisfy them. Governments are often tempted to invest in education at an early stage of development efforts because this is perhaps the most potent tool for change under the government’s direct control. Rapid advances in education, however, are often not matched by available jobs for new graduates. This mismatch creates a pool of frustrated young people who are all the more potentially threatening for being educated. The point is not to short-change education, but to ensure that progress in this sector is accompanied by commensurate expansion of employment opportunities and a narrative that helps people make sense of and navigate their changing landscape.[60]

Marking change

In many societies undergoing rule-of-law reform, the legal codes have been discredited by association with authoritarian or predatory regimes. Rather than guarding the continuity of law, which in healthy conditions helps ensure that change is incorporated into people’s norms and understandings of their social compact with one another, interventions are often better off drawing a sharp line under the discredited regime by drafting new legal codes.[61] The move afoot in the UN’s Division of Peacekeeping Operations to draft uniform criminal and civil codes to be used in all post-conflict environments will greatly facilitate making clean breaks with discredited law, but also increase the challenge of persuading the people affected to regard it as embodying their values and defending their interests.[62]

Institutional impediments

The nature of politics in donor countries and of development bureaucracies also militates against implementing best practice. Short electoral cycles and even shorter budgetary cycles drive interventions to focus disproportionately if not exclusively on those tasks that might be achieved quickly. This institutional bias in favour of short-term thinking is generally reinforced by the pressure of events on the ground, combined with the bureaucrat’s tendency to avoid disaster more assiduously than he pursues achievement. The result, likewise prevalent in other organisations, is that the urgent generally overtakes the important.

Institutions’ (and often nations’) understandable desire to be given credit for their work impinges not only on time, but also on operational space. Agencies or offices working in distinct but obviously closely related areas often make only desultory efforts to coordinate their work with their supposed partners, even when they’re from the same country. The US Agency for International Development’s new development strategy for Pakistan’s tribal areas, for instance, was developed without any meaningful coordination with the US military that is supporting the Government of Pakistan’s counterinsurgency strategy in the same area – largely because of institutional rivalry and conflicting organisational cultures. While largely ignoring the counterinsurgency campaign, the strategy also entirely overlooks the political disenfranchisement at the heart of the region’s estrangement from Islamabad. Political issues were excluded from the strategy because the drafters’ terms of reference didn’t include them; political issues were excluded, in turn, because the Musharraf regime had welcomed financial support from the US and other donors but rejected interference in how it dealt with the tribal area. As a result, USAID will pour $750 million into building infrastructure and institutions, the Department of Defence will spend however many millions on counterinsurgency and no one will address the region’s very obvious political grievances.[63]

The preoccupation with quick achievements and guarding turf can sometimes stymie an activity altogether. The UN Mission in Kosovo, for example, never had a unit devoted to conflict resolution because donors felt its work would take too long for it to show results, and none of the institutions involved wanted to let any of their rivals take charge of such an important activity.[64]

Two massive efforts combining development, limiting interpersonal violence and creating the rule of law – the international interventions in Kosovo and in Afghanistan – both failed to rise to most if not all of these challenges. Though one may argue that they are extreme examples, the high level of attention and investment in building the rule of law that both have received make them paradigmatic of current practice.

Kosovo

In 1999, the international community intervened in Kosovo – first in the form of an aerial bombing campaign by NATO, then through a multidimensional administration with a Security Council mandate to run Kosovo day-to-day, build up the structures for substantial democratic self-governance, and prepare to hand over to local control. The trigger for intervention was the Serbian security forces’ killing and abuse, and later mass displacement of Kosovo’s Albanian majority. Implicit in the intervention was the goal of transforming Kosovo from the violent, predatory society it had been into one in which all its people could live in security and dignity.

From its inception, the UN Mission (UNMIK) and its multinational military counterpart (KFOR) failed to establish the credibility essential to suppressing interpersonal violence and fostering the rule of law. Pretensions of even-handedness were discredited from the beginning by KFOR’s failure to prevent the pressured exodus of over half the Serbian minority and the persecution of those who remained. Among the Albanian majority, the interveners inadvertently fostered an aura of impunity around those with physical power, both former militants and organised criminals (many belonged to both groups). KFOR soldiers, who for months were the only significant security presence on the ground, were ill equipped and trained for preventing attacks on individuals or small groups, much less for investigating crime, making arrests or managing prisoners. Police were slow to deploy and for years lacked the forensic resources and investigative prerogatives necessary to combat powerful criminals and militants. Of those who were arrested, Albanian judges were pressured into acquitting well connected Albanian malefactors while prolonging the incarceration of Serbs on scant evidence. The culture of impunity was exacerbated still further by interference by key donor countries, notably the US, which directed UNMIK prosecutors not to pursue top militants-cum-criminals – thugocrats – for fear of provoking a popular backlash.[65] Six months into the intervention, UNMIK further discredited itself in locals’ eyes when it succumbed to pressure from Albanian jurists to reverse its original decision to use Serbian law of 1999, which locals regarded as tainted by association with Milosevic.[66] Later, UNMIK antagonised local jurists still further by imposing international prosecutors and judges to try the most sensitive cases. A lesson from Kosovo is that in a post-conflict environment, locals aren’t sufficiently insulated from coercion to be able to try sensitive cases effectively. It is better to employ internationals from the beginning and gradually shift authority to local judges and prosecutors than to begin unrealistically and have to demote a judiciary that is already established.

While failing to punish spoilers for flouting the law, UNMIK also failed to use ‘soft power’ mechanisms to persuade ordinary people to believe in and support the new legal order. The mandate that created the UN Interim Administration in Kosovo, UNSC 1244, left unresolved the underlying cause of the armed conflict - the question of who would rule Kosovo. Given this enormous handicap in building a sustainable peace, one might have expected the mission to use all available means - an intensive public information effort, sensitivity to the effect of various actions on public confidence, education reform, careful regulation of the media and various efforts to facilitate the non-violent resolution of disputes – to change the attitudes that had led to and resulted from the conflict.

In fact, though, efforts to win hearts and minds or to build public confidence in the new order were generally marginal at best. Education was among the first portfolios that UNMIK turned over to Kosovo’s provisional authorities. The local media, both Albanian and Serb, for their part, maintained a steady barrage of non-factual and unconstructive nationalist demagoguery from the very inception of the UN administration there.

More generally, the UN mission adopted a hands-off approach to political culture. In post-war Germany and Japan, educational reforms, control of the media and public symbols and propaganda were all used to foster pacific attitudes. ‘From the very beginning, UNMIK engaged the Kosovo Albanians and was particularly keen on establishing a close relationship with the potential “spoilers”, mainly including the former KLA leaders,’ explained Blanca Antonini, who in 1999 and 2000 was deputy head of civil administration in UNMIK. In practice that meant that KFOR and UNMIK were more concerned with placating those who opposed inter-ethnic tolerance than those few who supported it.

Reinforcing this anxiousness to avoid provoking violent elements, most of the occupiers regarded the local Albanian population as the aggrieved party in a one-sided conflict, and assumed that they would be well-intentioned partners in the territory's reconstruction. Operating from such assumptions, the international authorities naturally regarded measures to purge the media, educational system and public sphere of noxious influences as inappropriately intrusive. ‘The international community – and UNMIK in particular – did not have as a priority the question of culture, and made little or no effort to integrate the experience that both major communities in Kosovo had accumulated prior to the international intervention,’ said Antonini. ‘By failing to do this, it sidelined as irrelevant an issue of enormous sensitivity in the context of a conflict where the symbols of cultural identity were often more powerful than weapons.’[67]

On 4 September 2007, thousands of Kosovo Albanians marched in protest against the murder of a respected police officer, Triumf Riza, by automatic weapon fire in broad daylight in a busy part of Pristina. Though a young man arrested two days after the murder had confessed, he was widely believed to have been acting on behalf of a much feared mafia boss, Enver Sekiraqa. A commentary on the murder expressed popular disillusionment over the obvious impunity of well connected criminals:

The police should think hard about why they have not arrested hundreds of other criminals in connection with this – and other – murders, when they were racketeering, bribing and stealing. On the other hand, when the police prepare cases for trial, the courts often release the defendants. This apparent inability of the courts to convict the accused is, one fears, inspiring and encouraging criminals. I can only conclude that the judiciary has failed to deal with many of the “you-know-whos” in Kosovo. That was exactly the message coming from thousands of protesters who symbolically turned their backs on the Kosovo courthouse. It was an eloquent expression of the loss of their trust in the state of law, order and justice in Kosovo for which ultimate responsibility remains with the UN administration. But now and for the first time in Kosovo’s recent history, people are raising their voices against this weak and impotent judiciary. They are arguing that many people would still be alive if certain notorious criminals had been put behind bars.[68]

Afghanistan

The $10 billion international presence in Afghanistan, its purported aim to transform it from being a territory hospitable to international terrorists into one governed by the rule of law, has presided over its transition from a vicious pseudo-theocracy to a patchwork of fiefdoms run by warlords and disputed by Taliban insurgents, who in 2007 produced a record opium crop, up 34% from the year before.

Powerbrokers and warlords fill the police’s ranks with their own protégés and use it for their own predatory ends. From the beginning of the international intervention, the Afghan National Police was composed of ‘mid- and lower-level commanders who had seized the title of police chief in provinces and districts and incorporated their militias into the police after the Taliban’s fall’.[69] As international attention focused on building a new Afghan national army, ‘the interior ministry was left to become “the locus of interactions between state institutions and criminal interests ... Political influence (both from within and outside the Ministry) may be brought to bear to ensure specific appointments or to promote or prevent law enforcement interventions.”’ As the ICG commented: ‘One of the most disillusioning aspects for the population, and the root of the culture of impunity that has sprung up, is the Kabul centre’s propensity simply to transfer police officials when there are complaints. As a civil servant in Kunduz asked, “if food tastes bad in one province why will it taste better in another?”’[70]

Different areas of security reform in Afghanistan – police, army, disarmament, counter-narcotics and the justice sector – were divided among five different donor nations. ‘Rather than being treated as a whole, SSR became a series of discrete programs which moved at very different paces, with little coordination between them, including on matters where there was important substantive overlap.’[71]

In an effort to get ‘more boots on the ground’ to help fight the insurgency in the south, the Afghan government armed militias and labelled them ‘the Afghanistan National Auxiliary Police.’ One diplomat characterized the move as trying ‘to make a virtue of necessity’. Though wearing the same uniform as actual police, these auxiliaries received only 10 days training and remained loyal to their local commander. ‘Given complaints about police corruption and abuse, putting 11,000 men in police uniform with even less training is not the way to legitimise state institutions in the eyes of Afghans.’[72] Since most of these ‘auxiliaries’ are Pashtuns, Tajiks and Uzbeks in the north naturally question why they’re being asked to disarm even as their ethnic rivals are rearmed at state expense.

‘Internal policing and security strategies in Afghanistan do not stress fighting the crime against average citizens which often has a greater impact on their sense of security than the insurgency. Instead, many communities view the police as predatory.’[73] In the capital of embattled Helmand province, a mechanic told ICG that if paid off, the police will let a person free even if caught red-handed with explosives, but they won’t pay their bills for having their vehicles repaired. ‘Such behaviour not only alienates people but can also actively drive them to anti-government forces. The 1950 Police Commission to Malaya “viewed police corruption as a major source of the people’s dissatisfaction with the government. The many bad policemen served as some of the best recruiting agents for the insurgents.”’[74]

Themes and principles

Having railed against mechanistic approaches, we can hardly now promote formulaic ‘lessons learned’, especially given that we are addressing rule of law reform in general. But the nature of the rule of law as a state of affairs in which the balance among the elements is as important as the elements themselves, combined with what we know generally to be true of bludgeoned people and the destabilising effects of change, allow us to raise a number of principles that will be important to bear in mind in any conceivable effort to conjure the rule of law.

Address needs holistically

The need for efforts to promote the rule of law to be holistic is implicit in the rule of law being understood as a state of affairs, dependent upon the balanced contribution of a multiplicity of disparate elements. Legal institutions contribute to but also reflect the balance of power in a given society and the norms operating among its mainstream population. A holistic approach, therefore, requires far more than attention to the law, security forces and judiciary.[75] Power must be sufficiently diffused that no individual or group can act with impunity against any other, and norms, institutions and structures must be targeted to generate a worldview that places obligations to intimates and strangers on a moral continuum rather than in sharply differentiated categories. In practice, this means closely coordinating with others who may see little connection between their tasks and the rule of law, or, where these areas remain unaddressed, addressing them.

Put public confidence at the centre

It is difficult to overstate this. While many elements conspire to make the law rule in a given society, they are relevant only and precisely to the extent that they shape the attitudes, expectations and behaviour of the people in that society.

The response to the Malayan Emergency, in which the term ‘hearts and minds’ was first coined, remains a paragon of effective counterinsurgency and more broadly of efforts to return stability and the rule of law to a society where violent anarchy threatened. Shortly after his arrival in Malaya, High Commissioner Gerald Templer declared to his staff that the consistent observance of human rights and the rule of law is essential to a mission’s moral authority. ‘Any idea,’ said Templer, ‘that the business of normal civil government and the business of the Emergency are two separate entities must be killed for good and all. The two activities are completely and utterly related.’[76]

Templer ‘grasped immediately that circumstances required the actions of the Government to be broadened and that the population had to be won over, not intimidated, if the guerrilla war was to be successfully prosecuted ... In many ways, Templer acted more like a politician running hard for a second term in office than a general running a colony.’[77] Early in 1952 he wrote to a colleague: ‘The shooting side of the business is only 25 per cent of the trouble and the other 75 per cent lies in getting the people of this country behind us.’[78] In late 1952 the police launched ‘Operation Service’ to show the police as servants of the people. It was a huge success[79].

This point derives from his insight, conspicuously absent in Iraq where putative ‘democracy’ was expected to compensate for violence, looting, collapsed utilities and general mayhem, that ‘however powerful nationalist or religious forces may be, that of material wellbeing is as strong if not stronger’.[80] He goes on to stress that ‘without a reasonably efficient government machine, no programs or projects, in the context of counter-insurgency, will produce the desired results.’ This ‘reasonably efficient government machine’ would be conspicuously absent from occupations half a century hence.[81]

Robert Thompson, who spent twelve years in Malaya and eventually became Minister of Defence, codified a number of principles, including this: ‘The government must give priority to defeating the political subversion, not the guerrillas’.[82] The key is establishing the legitimacy of the government in the eyes of the general population. For ‘if the guerillas can be isolated from the population, i.e., the “little fishes” removed from “the water”, then their eventual destruction becomes automatic’.[83] Oliver Lyttelton, Secretary of State for Colonial Affairs, led a delegation to Malaya in December 1951. Lyttelton called for a review of the Government’s propaganda campaign, starting with the provision of public services on which, to be successful, all propaganda would have to be based. ‘We have to see that our philosophy opens up to the people of Malaya the prospect of a finer and freer life than that which our enemies are trying to instill.’[84]

In recent decades, interveners and development professionals working on fostering the rule of law have tended to behave like the old command economies of the communist world, creating whatever they choose and assuming the consumers, bereft of choice, will wear it. Though consulting with stakeholders has often been emphasised rhetorically, in practice, certainly in the area of rule of law and security reform, public input generally has been at best a secondary activity.

As a means of improving police accountability, the ICG report on police reform in Afghanistan suggests that ‘provincial police liaison boards, with civil society representatives’ could be created. Even in this thoughtful report, engaging the public is an afterthought. As usual, involving those most affected by security problems and efforts to ameliorate them is regarded as belonging to the ‘advanced course’, both in the sense that only exceptional members of the development community appreciate its importance, and in the sense that engaging the people most affected is stressed, if ever, only at a late stage in the reform process.

Consulting widely and deeply with representative members of the community affected by rule of law and security reform is the most efficient way to measure shifts in power and credibility of institutions, and the only way to account for the inevitable gap between objective circumstances and subjective perception. Doing this effectively requires a faculty too little exercised by those driving social change, empathy or what Mills called the sociological imagination.[85] But even the most brilliant exercises of sociological imagination are no substitute for a far less ambitious activity: listening.

Confront or co-opt spoilers early

Where the law doesn’t rule, thugocrats do. Discussions of development, even in the most nakedly predatory societies, often proceed as if extreme underdevelopment is an accident of nature simply waiting for a good Samaritan to correct it. In fact, every society, even the poorest, has winners as well as losers. Those who have benefited from the status quo constitute potential spoilers in any effort to change it. A criminalised society is the mirror image of a rule-of-law society: the distribution of resources rewards criminals for their activity and favours its continuation.

As in the case of the presumed smuggler in Kosovo who wanted to give up crime, co-optation is sometimes an option for defusing spoilers. However, interveners should only be sanguine about co-optation where in terms of the spoiler’s own values the appeal of behaving legally clearly outweighs the appeal of continuing his predatory or illegal behaviour. Astonishingly often, however, interveners have been willing to accept the word of some of the most degenerate people on earth at face value. Because it is easier in the immediate term, interveners virtually always convince themselves that they can afford to avoid confronting the warlords and others who have flourished in conditions of violence. In Somalia, Liberia and Sierra Leone, interveners effectively enhanced the power of the most dangerous men in those countries, respectively Mohamad Farah Aideed, Charles Taylor and Foday Sankoh. In Bosnia, political divisions created by ethnic cleansers were sanctified by the constitution drafted by the international community, allowing the amalgam of ethnic militancy and organised crime to thrive within each fiefdom. In Afghanistan, interveners allowed warlords to continue ruling virtually all the country’s territory, with the crippling results described above. And in Iraq, spoilers were confronted with a dearth of resources and the absence of a larger transformational narrative that could persuade Iraqis to foreswear ethnic and sectarian violence in favour of national structures. This record of failure reinforces what would appear obvious even without it: a rule-of-law intervention that is not prepared to defeat those who prosper through violence will be defeated by them.

Reform police, the judiciary and corrections as parts of a single coherent system

As we have seen, institutional reform conventionally receives the lion’s share of attention in rule of law reform efforts. Even here, though, a mechanistic, piecemeal approach often yields meagre results: ‘Developing a reasonably functioning justice system requires astute attention to how the various components relate to one another and to the larger political system and culture in which they are embedded. If reformers miss these larger links and interactions, their reform effort as a whole will be a good deal less than the sum of its parts.’[86]

The most obvious nemesis of institution-building efforts is the accommodation of warlords and other spoilers who realistically recognise rule-of-law reformer efforts as a mortal threat. Those assessing claims that their society’s legal order has changed measure that claim against the treatment of powerful thugocrats. Demonstrations of impunity vitiate any number of salutary achievements in other areas of rule of law reform. A reformed justice system will likewise fail to win public trust if it fails to serve the needs of ordinary people because, for instance, it is accessible only to the rich. From the point of view of the public, the judicial system is only as strong as its weakest link. Jane Citizen doesn’t want a choice between a good police force or competent, fair courts or a prison system that keeps people incarcerated and isolated from society for their full term; he wants a system that effectively deals with criminals, and that requires all three elements to be working effectively. If, as in the example from Kosovo above, police work effectively but the judicial system fails to convict and sentence guilty suspects, the credibility of the entire system will be fatally undermined.

Subordinate the past to the future

There is no consensus on how much emphasis should be placed on the accountability of those who have committed atrocities in the past. Stromseth et al argue that ‘the long-term impact of accountability proceedings on the rule of law depends critically on three factors: first, the effective disempowerment of key perpetrators who threaten stability and undermine public confidence in the rule of law; second, the character of the accountability proceedings pursued, particularly whether they demonstrate credibly that previous patterns of abuse and impunity are rejected and that justice can be fair; and third, the extent to which systematic and meaningful efforts at domestic capacity-building are included as part of the accountability process.’[87] Again, the key consideration is how various approaches would affect public confidence in the emerging political and legal order. Different societies and individuals process trauma differently, making any generic recommendations in this area futile. Interveners must consult with the people affected by past abuses about how to deal with the past while building a better future, and act accordingly. Here, strong leadership can help keep people looking forward; but alas, Mandelas are rare.

Don’t allow the urgent to overtake the important

Interveners will always be tempted to put the exigency of the moment ahead of the imperatives of long-term transformation. Often this will entail bending or breaking the law or collaborating with those who do. In Afghanistan, for instance, the need for boots on the ground to combat Taliban insurgents has led the government and its international patrons to push warlords’ militiamen through ten-day courses, then deploy them in the uniform of ordinary police. With no understanding of or respect for the law or of the responsibilities of police work, these militiamen will inevitably tarnish the reputation of Afghanistan’s fledgling police force.

In Afghanistan, ‘programs to advance the transparency and democratic accountability of the [security] sector, while situating it within a clear legal framework, have been superseded by a singular focus on training and equipping the country’s fledgling security forces.’[88] The ‘urgent’ – in this case, countering the insurgency – fully displaced the ‘important’, indeed imperative, need to create the rule of law, which alone will ensure Afghanistan’s long-term security and stability.

In Malaya, Thompson’s second principle was: ‘The government must function in accordance with the law.’ He acknowledges the temptation to act outside the law in dealing with terrorism and guerrillas, but argues: ‘Not only is this morally wrong, but, over a period, it will create more practical difficulties for a government than it solves. A government which does not act in accordance with the law forfeits the right to be called a government and cannot then expect its people to obey the law. Functioning in accordance with the law is a very small price to pay in return for the advantage of being the government.’[89] Though it’s a price worth paying, it requires forbearance that eludes most politicians and international public servants under pressure.

Foster cross-cutting identities

‘A country with “cross-cutting” cleavages is one in which political, ideological, ethnic, racial, religious or linguistic divisions overlap one another, such that individuals on opposite sides of one divisive issue are often allies on another issue. In contrast, when the principal subgroup divisions reinforce one another very closely, the society can be described as having a “cumulative” cleavage structure.’[90] Where individuals identify with clearly separated communities and do not also identify with groups occupied by members of other communities, the issues that affect them for good or ill will tend to discourage compromise and spawn maximalist positions. Half the soldiers in East Timor’s army rebelled in 2007 because they were all from the west of the country and assumed they were discriminated against on that basis, whereas had half the army felt discriminated against but not in a way that corresponded to a monolithic group identity, it’s hard to imagine the rebellion occurring.

Paris cites the contrast between India, with its cross-cutting identities, and Sri Lanka, where ‘prevailing linguistic, regional, religious, ethnic and class cleavages are mutually reinforcing and have “cumulatively” divided the country’s Sinhalese and Tamil communities’. In India, class and regional identities transcend the Hindu-Muslim divide, forcing even the Hindu nationalist Bharatiya Janata Party (PJP) to emphasise non-nationalist issues in the south and east, ‘where the Hindu-Muslim rivalry is of limited appeal’.[91]

Cross-cutting identities can also be fostered. New institutions can mix people of different backgrounds and create a shared identification with the institution or community of which they’re both a part. For this to be effective, the institution has to provide security and benefits that rival those of one’s organic network. Educational activities can also bring home to people their membership in groups beyond the one with which they’ve traditionally identified. A young person from Kosovo might attend a regional camp, for instance, and realize that in addition to being an Albanian, like many new friends in Belgrade and Skopje she’s a feminist, and a fan of hip hop music and an EU hopeful.

The ‘democratisation industry’ has typically subscribed to the view that since civil society is good and in western societies it often takes the form of voluntary associations, democratisation efforts should promote voluntary associations. But whether such associations are conducive or detrimental to society that is actually civil depends in part on whether their membership corresponds to existing cleavages or cuts across them.[92] It also depends on the existence of a state strong enough to contain them, rather than be usurped by them.

Reinforce political change and institution-building with cultural mechanisms and soft power

Post-conflict occupations in the era after World War II invested great resources in winning hearts and minds. For a complex combination of reasons, more recent post-conflict interventions have devoted much less attention to this crucial dimension of social and political change.

As noted, the phrase ‘winning hearts and minds’ was first coined by Gerald Templer during Malaya’s communist insurgency. When he took charge, the Government stepped up its efforts to provide a modicum of public services and amenities in the New Villages to which thousands of Chinese had been relocated. A paper produced by the Federal Legislative Council in May 1952 noted that ‘the New Villages mean in effect a new life for the people who dwell in them and it is important that this new life should, after the initial disturbance of moving, be more attractive than the old’. Henceforth, the Government would strive to provide each New Village with a minimal standard of public services. The paper also called for fostering a reasonably friendly feeling towards the Government and police and the launching of community activities such as Boy Scouts, Cubs and Girl Guides.[93] Templer himself became Chief Scout. His wife Peggie spoke on the radio in Malay. The most successful community centres had a café or canteen. The Malayan Chinese Association sponsored sports teams, especially basketball. Most New Villages had Women’s Institutes that taught childcare, health, cooking and sewing.[94] In Kosovo, by contrast, virtually no international UN staff spoke local languages, they rarely participated in community activities, and they were very slow in organising activities that could have an impact on morale.[95]

In post-war Germany and Japan, the occupiers took charge of education and transformed schools into transmitters of the attitudes that the Germans and Japanese would need in order to sustain and give substance to the new institutions being built. In Kosovo, by contrast, education was, as noted previously, one of the first public services transferred to local control, with the result that it remained a mechanism of partisan political patronage and perpetuated nationalist values inimical to Kosovo’s transformation into a society in which all its people could live in security and dignity.

Similarly, in the immediate aftermath of war in Japan and Germany, the media was tightly controlled to prevent the dissemination of hate speech and conspiracy theories. These continued to flourish in Kosovo under UN administration, which only rarely imposed weak fines for hate speech and then only after the damage was already done.

Ensure that rhetoric matches realities on the ground

However effective an intervention’s use of the levers of persuasion and education, messages will not long remain credible if contradicted by actual experience. All interventions and most development projects now include a ‘public information’ component, but this ordinarily operates quite independently from the rest of the activity. In the area of rule of law, credibility is so fundamental and the stakes so high that interveners must not encourage people to behave differently until the institutions are ready to reward that behaviour with positive outcomes.

The importance of this issue is compounded by the widespread practice of despotic or ineffective regimes using the rhetoric of stable democracies. The vast majority of people living in societies targeted by rule-of-law interventions will have strong impressions of ‘courts’, ‘police’, ‘prosecutors’ and other institutions and officials bearing the labels of their rule-of-law society counterparts. If institutions go on using the same names, uniforms, insignia and so forth while they are being reformed, their sub-par performance will perpetuate the public perception that such institutions are eternally doomed to ineffectuality. Reform programs should focus on transforming institutions with no fanfare, and only when they are ready to perform as promised roll them out in a fashion that dramatically underscores the break with their institutional forebears.

Provide protection to the most vulnerable

The overriding imperative to build up the credibility of newly transformed institutions means they cannot be put in a position of responsibility for public security before they’re equal to the task. While transforming all the components of the justice system in a society where interpersonal violence is rife, other forces and instruments, generally international, must be deployed to mitigate interpersonal violence while establishing the long-term basis for a rule-of-law society. Interveners should pay particular attention to conditions for women, for whom ‘peacetime, paradoxically, can yield increasing violence, insecurity and economic and political constraints.’[96]

CONCLUSION: THE HUMAN FACTOR

Most of the principles we have advocated in this paper are familiar at least in general terms to a significant minority of scholars and practitioners. For these principles to prevail in practice, in the face of the innumerable pressures to subordinate them to considerations of expediency, practitioners must understand them deeply and believe in them passionately.

Many rule-of-law reform efforts have proceeded on the implicit assumption that where there’s a way (in the form of institutions), the will to use them will emerge spontaneously. With regard to a society’s inclination to be ruled by law or by raw might, the old adage is right: where there’s the will, the way will be found; the opposite, however, does not hold.

Interveners must focus on creating the will to behave civilly and in support of the legal order. This will, in turn, will arise where people see that by supporting the law and behaving civilly, they will survive, and ideally not merely survive but flourish. Many things have gone right in societies that today enjoy that state of affairs, characterised by sets of institutions appropriately empowered and so balanced as to prevent predatory behaviour by any one centre of power, that we call the rule of law. The wisest interveners in the world cannot create all these conditions. But by listening to the people affected and trying to look at changes through their eyes, they can understand what’s required for respecting the law and behaving civilly to make sense. That would be a huge improvement on approaches that have regarded people as a passive adjunct to the blueprints imported wholesale from first world law libraries.

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[1] For more on this theme, see Martin Krygier, Civil Passions, Black Inc., Melbourne, 2005.

2. [2] See Randall Peerenboom, ‘Human Rights and Rule of Law: What’s the Relationship?’, (2005) 36 Georgetown Journal of International Law, 809-945; David Trubek and Alvaro Santos, eds, The New Law and Economic Development. A Critical Approach, Cambridge University Press, 2006; Stephen Golub, ‘A House without foundations’ in Carothers, ed., Promoting the Rule of Law Abroad, Carnegie Endowment for International Peace, Washington, DC, 2006, 105-36.

[3] ‘Introduction’ to Call, ed., Constructing Justice and Security after War, United States Institute of Peace Press, Washington, D.C., 2007, 4.

[4] Thomas Carothers, ‘The Problem of Knowledge’ in Promoting the Rule of Law Abroad, 21.

[5] See Carothers, ed., Promoting the Rule of Law Abroad; Erik G. Jensen and Thomas C. Heller, eds., Beyond Common Knowledge. Empirical Approaches to the Rule of Law, Stanford Law and Politics, 2003; Kirsti Samuels, Rule of Law Reform in Post-Conflict Countries. Operational Initiatives and Lessons Learnt,’ (October 2006), Social Development Papers, Paper No. 37.

[6] See, for instance, Dobbins et al, eds, The Beginner’s Guide to Nation-Building, Santa Monica, RAND, 2007.

[7] For some intelligent, still controversial and unsettled, discussions of such a tendency in a particular (Russian) context, see Kathryn Hendley, Stephen Holmes, Anders Åslund, András Sajó, ‘Debate: Demand for Law,’ (1999) 8, 4 East European Constitutional Review 88-108. Cf. also ‘Citizen and Law after Communism, (Winter 1998) 7, 1 East European Constitutional Review, 70-88 and Ilian G. Cashu and Mitchell A. Orenstein, ‘The Pensioners' Court Campaign: Making Law Matter in Russia’ with reply by Kathryn Hendley, ‘”Demand” for Law – A Mixed Picture,’ (Fall 2001) 10, 4 East European Constitutional Review.

[8] This is the central theme of a series of pieces by Krygier, among them: ‘Transitional Questions about the Rule of Law: Why, What, and How?’ (2001) 28, part 1, East Central Europe/L’Europe du Centre-Est, 1-34; ‘The Grammar of Colonial Legality: Subjects, Objects and the Rule of Law,’ in Geoffrey Brennan and Francis G. Castles, eds, Australia Reshaped. Essays on 200 Years of Institutional Transformation, (Cambridge, Cambridge University Press, 2002) 220-60; ‘False Dichotomies, Real Perplexities, and the Rule of Law’ in András Sajó, ed., Human Rights with Modesty. The Problem of Universalism, (Leiden/Boston, Martinus Nijhoff) 2004, 251-277; ‘The Rule of Law. An Abuser’s Guide,’ in András Sajó, ed., The Dark Side of Fundamental Rights, (Utrecht, Eleven International Publishing, 2006) 129-161; Martin Krygier, ‘The Rule of Law: Legality, Teleology, Sociology,’ forthcoming in Gianluigi Palombella and Neil Walker, eds. Relocating the Rule of Law, (Oxford, Hart Publishers, 2008). Cf. Jane Stromseth, David Wippman and Rosa Brooks, Can Might Make Rights? Building the Rule of Law After Military Interventions, Cambridge University Press, 2006, 329: ‘it is important to distinguish between means and ends. The rule of law is an end; our familiar modern legal institutions are one means of achieving that end, but not the oly means, and at times not even the most effective means in the shorter term.’

[9] Whit Mason, ‘Reporter-at-Large: Trouble in Tbilisi’, The National Interest, March 2005. In November 2007, tens of thousands in Georgia who accuse Shakashvili of authoritarianism demonstrated for him to resign.

10. [10] Livingston Armytage, ‘Pakistan’s law and justice sector reform experience – some lessons’, paper delivered to the 13th Commonwealth Law Conference, Melbourne, 14 April 2003 http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/PakistanADBProjectLessonsLearned.pdf.

[11] Thomas Carothers, ‘The Problem of Knowledge’ in Promoting the Rule of Law Abroad, 21.

[12] For an eloquent evocation of how deep they seep and have seeped, see E.P. Thompson, Whigs and Hunters. The Origins of the Black Acts, Harmondsworth, Penguin, 258-69.

13. [13] See, however, David Neal, The Rule of Law in a Penal Colony, Cambridge, Melbourne, 1991 and Martin Krygier‘The Grammar of Colonial Legality: Subjects, Objects, and the Australian Rule of Law’, in Geoffrey Brennan and Francis G. Castles, eds., Australia Reshaped. 200 Years of Institutional Transformation, Cambridge, Cambridge University Press, 2002, 220-60, for the former, and Hendley et al (n.8 supra) on the latter.

[14] See, for example, Stephen Holmes, ‘Can Foreign Aid Promote the Rule of Law?’, (Fall 1999) 8, 4 East European Constitutional Review, 68-74.

[15] ‘In politics, then, every enterprise is a consequential enterprise, the pursuit, not of a dream, or of a general principle, by of an intimation.,’ Michael Oakeshott, ‘Political Education,’ in Rationalism in Politics and other essays, new and expanded edition, (Indianapolis, IN., Liberty Press, 1991) 57. And see 66-69, ‘The Pursuit of Intimations.’

[16] Carothers, Jensen and Heller, Kirsti Samuels, ‘Rule of Law Reform in Post-Conflict Countries. Operational Initiatives and Lessons Learnt,’ (October 2006), Social Development Papers, Paper No. 37.

[17] Gianfranco Poggi coins the phrase to describe Durkheim’s conception of society. See his Durkheim, Oxford University Press, Oxford, 2000, 85.

[18] This argument is developed in the articles by Krygier at n. 8 supra. Our argument overlaps at many points with those of the best recent book on this subject, Jane Stromseth, David Wippman and Rosa Brooks, Can Might Make Rights? Building the Rule of Law After Military Interventions, Cambridge University Press, 2006.

[19] Judith N. Shklar, ‘Political Theory and the Rule of Law,’ in Shklar, Political Thought and Political Thinkers, edited by Stanley Hoffmann, University of Chicago Press, Chicago, 1998, 24-25.

[20] See Gianluigi Palombella, ‘The Rule of Law and its Scope,’ forthcoming in Palombella and Neil Walker, eds, Re-locating the Rule of Law, Hart Publishers, Oxford, 2008.

[21] ‘What is the Role of Legal and Judicial Reform in the Development Process?’, World Bank Legal Conference, Washington DC, June 5, 2000.

[22] Ibid., 9-10.

[23] See Charles Howard McIlwain, Constitutionalism: Ancient and Modern, Revised edition, Great Seal Books, Ithaca NY, 1958.

[24] See Krygier, ‘False Dichotomies, Real Perplexities and the Rule of Law.’
[25] See Dobbins, et al., The Beginner’s Guide to Nation-Building.

[26] There is a massive law and society literature on ‘the disputing pyramid’ which gets smaller and smaller the closer you come to legal institutions and the higher you go in them. For a classic of the genre, see William L.F. Felstiner, Richard L. Abel and Austin Sarat, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming ...’ (1980-81) 15 Law and Society Review 631-54. Cf. also Marc Galanter, ‘Reading the Landscape of Disputes: What We Know and Don’t Know (and Think We Know) About our allegedly contentious Society,’ University of Wisconsin-Madison, Disputes Processing Research Program, Working Paper 1983-1.

[27] Marc Galanter, ‘Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law,’ (1981) 19 Journal of Legal Pluralism,3.

[28] Marc Galanter, ‘Justice in Many Rooms’ 16.

[29] Ibid., 16.

[30] Sally Falk Moore’s classic study, ‘Law and social change: the semi-autonomous social field as an appropriate subject of study’, in Law as Process, Routledge and Kegan Paul, London, 1978, 54-81, is essential reading for anyone trying to think how legal institutions affect social life. She illuminates the ways in which law is refracted, transformed, and enlisted in normative competition and collaboration with pressures, practices, interests and understandings that emanate from the significant groupings in which we spend much of our lives.

[31] Galanter, ‘Justice in Many Rooms,’ 17.

[32] In a workshop on ‘Rethinking the Rule of Law after Communism.,’ European University Institute, Florence, 2003.

[33] ‘Mythmaking in the Rule-of-Law Orthodoxy,’ in Carothers, ed., op. cit., 76.

[34] Holmes, ‘Can Foreign Aid Promote the Rule of Law?’ 73.

[35] Sen, op. cit., 10.

[36] Ibid., 27.[37]

[38] Blood and Belonging. Journeys into the New Nationalism, Farrar, Strauss and Giroux, New York, 1995, 48.

[39] See Dominique Colas, Civil Society and Fanaticism, Stanford UP, 1997; Amos Oz, How to Cure a Fanatic, Princeton University Press, 2006.

[40] Iain King and Whit Mason, Peace at Any Price. How the World Failed Kosovo, Hurst & Co. London, 2006.

[41] Can Might Make Rights?, 75. Italics in the original.

[42] Can Might Make Rights?, 311.

[43] ‘Legal Cultures and the Rule of Law,’ in Martin Krygier and Adam Czarnota, eds., The Rule of Law after Communism, Ashgate, Aldershot, 1999, 37.

[44] A line commonly attributed to Goering is ‘whenever I hear the word “culture” I reach for my revolver.’ Another and cleverer version attributed to him is ‘whenever I heard the word “culture” I reach for my Browning’ (with the pun on a brand of revolver and the English poet).

[45] Martin Krygier, ‘Institutional Optimism, Cultural Pessimism and the Rule of Law, ‘ in Krygier and Czarnota, eds., The Rule of Law after Communism., 90. Amartya Sen is typically wise about these questions in Identity and Violence. The Illusion of Destiny, W.W. Norton & Co., 2007, chapter 5, ‘Culture and Captivity.’

[46] See Stephen Holmes, ‘Cultural Legacies or State Collapse? Probing the Postcommunist Dilemma,’ Collegium Budapest/Institute for Advanced Study, Public Lecture No. 13, November 1995.

[47] Stephanie Low, ‘Proposed filial piety law sparks debate among lawmakers’, Taipei Times, 10 January, 2002, page. 2.
[48] Whit Mason, to be precise.

[49] Sources of Social Power, vol. 1, Cambridge, Cambridge University Press, 1986, 477. Elsewhere he elaborates the distinction between infrastructural and despotic power thus: the former is ‘the capacity of the state to actually penetrate society, and to implement logistically political decisions throughout the realm,’ the latter is ‘the range of actions which the elite is empowered to undertake without routine, institutionalized negotiations with civil society,’ (Michael Mann, ‘The Autonomous Power of the State: Its Origins, Mechanisms and Resources’, in his State, War and Capitalism, Oxford, Blackwell, 1988, 32.)

[50] For the apparent paradox that constitutionally constrained states can be more powerful (in a good sense) than unconstrained ones, see Stephen Holmes, Passions and Constraint. On the Theory of Liberal Democracy, University of Chicago Press, 1995.

[51] Studies of war-time atrocities often conclude that the decisive factor tipping soldiers over the edge is their novel sense of being able to act with complete impunity. Cf. Iris Chang, The Rape of Nanking, Basic Books, New York, 1997.

[52] Robert Dahl, On Democracy, Yale University Press, New Haven, 1998, 88.

[53] Bubalo, Fealey and Mason, ‘Zealous Democrats’, Lowy Institute paper, Sydney, forthcoming.

[54] Michael Mann writes: ‘Murderous ethnic cleansing is a hazard of the age of democracy since amid multiethnicity the ideal of rule by the people began to entwine the demos with the dominant ethnos, generating organic conceptions of the nation and th estate that encouraged the cleansing of minorities.’ He also argues that ‘regimes newly embarked upon democratization are more likely to commit murderous ethnic cleansing than are stable authoritarian regimes.’ The Dark Side of Democracy, Cambridge, CUP, 2005. Roland Paris makes a similar argument in At War’s End: Building Peace After Civil Conflict, Cambridge University Press, 2004.

[55] Reinhard Bendix, Nation-building and Citizenship, Transaction Books, Edison, NJ, 1996, 194.

[56] Benedict Anderson, Imagined Communities, Verso, London, 1991.

[57] On the significance of cross-cutting identities, see Amartya Sen, Identity and Violence.

[58] Samuel P. Huntington, Political Order in Changing Societies, Yale University Press, New Haven, 1968, 41.

[59] Ibid., 47.

[60] Roland Paris, At War’s End.

[61] Susan Rose-Ackerman,. ‘Establishing the rule of law’ in Robert I. Rotberg, ed, When States Fail: Causes and Consequences, Princeton, Princeton University Press, 2004, 182-221.

[62] William Durch, Twenty-first-century Peace Operations, USIP, Washington, 2007.

[63] Jane Perlez, ‘Aid to Pakistan in Tribal Area raises concerns’, New York Times, 16 July 2007.

[64] King and Mason, Peace at Any Price, 249.

[65] King and Mason, Peace at any Price, especially pp. 59-61, 97-101, 144-46, 194-95.

[66] Jock Covey, et al, eds, The Quest for Viable Peace: International Intervention and strategies for conflict transformation, Washington, United States Institute for Peace, 2005.

[67] Interview with Blanca Antonini by Whit Mason, November 11, 2004, by telephone (NY).

[68] Krenar Gashi, Balkan Investigative Reporting Network, September 2007.

[69] International Crisis Group, Reforming Afghanistan’s Police, Asia Report No.138, 30 August, 2007, 5.

[70] ICG 5.

[71] ICG 6.

[72] ICG 13-14.

[73] ICG 16.

[74] ICG 16-17.

[75] For an example of the scope of conventional approaches to judicial and security reform, see Charles T. Call, ed, Constructing Justice and Security after War, Washington, United States Institute for Peace, 2007.

[76] Cloake, John. 1985. Templer, Tiger of Malaya – The Life of Field Marshal Sir Gerald Templer. London: Harrap, 1985, 267.

77. [77] Stubbs, Richard. Hearts and Minds in Guerrilla Warfare: The Malayan Emergency 1948-1960. Oxford: Oxford University Press, 1989, 151.

[78] Cloake, Templer, Tiger of Malaya, 262.

[79] Stubbs, Hearts and Minds, 157.

80. [80] Robert, Thompson, Defeating Communist Insurgency: Experiences from Malaya and Vietnam. London: Chatto & Windus, 1966, 65.
81. [81] Mason, Whit, ‘Contradictions between ends and means in post-imperial protectorates’, unpublished master’s thesis, Cambridge University, 2005.

[82] Thompson, Defeating Communist Insurgency, 163.

[83] Thompson, Defeating Communist Insurgency, 56.

[84] Stubbs, Hearts and Minds, 138.

[85] C. Wright Mills, The Sociological Imagination, Oxford University Press, 2000.

[86] Stromseth et al, Can Might Make Rights?, 179.

[87] Stromseth et al, Can Might Make Rights? 254.

[88] ICG 17, quoting Mark Sedra, “Security Sector Reform in Afghanistan” The Slide toward expediency”, (March 2006) 13, 1 International Peacekeeping, 95.

[89] Thompson, Defeating Communist Insurgency, 52-53.

[90] Paris, At War’s End, 171.

[91] Ibid.

[92] Sheri Berman has persuasively argued that robust associational activity in Weimar Germany contributed to the rise of Hitler.( ‘Civil Society and the Collapse of the Weimar Republic’, (1997) 49, 3 World Politics, 401-29). Rwanda also had “an extremely high civil society density” leading up to the 1994 genocide. Paris, 160-161.

[93] Stubbs, Hearts and Minds,169.

[94] Mason, 2005, Chapter 6, 6.

[95] Special Representative of the Secretary-General Michael Steiner once directed that fire trucks in the ethnically divided city of Mitrovica be painted red. After repeating the order in the face of continued bureaucratic resistance and inaction, after six weeks Steiner finally gave up. King and Mason, Peace at Any Price, 140.

[96] Tracy Fitzsimmons, ‘Engendering Justice and Security after War’ in Call et al, eds, Constructing Justice and Security after War, 351-52.