Reinventing the Rules
Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
Book: The International Rule of Law Movement: A Crisis of Legitimacy & the Way Forward
Last year a new book was published by David Marshall titled “The International Rule of Law Movement: A Crisis of Legitimacy and the Way Forward.” The book contains contributions from several authors on rule of law reform and touches on customary justice systems, the United Nation’s role in building rule of law, the use of indicators, the political economy of donor assistance, and much more. Below you’ll find highlights from this fascinating book! 
In New Rules for the Rule of Law, James A. Goldston discusses why conversations on rule of law reform in developing countries is preferable to discourses on human rights because it is less confrontational and avoids shaming leaders. Rule of law reform, in contrast to human rights, “deploys a range of tools between confrontation and collaboration.”
In Reboot Required: The United Nations’ Engagement in Rule of Law Reform in Postconflict and Fragile States, David Marshall argues that the United Nations has not done enough to assess the effectiveness of their rule of law programs. David writes that there are little to no “institutional incentives” for UN staff to evaluate their programs and not enough is done to determine whether international experts assisting the local population are meeting the needs on the grounds. Despite this concern, he highlights an interesting regional initiative in South Sudan, where staff from Kenya, Uganda, and Ethiopia are placed for two years in national, state, and local ministries to build the capacity of their local counterpart. David notes that there has been some success in building more local ownership.
In Decolonizing the Centralist Mind: Legal Pluralism and the Rule of Law, Haider Ala Hamoudi writes that unless rule of law reformers accept the reality that plural legal systems are here to stay, programmatic efforts to improve coordination between formal and informal justice systems will not be successful.
“More than merely understanding how different legal systems, including the state system operate in the broader social matrix, [accepting the realities of a plural legal system] requires a ‘decolonization of the mind.’ Specifically, rule of law policies and programs must come to realize that legal systems that are autonomous of state law will invariably exist, irrespective of what type of rule of law society ultimately emerges. It takes a mind colonized in the assumptions of legal centralism to presume that customary tribunals are so incorrigible, and state courts so capable of massive reform, that the only possible solution to abuses by the former is the exercise of control by the latter.”
Haider points out that rule of law reform often include programs which result in making customary systems subservient to the formal system. He writes that reforms should instead focus on improving customary justice systems of their own accord, irrespective of the state. Haider also provides examples where states have relegated responsibility over tort systems to tribes, effectively relieving courts of financial stress and a heavy caseload.
In Policy of Government and Policy of Culture: Understanding the Rules of Law in the ‘Context’ of South Sudan’s Western Equatoria State, Mareike Schomerus also uses South Sudan to question whether colonization has reappeared under the guise of rule of law reform.
Mareike writes that despite efforts by international rule of law reformers to strengthen the links between formal and informal justice systems, communities in rural areas have historically viewed rules by elites in the capital with suspicion. While many donors are increasingly emphasizing the importance of ‘context’, Mareike notes that “taking local realities, local customs, and local authority seriously is important. Yet, the notion of the ‘local’ stressed in this approach comes surprisingly close to how the 19th century anthropologists viewed traditional societies – as rooted in traditions and largely unchangeable.” She argues that justice providers have used tactics similar to the British colonial administration in tweaking locally established mechanisms to support rule of law.
“Confusingly, with rule of law and judicial institution-building, donors have worked under the assumption that they are starting from scratch in South Sudan. The underlying view of the state of South Sudan’s justice system sees it as chaotic and lacking clarity and rules-and thus inhospitable to the rule of law. The widely held assumption that local authorities first need to be taught what governance is according to rules and law has created a reliance on mostly off-the-peg solutions that see the provision of justice as requiring a clear set of rules, institutions, and authorities.”
Mareike goes on to write about how perceptions of authority and justice differ from rules-based systems and why the latter is not easily accepted in South Sudan. She also discusses why efforts by reformers to codify customary laws defy the nature and purpose of it.
In The Rule of Law in Ordinary Action: Filing Legal Advice in Lagos State, Todd Foglesong walks us through the successes and challenges faced by the Lagos state attorney general in reducing the number of pretrial detainees. In doing so, he notes “evangelical writing about justice reform abroad can move attention and credit away from the people most responsible for improvements in government and the lives of ordinary people. It can also obscure local sources of inspiration and the manifold motivations for justice.”
Todd writes that the introduction of indicators in Lagos state has improved communication, individual accountability and also encouraged prosecutors to become active problem solvers when indicators reveal shortcomings. Todd also notes that the use of indicators can positively highlight smaller more localized and individual changes that often go undetected. Finally, he writes “James Goldston suggests we only know how to measure the absence of rule of law rather than its presence. According to this view, there might be much more rule of law in the world today, or at least movement toward the rule of law than we know and believe.”
In Beyond Deficit and Dysfunction: Three Questions toward Just Development in Fragile and Conflict-Affected Settings by Louis-Alexandre Berg, Deborah Isser, and Doug Porter, the authors explore a few interesting themes.
They note that rule of law reform is often too narrow and does not address many of the common needs of populations in fragile and conflict-affected environments. “[It] is defined narrowly around an overly securitized conception of justice that prioritizes criminal justice over other forms of dispute resolution or grievance redress, and that neglects a wide range of arenas – from land and property rights to access to basic services – in which grievances and disputes occur.” They write that the most common disputes revolve around property and labor issues in fragile countries.
In light of the current trend to conduct political economy analyses in a country, the authors make an interesting note in highlighting that there are instances where independent and effective judiciaries have blossomed under authoritarian regimes in order to ward off challenges to their power. Some leaders have been incentivized to support these reforms to ensure they are not punished after leaving office.
In Postscript: An Immodest Reflection by Erik Jensen, the author writes that more of an effort must be undertaken to understand the political economy of donor assistance. “Most requests for RFPs in rule of law assistance make normative assertions that may or may not be supported by empirical evidence. Proposals in response to the RFPs, if they are to succeed, must reassert the normative conjecture that was framed by the prospective donor.” He also notes that smaller but significant successes in rule of law programs are often overshadowed by the pressure to scale up programs.
To learn more, you can buy the book here.
Reinventing the Rules 