The Rule of Law Abroad: Learning from Experience and Listening to Locals
| DOI | http://doi.org/10.1111/1758-5899.12031 |
| Date | 01 February 2013 |
| Author | Thomas Kirk |
| Published date | 01 February 2013 |
The Rule of Law Abroad: Learning from
Experience and Listening to Locals
Thomas Kirk
The London School of Economics and Political Science
Promoting the Rule of Law Abroad: in Search of
Knowledge by Thomas Carothers (ed.). Washington, DC:
Carnegie Endowment for International Peace, 2006
Reforming Justice: a Journey to Fairness in South Asia
by Livingston Armytage. Cambridge: Cambridge Univer-
sity Press, 2012
Customary Justice and the Rule of Law in War-torn
Societies by Deborah Isser (ed.). Washington, DC: US
Institute of Peace, 2011
Advancing the Rule of Law Abroad: the Next Genera-
tion of Reform by Rachel Kleinfeld. Washington, DC:
Carnegie Endowment for International Peace, 2012
In 1998 Thomas Carothers wrote: ‘one cannot get
through a foreign policy debate these days without
someone proposing the rule of law as a solution to the
world’s troubles’(Carothers, 1998, p. 95). Through his
focus on foreign support for legal reform programmes in
insecure, developing and supposedly transitioning coun-
tries, Carothers aimed to question the dogmatic belief in
the rule of law as a panacea for everything from crimi-
nality and human rights abuses to the establishment of
free markets and democratic governance. In particular,
he challenged reform programmes that focus on writing
laws, training lawyers and the independence of the judi-
ciary with little regard for the wider political systems in
which justice institutions and actors are necessarily
embedded. However, as official rhetoric and contempo-
rary figures on aid spending and interventions from Haiti
to Afghanistan testify, promoting the rule of law has
remained a primary goal of many states and develop-
ment agencies. Nevertheless, the four books under
review suggest that academics and practitioners are coa-
lescing around a shared desire to learn from past experi-
ences and develop knowledge of how to approach this
lofty goal.
By 2006 Carothers’scepticism had led to the publica-
tion of Promoting the Rule of Law Abroad: in Search of
Knowledge. Opening with the aforementioned essay, the
edited volume’s contributors explore Carothers’original
contention and develop his argument that the rule of
law rarely arises through quick attempts to reproduce
western institutions in foreign climes. Furthermore, within
two new essays Carothers argues that reform efforts have
historically lacked an understanding of what the essence
of the rule of law is. Specifically, he outlines a disagree-
ment over whether the rule of law emanates from state-
based legal institutions or from wider sociopolitical rela-
tionships and norms common to societies. A belief in the
former encourages technical reform programmes focused
on institutional form and quantitative outcomes; the
latter requires changing value systems, breaking
down entrenched interests and generating consistent
leadership.
This disagreement is depicted as being central to the
vast amounts of treasure –and, in some cases, blood –
that have been devoted to promoting the rule of law
abroad since the ‘law and development movement’of
the 1960s. Although the movement was eventually dis-
missed alongside modernisation theory, Carothers argues
that the contemporary rationale for reform efforts –
namely supporting economic development and democ-
racy –should be, and is being, questioned. Moreover, he
throws into doubt the existence of ‘direct causal connec-
tions’between reform efforts and the two goals (p. 19).
For Carothers, these uncertainties have real impact on the
ground, with one practitioner reportedly confessing ‘we
know how to do a lot of things, but deep down we don’t
really know what we are doing’(p. 15). This lack of knowl-
edge leads Carothers to dismiss the notion of a coherent
rule of law reform field.
Continuing the editor’s theoretical exploration, Rachel
Kleinfeld’s contribution to Carothers’volume identifies
five separate meanings or goals of current rule of law
reform efforts. Kleinfeld argues that practitioners cherry-
pick from, and cobble together, these meanings in mis-
guided reform programmes. However, by overlooking
the inherent tensions between different goals and insti-
tutions reformers often unwittingly undermine the rule
of law in corrupt or predatory states by empowering
some groups or institutions over others. Thus, Kleinfeld
argues for holistic reform efforts that engage a country’s
formal legal institutions, law-enforcement apparatus and
supporting institutions (prisons, bar associations, legisla-
tors) simultaneously. In a similar manner, Stephen Go-
Global Policy (2013) 4:1 doi: 10.1111/1758-5899.12031 ©2013 University of Durham and John Wiley & Sons, Ltd.
Global Policy Volume 4 . Issue 1 . February 2013 125
Review Essay
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