The Foundations of the Rule of Law – Time to Think and Act Politically

16 April 2019   ·   Sumit Bisarya

The ultimate test of the rule of law is whether or not it protects against tyranny. The legal and judicial profession is not always best placed to serve this purpose. In order to strengthen the rule of law in fragile and conflict-affected states, donors and technical assistance providers need to pay more attention to the foundational political environment, particularly constitutional design and political inclusion.

What should rule of law assistance look like in fragile and conflict-affected states (FCAS)? Where courts are broken or non-existent, and the reach and power of state-made law is weak, how can a country (re)build rule of law values? Donors and technical assistance providers like Germany need to look beyond the legal and judicial profession and think more about the elemental political environment as a starting point for rule of law development.

Former UK Prime Minister Gordon Brown famously stated that “in establishing the rule of law, the first five centuries are always the hardest.” No doubt arbitrary, despotic rule cannot transform into a robust rule of law society overnight, but there is inadequate consideration in the international rule of law assistance community as to what is possible in fragile and conflict-affected settings. The same rule of law toolkit which was used in Eastern European transitions to democracy and a market economy – training for judges and lawyers, strengthening of court administration, legislative reform, capacity building for the bar association, etc. – are rolled out in contexts such as Somalia, Afghanistan and Yemen. But in FCAS, legal and judicial institutions are weak or non-existent, and are unlikely to play a significant early role in building the foundations for the rule of law. Instead, we must think differently about what rule of law assistance is supposed to achieve in these settings, and how international assistance might best support these ends.

Heroic courts rarely spring from nowhere

The rule of law as an instrument can promote many public goods. These include strengthening national economic activity and foreign investment thanks to greater confidence in impartial and competent adjudication of commercial disputes, upholding fundamental rights through judicial review of legislation and litigation against offending laws and actions, and upholding law and order through efficient and non-partisan police and prosecutorial services. However, in its primary and most fundamental form it must be seen as a means to prevent tyranny by constraining power through the establishment of a ‘government of law and not of men.’

In most cases of FCAS, where institutions are feeble or destroyed and there is no culture of justice, relying solely on courts to constrain would-be tyrants is wishful thinking, and imagining this can be remedied through judicial training programs is to misdiagnose the problem. The problem is not a lack of knowledge and skills. Rather, more often than not the weakness of the court system in these contexts is either structural – when judicial appointment and tenure mechanisms do not promote independence – or systemic – when there is no strong culture of justice which can bolster the court in making courageous decisions. In the latter context, there instead exists a culture of intimidation and insecurity, and low judicial salaries coupled with poor anti-corruption measures make bribery a common and attractive practice. Heroic courts rarely spring from nowhere, and with the power of ‘neither purse nor sword’ they often must build up their own authority through popular legitimacy, legal authority and hard-fought independence.

Inter-dependency of political inclusion and the rule of law

But if the rule of law in its most fundamental incarnation – the prevention of tyranny –  is not to emanate from courts, then where does the rule of law in FCAS come from? Previously, together with W. Elliot Bulmer, I have argued for more modern attention to the ancient idea of a mixed constitution. In modern parlance, this means an increased understanding and appreciation of the inter-dependency of political inclusion and the rule of law.

Political inclusion, in its various forms, can be the font of the (re)construction of the rule of law in FCAS, for a number of reasons: Firstly, broad inclusion of different voices in politics can result in broader legal protections for different societal groups, in particular to protect minorities from majority oppression. Prevention of tyranny is as much about identity, autonomy and the allocation of resources, as it is about protecting fundamental rights. Without a voice in political institutions, marginalized groups are unlikely to be able to shape the law in a way which protects these interests, and courts are often powerless to take on issues like allocation of public power and resources. Strengthening the constitutional framework to allow for greater representation of societal interests should be a primary tool for promoting the rule of law in FCAS.

Secondly, different groups participating in political deliberation and debate is itself a force for moderation. This means that donors and supporters should pay attention to the design of institutional checks and balances amongst the principal branches of government, as well as the party-political landscape, and ensuring different societal groups can be represented in the political marketplace of ideas. Separation of powers means little if the same political group controls all branches of government. When supporting the rule of law in FCAS, Germany should make sure to have a sound understanding of their electoral systems, executive-legislative relations, local politics and political party laws.

Thinking and acting politically

Thirdly, mechanisms for public accountability can provide a crucial check on arbitrary rule. Elections are by no means perfect and are constantly under threat of manipulation, but recent cases from Sri Lanka to the Gambia show that they can act as a critical check on authoritarian government. Strengthening free and fair elections, for example by strengthening electoral dispute mechanisms, should also be an area of greater focus for the German government. 

None of this is to say that working with lawyers and judges is not also important in rule of law promotion in FCAS. Nor is it to say that strengthening political inclusion or public accountability is an easy feat in itself. But the ‘one size fits all’ blinkered approach that sees legal and judicial capacity building as the core of rule of law work in every context needs to be rethought, in particular in those contexts where constraints on power are more likely to come through the political environment, rather than the court system. Germany should adopt a broader, more tailored view of how the rule of law emerges in fragile and conflict-affected settings – ‘thinking politically’ about the rule of law has become a catchphrase to which the international community has paid lip service only, now it is time for German rule of law assistance to ‘act politically’ as well.