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Particularly since the end of the Cold War, the rule of law has increasingly been recognized as an important aspect of conflict resolution and post-conflict peace building. Similarly, the absence of the rule of law is often implicated as a source of conflict, at the very least serving to perpetuate instability. Broadly speaking, the term 'rule of law' refers to the presence of transparent, evenly applied rules and statutes. Obligations, penalties, and procedures are clear to everyone. Similarly, a system in which the rule of law reigns supreme is one in which the process through which law is created is open and accessible to all. These rules apply equally to everyone regardless of class, ethnicity, religion and the like as well as also binding government organs. In other words, no one is above the law. Therefore, an a-political, uncorrupted police force is an important component. What is more, an impartial judiciary, in which everyone has access to the system, is necessary to adjudicate disputes. In many societies with a history of conflict and authoritarianism, however, these institutions are either ineffectual or complicit in the conflict. This brief introduction touches on the significance of the rule of law for conflict resolution.
The Absence of the Rule of Law
A lack of rule of law in a country can be a source of conflict in a number of different respects. Perhaps most obviously, the application of law favoring particular groups is likely to generate resentment amongst those slighted. Absent a productive means of channeling grievances (which ideally would involve the judicial system), disadvantaged groups may resort to more violent tactics. Vigilantism may be one extreme response where few alternatives exist aside from taking the law into one's own hands.
Countries lacking the rule of law also often face economic disadvantage, which may become a source of conflict. Development experts often point to the importance of having clear statutes for the enforcement of contracts and the like as a precursor to attracting significant investment and consequently economic development.[1]
The Contribution of the Rule of Law
The rule of law brings order to society. A properly functioning judicial system and police force can provide stability. Constitutional reform and the establishment of new legal entities to deal with justice issues in the post-conflict phase are thus important components to a peacebuilding effort. Ultimately, some argue reconciliation depends in part on the restoration of the rule of law.[2] The international community has focused much attention on the means through which it can best assist countries construct a rule of law system.
Some argue that constructing the rule of law requires more than just building new institutions for a brighter road ahead. Rather, they counter that reckoning with war crimes and other past abuses is also central to constructing and maintaining the rule of law. In their view, holding perpetrators of past abuses accountable for their actions lays an important moral foundation for the future. Depending on the particular circumstances, this might involve one or more transitional justice mechanisms such as trials, international tribunals, truth commissions, or lustration measures. Compensation and restitution are also crucial in correcting past wrongs.Many transitional justice experts see uncovering the truth about past abuses as an important part of entrenching the rule of law. It involves a social transformation in which the rule of law becomes a widely shared value. De Greiff has theorized that the connection between truth and the rule of law is through the development of civic trust.[3] In some circumstances, there may be call to trade some degree of truth for the rule of law such as granting amnesties to forego prosecution.[4] Otherwise, nervous perpetrators that retain significant power may find it more beneficial to disrupt the peace process to protect their interests.
[1] Building the Rule of Law http://www1.worldbank.org/publicsector/legal/building.htm; Rule of Law and Development site http://www1.worldbank.org/publicsector/legal/ruleoflawandevelopment.htm.
[2] Boraine, A. (1995). Introduction. The Healing of a Nation? A. Boraine and J. Levy. Cape Town, Justice in Transition: xiii-xxiv.; Crocker, D. A. (2000). Truth Commissions, Transitional Justice, and Civil Society. Truth v. Justice: The Morality of Truth Commissions. R. I. Rotberg and D. Thompson. Princeton, Princeton University Press: 99-121.
[3] de Greiff, P. (Forthcoming). Truth-Telling and the Rule of Law. Empirical Research Methodologies of Transitional Justice Mechanisms. Washington DC, United States Institute of Peace Press.
[4] Crocker, D. A. (1999). "Reckoning with Past Wrongs: a Normative Framework." Ethics and International Affairs.
Use the following to cite this article:
Brahm, Eric. "Rule of Law." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Research Consortium, University of Colorado, Boulder. Posted: March 2005 <http://www.beyondintractability.org/essay/rule_of_law/>.
Sources of Additional, In-depth Information on this Topic
Additional Explanations of the Underlying Concepts:
Online (Web) Sources
Building civilian capacity for U.S. stability operations: the rule of law component .
Available at: http://www.usip.org/pubs/specialreports/sr118.html.
Perito, Robert, Laurel Miller and United States Institute of Peace. Establishing the Rule of Law in Afghanistan.
Available at: http://www.usip.org/pubs/specialreports/sr117.html.
About the Report: Two years into the process of re-building Afghanistan, and in the wake of the adoption of a new Constitution in January 2004, this report evaluates the progress that has?and has not?been made in establishing the rule of law in Afghanistan. The report assesses efforts by Afghan institutions and international donors to develop the apparatus of law enforcement and administration of justice necessary to ensure that the rights and protections guaranteed to Afghans in their new Constitution can be meaningfully implemented. Both the reform process and priorities are analyzed with respect to police, courts, judges and lawyers, law reform, legal education, and corrections. Key cross-cutting challenges to rule of law development, such as narcotics and organized crime, are also addressed. The report is based principally on approximately 70 interviews conducted by the authors in Kabul and Washington during October and November 2003. Interviewees included officials of the Afghan government, judiciary, and commissions created under the Bonn Agreement, the United Nations, the United States and other donor governments, and non-governmental organizations, as well as independent observers. This report was written by Laurel Miller and Robert Perito of the Institute's Rule of Law Program.
Perito, Robert and United States Institute of Peace. Establishing the Rule of Law in Iraq.
Available at: http://www.usip.org/pubs/specialreports/sr104.html.
About the Report: The United States and its allies have taken military action to restore democracy and the rule of law in Iraq. Prior to the intervention, the United States Institute of Peace held a workshop on February 19, 2003 on "Establishing the Rule of Law in Iraq" to examine this challenge. The workshop's discussion focused on a paper prepared by Robert M. Perito, senior adviser to the Institute's Rule of Law Program. In addition to Perito, the other principal speakers at the workshop were Lt. Col. Michael Kelly, Australian Army, and Michael Hartmann, senior fellow at the Institute. Kelly discussed the application of the Fourth Geneva Convention in peace operations, drawing upon Australia's experience in Somalia and East Timor. Hartmann described the United Nations experience in using international jurists in Kosovo. Paul Stares, director of research and studies at the Institute, chaired the workshop.
Carothers, Thomas. The Rule of Law Revival.
Available at: http://www.carnegieendowment.org/files/CarothersChapter11.pdf.
Summary: One cannot seem to get through a foreign policy debate these days without someone proposing the rule of law as a solution to one problem or another. The rule of law is undeniably important to peaceful, free, and prosperous societies, but it is no quick fix. Imparting the rule of law to a society with no history of it involves changing the attitudes of masses and elites and creating a political culture in which nobody is above the law. Unfortunately, proponents of rule-of-law reform tend to have simpler, less lasting things in mind, like writing legal codes and sprucing up courts.
Offline (Print) Sources
Tyler, Tom R. "Procedural justice, legitimacy, and the effective rule of law." CRIME AND JUSTICE: A REVIEW OF RESEARCH 30, 2003.
Abstract: Legal authorities gain when they receive deference and cooperation from the public. Considerable evidence suggests that the key factor shaping public behavior is the fairness of the processes legal authorities use when dealing with members of the public. This reaction occurs both during personal experiences with legal authorities and when community residents are making general evaluations of the law and of legal authorities. The strength and breadth of this influence suggests the value of an approach to regulation based upon sensitivity to public concerns about fairness in the exercise of legal authority. Such an approach leads to a number of suggestions about valuable police practices, as well as helping explain why improvements in the objective performance of the police and courts have not led to higher levels of public trust and confidence in those institutions.
Chavez, R.B. "The evolution of judicial autonomy in Argentina: Establishing the rule of law in an ultrapresidential system." JOURNAL OF LATIN AMERICAN STUDIES 36, August 2004.
Abstract: This article uses a diachronic study of Argentina to explain how the nascent democracies of Latin America build the rule of law. The changing relationship between Argentina's executive and judicial branches demonstrates that the construction of the rule of law is not a linear process. There have been periods of regression away from, as well as progress towards, the rule of law. This article uses party competition to explain Argentina's varying levels of judicial independence. The rule of law results from a balance of power between at least two political parties, neither of which has monolithic control, meaning that no highly disciplined party sustains control of both the executive and legislative branches. Competitive politics creates a climate in which an autonomous judiciary can emerge.
Chavez, Rebecca Bill. The rule of law in nascent democracies: judicial politics in Argentina. Stanford: Stanford University Press, 2004.
This book explains how the rule of law emerges and how it survives in nascent democracies. The question of how nascent democracies construct and fortify the rule of law is fundamentally about power. By focusing on judicial autonomy, a key component of the rule of law, this book demonstrates that the fragmentation of political power is a necessary condition for the rule of law. In particular, it shows how party competition sets the stage for independent courts. Using case studies of Argentina at the national level and of two neighboring Argentine provinces, San Luis and Mendoza, this book also addresses patterns of power in the economic and societal realms. The distribution of economic resources among members of a divided elite fosters competitive politics and is therefore one path to the requisite political fragmentation. Where institutional power and economic power converge, a reform coalition of civil society actors can overcome monopolies in the political realm. - from Amazon.com
Kritz, Neil J. "The Rule of Law in the Post-Conflict Phase: Building a Stable Peace." In Managing Global Chaos: Sources of and Responses to International Conflict. Edited by Crocker, Chester A., Fen Osler Hampson and Pamela Aall, eds. Washington, D.C.: USIP Press, 1996.
The author discusses some of the structural and procedural elements essential to the functioning of the rule of law, including an independent judiciary, a law enforcement system, and a freely elected representative government. Reckoning with war crimes and other past abuses is also central to maintaining rule of law, and criminals must be held accountable for their actions. In some cases, this will involve removing government officials from their positions of power and instituting a new government. Compensation and restitution are also crucial, as well as constitutional reform and the establishment of new legal entities to deal with justice issues in the post-conflict phase.
Krznaric, R. and J. Foweraker. "The uneven performance of third wave democracies: Electoral politics and the imperfect rule of law in Latin America." LATIN AMERICAN POLITICS AND SOCIETY 44:3, 2002.
Abstract: This article investigates the performance of the new democracies of the third wave by developing a conceptual model of the core elements of liberal democratic government and by constructing a new Database of Liberal Democratic Performance. The performance is shown to be uneven in two main ways. First, the institutional attributes of democratic government advance while individual and minority rights languish. Second, particular institutional attributes coexist uncomfortably, as do particular rights. A comparison of Brazil, Colombia, and Guatemala complements the big picture drawn from the database and focuses on the specific contextual conditions that can create the general political contour, of the wave. The uneven democratic performance of these cases is mainly explained by the combination of persistent oligarchic power and a largely unaccountable military. Yet uneven performance, and the imperfect rule of law in particular, does not necessarily prevent democratic survival.
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