Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
Dr. Rachel Kleinfeld, Founder of the Truman National Security Project, discusses techniques to improve the rule of law sector.
1) The most important elements to change are a country’s power structure and culture –its popular and professional norms. Most first-generation rule of law programs focused on improving laws and institutions. Reformers would build new court buildings, providing equipment to police, rewrite commercial laws, and provide computers to improve case management. But no matter how badly it appears that these material goods are needed, second generation reformers have discovered that they are secondary to real reform. Until power structures and professional and popular culture support the rule of law, politically powerful individuals can ignore it, and laws and institutions will continue to malfunction. Therefore, the crucial realization of second generation reform is that countries lack the rule of law not because they are ignorant of technical legal issues, or are too poor to purchase the proper equipment – but because powerful, inimical interests are not directing the budget towards those goods, and are actively working to undermine laws. Therefore, targeting the power structure and culture is the place to leverage real change.
2) Start with the end goal – the problem – not with a set of standard reforms. The rule of law existed in Engalnd before computerized case management; it was prevalent in America when court buildings were set up in shacks on the frontier. Second generation reformers recognize that the rule of law is not about replicating institutions and laws from the West to the rest, but about a set of end goals: a government that is bound by and governs through pre-existing laws, which treats citizens as equal before the law, which respects human rights, ensures law and order, and provides for efficient dispute settlement and regularized decisions. Institutions and laws can be means to these ends – but they are not the goal in and of themselves.
3) Focus reform on what citizens of a country need and want. Early rule of law reform efforts generally chose from a mish-mash of standard reform measures. Second generation reformers recognize that success requires local support. Thus, asking citizens – not legal professionals or law enforcement – what they actually want will lead to greater support for reform, and greater success.
4) Do No Harm. Many rule of law reform programs can unintentionally diminish the rule of law. Forcing countries to pass laws desired by the international community over the heads of a recalcitrant parliament impedes democracy. Rewriting laws wholesale that are not used can actually diminish respect for the law in general. Using the country’s best legal minds for an effort that is important to the international community, but costs the country these minds when a major effort – such as constitution-writing, or clearing the courts of land cases – can lead the population to feel that they have no recourse to justice. These unintended side-effects are so common that they are now seen as simply part of the normal course of events for rule of law reform. They should instead be seen as unacceptable. Focusing on what citizens of a country most want is one way to avoid these unintended consequences.
5) Bottom-up efforts are likely to be more successful than top-down reform. The United States and other outside countries lack legitimacy in targeting a country’s power structure, and the culture of its legal and law enforcement professionals. Moreover, they have less skin in the game: they will leave, the locals will stay. And, the locals tend to have far deeper knowledge of the situation on the ground. Moreover, outside countries have many interests that may compromise their own ability to push a hard line on the rule of law. Many current programs are top-down, assuming that what is needed is outside technical assistance to improve courts, or police, etc. But because the real problem with the rule of law is about power and culture, the most successful programs tend to support local reformers working within their own countries. Providing technical assistance, skill-building, and financial support to these reformers will get more done over the longer-term than employing external contractors to do the work.
6) Coordinate work across the different elements of the legal system. If police arrest criminals, but these lawbreakers are released by weak courts, the rule of law fails. The same is true if modern laws are passed and courts pass sound judgments but plaintiffs can’t collect, or the jails can’t keep people inside. U.S. rule of law efforts are particularly disjointed, but in many reform efforts worldwide, law enforcement reform is separated from court reform, which is often different from prison reform. This makes no sense; the rule of law is an interdependent system, and these reforms must work together. Thus, we should stop breaking our programs down by these institutions, and start grouping reforms together by the end we are trying to improve, such as law and order, or improved human rights.
7) More flexible budgets and program structures are needed to make use of the punctuated time line for reform. Reform does not take place along a steady set of benchmarks. Because it is intrinsically political, sudden events – the death of a beloved reformer; a major corruption scandal, an election – can open up windows for real change. Budgets and metrics must allow reformers to make use of these windows of opportunity, and recognize that reform may be quite slow in between. Metrics of efficiency must be replaced with metrics of efficacy.
8) Add more anthropologists, sociologists, and political scientists to the field, alongside lawyers and judges. The rule of law is fundamentally about power and culture. Legal professionals have essential credibility within their professions – but the rule of law field is about far more than legal and institutional reform. Therefore, it needs to augment legal professionals with those from other disciplines who think more frequently in terms of power and culture.
9) Club membership – such as joining the WTO, the EU, and other international bodies, is a great time to exercise external leverage. Diplomacy can play a major role in rule of law reform – a fact easily forgotten when the rule of law is seen as a subset of aid programs. When rule of law reformers have the chance to get rule of law criteria into an international membership process, use it. Once membership occurs, leverage dissipates.
10) Look at success the way a local would. If you are moving to a new city and want to know whether the crime there is a problem, you wouldn’t look up the number of police academy graduates – you would check on the crime rate. If a quarter of the country has wealth locked in property that is under dispute, they may be rather unexcited about a new intellectual property law – but give the legal system far more credit if it manages to move property cases quickly. Our efforts should focus on problems that are seen as problems by those in the country – that is the only way to gain the support and power needed to overcome entrenched cultures and power structures. And we should measure our success not by the outputs of our programs – but by whether they actually change life on the ground for the people of the country.
To learn more, check out Dr. Kleinfeld’s new book Advancing the Rule of Law Abroad: Next Generation Reform (Carnegie Endowment, 2012). The book was named one of the top books of 2012 by Foreign Affairs.