In The News

Rule of Law and Peace-Building: A Modest Proposal

June 25, 2010

In the larger debate about the relationship of development assistance to security, the gap between normative assertions and empirical evidence yawns. Since the 1990s, the concept of “rule of law” has been enthusiastically embraced by international development actors and touted as the key to consolidating peace in post-conflict societies. Rhetorical overuse of the term has been matched by a proliferation of rule of law programs purporting to cover everything from legislative, judicial, and police reforms to land and property administration and market reforms. These programs, with their oversized ambitions, rely on a contested definition of what constitutes rule of law and what can be accomplished through international assistance. Such cookie-cutter, pre-packaged rule of law programs are unfortunately routinely favored over more strategic and carefully designed programs that apply very specifically to country and local-level environments and people’s needs on the ground. And much of development funding tends to go to formal institutions like judiciaries that are assumed to have the capacity and strength to deliver positive development outcomes. Unfortunately, that’s often not the case, especially in many developing countries where formal institutions are run by the elite, and local conflicts are more reliably resolved in informal institutions.

These expectations and assumptions about rule of law have led to a patchy record of performance in rule of law projects. The development industry expects too much from technical assistance projects that install formal laws and legal institutions. These expectations are driven by a set of faulty assumptions about the number of outcomes that can be achieved through rule of law assistance and when they can be achieved. The number is unrealistically high and the timing unrealistically short. We expect too much, too soon, with too little money, too much emphasis on technical precision, and too little on the embedded political, economic, and cultural dynamics that surround institutional change. In the worst cases, we support the wrong institutions to achieve the articulated goals and objectives.

When this happens, institutional support to strengthen rule of law mimics the drunk looking under the lamppost for his keys, not because he lost his keys there, but because that is where the light is. This poor record of performance led the World Bank to conclude that “less overall progress has been made in judicial reform and strengthening than in almost any other area of policy or institutional reform.” If goals and objectives were more realistically based on the historical evolution of existing institutions, perhaps funding would be more proportionate and our record of performance better.

So, given all of these complexities and shortcomings, what can be done?  First, we can put more emphasis on research and problem analysis, and resist the gravitational forces in policy circles for overly-simple answers. For example, American politicians and policy experts frequently assert that communities in Afghanistan and Pakistan, disillusioned by slow or non-existent secular courts, are won over by Taliban-styled fast justice. Indeed, disillusionment with the slowness of the secular courts was cited as a major cause for the success of the Taliban offensive in the Swat Valley in the winter and spring of 2009. Yet better research and analysis may reveal that the causal connections between institutional inefficiency and support for insurgency are not nearly as clear and simple as this. A closer look at people in the Malakand district reveals their restiveness and support for “sharia” in 1995, long before 2009. (Sharia in quotes because sharia and custom are often confused, and what constitutes “sharia” is highly contested even among experts.)

In 1995, one reason extremists resisted the secular courts was because criminal cases were pending against them in those courts. Moreover, an examination of court records in the Malakand district before the Taliban surge in early 2009 shows that the secular courts were working reasonably well by South Asian standards. These data points don’t prove that there is no causal connection between court performance and Taliban legitimacy. But they do suggest a need for more careful investigation into the factors that led to the movement against the civil courts by extremists in the first place, and then an investigation into the true extent of public support for the insurgents’ agenda.

Second, and related to the first, we can consider starting small programs while testing empirically causal connections, rather than starting big with unsubstantiated assertions. Starting big has two problems. One, it may completely miss the mark on helping people solve the problem that the assistance is purported to resolve. Two, rapid, “scaled-up” development assistance from organizations not truly grasping the complexity of the situation often runs the risk of creating new problems. Rather, if we keep experimenting wisely with small amounts of assistance at a local level, we are more likely to find optimal, nuanced solutions that are replicable.

Not surprisingly, ambitious projects based on broad, normative assertions should be met with scrutiny. Smaller projects based on specific knowledge, and that experiment, test empirical questions, and try to shed light on how development assistance can work most effectively in the long term should be encouraged. There is still much to be learned about how to best provide aid and assistance in the manner it is most needed.

Erik Jensen is The Asia Foundation’s senior advisor for governance and law, co-director of the Rule of Law Program at Stanford Law School, and a senior research scholar at Stanford’s Center on Democracy, Development, and the Rule of Law. He can be reached at ejensen@asiafound.org.

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