If the law is aloof, opaque and shrouded in mystique, the rule of law is prevented from spreading and strengthening. Today’s rule-of-law industry is illustrative of this. At times it appears so mired in cant and humbug, real partnerships between the law and societies are inhibited from developing. But, while John Maynard Keynes’ dictum – “The difficulty lies not in the new ideas, but in escaping from the old ones” – continues to be more pertinent to the fusty, stuffy, fuddy-duddy law than almost any other field, progress towards the rule of law may well continue at its current glacial pace.
The rule-of-law industry’s birth was more or less in the 1960s and early 1970s, when the US’s Law and Development effort attempted to reform the judicial and legal systems of developing countries. Even its main supporters deemed it a failure on the grounds that local ownership of the projects was absent, it was focused on the formal legal system to the detriment of traditional and informal mechanisms and was premised on the belief that the American legal system could be transplanted into developing countries.
Shocking erosion of the rule of law in the U.S.
Today, although the American Bar Association, with is rousing shibboleth, “Defending Liberty and Pursing Justice”, has 400 staff working on its rule of law initiatives around the world, its very credibility is threatened by the shocking erosion of the rule of law in the U.S. itself in recent years.
Thomas Carothers of the Carnegie Endowment for International Peace in Washington, confirms the more general malaise: “the rapidly growing field of rule-of-law assistance is operating from a disturbingly thin base of knowledge at every level.” Aid organisations are often more interested in the next project than learning lessons from their previous ones; participating lawyers are not particularly interested in development; and university professors are not much bothered with applied policy research.
Two other prominent protagonists in the rule-of-law field, professors Michael Trebilcock and Ronald Daniels of Toronto University and the Johns Hopkins University, respectively, remain scathing of the “decades of both practical experience with and scholarly reflection upon legal reforms in developing countries”, which they say “at the end of the day…. are remarkably inconclusive”.
White elephant progenitors
The fact is that despite the best of intentions, copious amounts of money and, seemingly, the best advice available, rule of law building by prominent players in the field – such white elephant progenitors as the World Bank, the IMF, the regional banks and USAID – has seldom produced stable democracy, long-term economic growth and the rule of law. In fact, on average, 39 per cent of states emerging from conflict return to conflict in the first five years, another 32 per cent return to conflict in the following five years, according to the World Bank Report, ‘Rule of Law Reform in Post Conflict Countries – operational initiatives and lessons learnt’.
However, unlike, say, the American car industry, the rule-of-law industry has not been convulsed into change, because the money keeps on coming. Indeed, rule-of-law building, while short on results is still very much awash with cash. Billions have been and continue to be poured into rule-of-law projects that often turn out to be white elephants.
By way of modest example, the World Justice Project (WJP), a spin-off from the American Bar Association, has some US$3 million to spend each year. Last year it staged the multi-disciplinary World Justice Forum III, in the luxuriously cavernous five-star Hotel Rey Juan Carlos I, in Barcelona, which is about as far from the living conditions of the four billion poor on this planet, who must struggle to survive outside the rule of law, as it could possibly be. One wonders why the WJP does not seize the opportunity to make a considerable impact on remiss nations, through holding its Fora in the very developing countries where corruption is rife and the rule of law almost non-existent.
Courage is needed to achieve outcomes, rather than engaging in the stuffy, deliberative, deadening processes found in courts. Some of the on-stage discussions at the Forum, for instance, were mind-bogglingly dry and academic, in which some speakers simply grandstanded their hobby-horses regardless of the subject matter in hand. This rather confirmed just why rule-of-law building initiatives, albeit money spinners for be-suited, globe-trotting, so-called experts whose lives are the very antithesis of those of ordinary folk in the developing world, often do not achieve their objectives.
Oddly, WJP Founder, President and CEO, William H. Neukom had Cherie Blair (née Booth), judge, co-founder of the Africa Justice Foundation, wife of a former prime minister of Britain and a high-fee barrister, fly in to give a short speech at the Forum’s opening reception. Mr. Neukom, in his introduction of her, rather curiously made reference to Mrs. Blair’s time in government before she returned to the legal profession. Was it this presumed role ‘in government’ that caused her to controversially use an official government car and driver, funded by the British taxpayer, for seven months after her husband stepped down as prime minister?
There are also other paradoxical issues that cast doubt on the Blair family’s commitment to the rule of law. With the Hotel Rey Juan Carlos I’s vast swimming pool between her and her audience, Mrs. Blair twice quoted the “late, great Lord Bingham, a pioneer of human rights law”. Lord Bingham, a former Master of the Rolls, Lord Chief Justice of England and Wales and a senior law lord, was a great advocate of the rule of law, declaring that its observance “is perhaps the nearest we can get to a universal, secular religion”. Significantly, it was he who, after retiring in 2008, argued that Cherie Blair’s husband’s invasion of Iraq in 2003, was in violation of the rule of law. Tony Blair’s pressure on the Serious Fraud Office in 2006 to drop its investigation into alleged bribes paid by BAE in connection with the £43 billion al-Yamamah arms deal with Saudi Arabia, is seen by many in the same light.
If the rule of law is to spread and strengthen, then commitment to it must be seen to be unequivocal and must not be compromised by those who are themselves compromised in their commitment to it.
Refreshing and heartening, however, was the speech by Beverley McLachlin, Chief Justice of the Supreme Court of Canada, who rightly emphasised the need for transparency and accountability to civil society if confidence in government and legal infrastructure is to be maintained.
Become engaged, press for and work towards justice
Establishing the rule of law requires deep societal changes which can only be effected if the population comprehends, assents to and is instrumental in formulating and implementing them. Thus, top-down, lawyer/bureaucrat/academic-led approaches that aspire to mimic Western systems, cannot succeed, especially where the local social dynamics are ignored. Instead, key stakeholders, such as NGOs, the business and legal community – indeed, civil society in general – need to be provided with the tools to become engaged, press for and work towards justice and the rule of law. Those tools are information on the workings of their legal system and those who man them. Only with these can society bring police, judges and prosecutors to account, so that they serve society as a whole, rather than themselves and certain privileged coteries.
Until the old ideas are escaped from and this lesson is thoroughly learned and imbibed, patient societies around the world will remain very sick, while lawyer/bureaucrat/academic doctors apply lucrative quackery instead of the medicine that is really needed.
See AH Monjurul Kabir's article on this subject. AH Monjurul Kabir, who is a lawyer and governance adviser, specialising in rule of law, justice and human rights, says the law: does not relate to real, everyday issues, particularly for the marginalised; it is inaccessible; and there is neither the will nor the capacity to reform it. He goes on: "We are yet to harness the full potentials of innovative technologies and social media in the justice and governance systems." "Rule of law institutions and services," he says, " will have to be more inclusive, innovative and accessible."