Reinventing the Rules
Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
Event: 20 Years of Rule of Law Programs in Europe and Eurasia
From what I understand (and feel free to correct me if I’m wrong!), some of the oldest programs initiated by the United States to build rule of law in other countries began with Europe and Eurasia. So coming across this event in 2011 on “Twenty Years of Democracy and Governance Programs in Europe and Eurasia” was particularly interesting, because you can see how the approach to rule of law reform has evolved and perhaps in some ways not evolved fast enough. Check out the excerpts below!
Credit: Mohammad Rakibul Hasan
Dr. Jerry Hyman (Senior Adviser and President of Hills Program on Governance at the Center for Strategic and International Studies)
Initial Assumptions About the Countries Where Programs Were Implemented
The program began in Poland, Hungary and (then) Czechoslovakia. The basic assumptions underlying our response to their transitions and the assistance framework consequently designed for them was extended without much change as the other countries of Central Europe left the “Soviet sphere” and then when the Soviet Union itself disintegrated.
The first assumption was that (unlike much of Africa, Asia and even Latin America), it would be a short-term, three to five year program because these were industrial countries with relatively high levels of skill and education, aspirations to join the free-market democracies of Western Europe, and the political will to make the reforms necessary to do so. Second, it was assumed that the primary obstacle to these ambitions lay in their policies and institutions, all imposed by their communist elites under the leadership of Moscow. So, ‘Change the policies, change the institutions, and you will find a substantial convergence of this region with Western Europe in three to five years.’ Dr. Hyman argues that as a result of these assumptions, we did not do the necessary analytical groundwork in the other countries of Central Europe let alone those further east, which did not share these characteristics and which therefore required a modified approach and certainly a longer time-frame.
Lessons Learned & Recommendations
Dr. Hyman referenced the Word Bank Institute’s Governance Matter map to indicate the lag between what we expected and what resulted. He argued, further, that we did not pay sufficient attention to the national governance area of democracy and governance work, in part because we consciously decided to concentrate on local governance, leaving national governance to the EU. A significant amount of attention and money went to NGOs, civil society, election, political processes, even rule of law, etc., with very little going toward the governance side.
Dr. Hyman concluded by emphasizing the importance of thinking about governance in our ongoing development work in the region. Citizens judge the new democracies by how they deliver and much of that depends on good governance. He believed that if there were to be any kind of change in Russia, the Russian people too will judge that change by how well a democratic government performs.
Dr. Rachel Kleinfeld (Founding President of the Truman National Security Project)
Common Assumptions about Rule of Law Reform
Dr. Kleinfeld opened by drawing a parallel between a stereotypical ‘developing country’ and a historical U.S. city, arguing that the U.S. in its own history faced many similar rule of law issues to today’s developing countries. She noted that there are several universal truths when it comes to rule of law issues that should be known, the primary one being that rule of law is not about a set of institutions or laws, but rather is about a relationship between the state and society. She argued against the common belief that if we change laws and make institutions more like our own, the rule of law will be better, citing several cases that do not meet this paradigm.
Strategic Entry Points for Rule for Law Programs 
Dr. Kleinfeld then discussed the need to consider issues of power structures and cultural factors, which she cited as the key issues we must address to improve the rule of law. She shared the history of the fight against the mafia in Sicily, corruption issues in Hong Kong, and success in other countries in building the rule of law. In each case, windows of opportunity were important – and a small amount of money at a key point was worth significantly more than a large amount of money without a window of opportunity.
Dr. Kleinfeld proposed a number of recommendations for how the U.S. should approach Rule of law work. Her first recommendation is to look internally at ourselves and acknowledge that we are, in fact, outsiders and that we are never going to have as much at stake as someone whose entire life is in these countries. There will always be locals who have a greater stake in a very political system that we’re trying to change. She believes that for this reason, we need to consider power dynamics, and support internal reformers who can find sources of leverage. In supporting reformers, we should not “Seek a champion” and ignore their own potential for corruption -but should support changes to the power structures that can be led by internal reformers but will also create rule of law structures that control even those champions. Dr. Kleinfeld asserted that in this second generation of democracy assistance that we are currently implementing needs to look closely at who and what the fulcrum for change will be, seeking to first identify the stakeholders rather than the programmatic intervention.
Dr. Eric Rudenshiold (Senior Advisor at USAID)
Challenges to Working in Eastern Europe
Dr. Rudenshiold opened with a comparative discussion of Eastern Europe and the former Soviet Union, noting that there was a palpable difference resulting from four decades of communist indoctrination versus seven decades. He argued that there were and continues to be distinct pull factors from Western Europe the Baltic region. Dr. Rudenshiold asserts that the legislatures being stood up over the past two decades are not necessarily real institutions but rather rubber stamped creatures setting the expectations that the legislature was actually going to do something for their citizens or
represent their interest very low. Legislatures themselves lacked experience.
Prior USAID approaches to Rule of Law in Eastern Europe
Credit: Andrey Rudakov
Given this challenge, coupled with the lack of basic infrastructure and available training, Dr. Rudenshiold identified the various approaches that USAID has attempted over the past 20 years, highlighting both successes and failures. Governance programs particularly in the late 1990s and early 2000s came under a lot of pressure to produce specific results or be cut, however these programs do not result in the larger, broader institutional changing activities we are looking to achieve. He argued that pilot programs are in no way a substitute for full scale programs. Dr. Rudenshiold cautioned that parliamentary programs cannot be tied to political leadership in a parliament, because if leadership changes, which is likely in a properly functioning democracy, so does the activity. Successful programs require a short, medium, and long term goals. Dr. Rudenshiold closed by stressing the importance of having a firm and fair approach to governance programming from the outset, as well as managing expectations.
Mr. Suren Avanesyan (Senior Advisor at USAID)
Contextualizing International Rule of Law Reform with Rule of Law Reform in the United States
Mr. Avanesyan prefaced his discussion by noting that it took the U.S. a very long time to achieve full and equitable access to rights that we often now take for granted. He emphasized that the constitution, as originally drafted, laid out the institutional structure of the country, but did not guarantee the individual rights to all U.S. citizens. It took two years and significant debate before the Bill of Rights was drafted in 1789, and more than 70 years had to pass between the Seneca Falls Convention in 1846 and the adoption of the 19th amendment in 1920, which was initially drafted in 1878. Mr. Avanesyan noted that even when rights exist on paper, they can take decades to implement, citing the Voting Rights Act as an example.
The Importance of Civil Society in Rule of Law Reform
Mr. Avanesyan discussed the magnitude of the breakup of the communist bloc, and the associated task of having to reintegrate 4 hundred million people into a new world where rule of law, democracy, human rights, civil liberty and a market economy were the defining characteristics. Mr. Avanesyan uses the term ‘rule of law society’ because it accurately encapsulates civil society into rule of law, both of which are mutually enforcing. The more there is the rule of law, the greater the freedoms and opportunities for actors in organizations and economic, political, and civil society to associate. Similarly, the stronger and more influential those groups and organizations become, the better the chances for strengthening the rule of law.
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