Second generation rule of law and anti-corruption programming abroad: comparing existing U.S. government and international best practices to Rachel Kleinfeld's advancing the rule of law abroad; next generation reform.

• Author: Bushey, Adam J.

1. BREAKING RULE OF LAW DOWN TO ITS CORE II. WHY ROL PROJECTS FAIL AND CHALLENGES TO ROL REFORM III. GOAL OF ROL REFORM IV. FOUR APPROACHES TO REFORM V. REFORM STRATEGY We don't have to be stupid or ineffective to fail--just misguided in our approach.

   --General Stanley McChrystal (1)

   Published in 2012, Rachel Kleinfeld's debut book, Advancing the Rule of Law Abroad: Next Generation Reform, (2) was selected by Foreign Affairs magazine as one of the best foreign policy books of that year. (3) Dr. Kleinfeld has an impressive background and extensive experience with the rule of law. She is the co-founder of the Truman National Security Project and a senior associate with the Democracy and Rule of Law Program at the Carnegie Endowment for International Peace, and she has consulted for the World Bank, the EU, the OECD, various government agencies, and multiple private organizations on building the rule of law in weak states. (4)

1. BREAKING RULE OF LAW DOWN TO ITS CORE

   Dr. Kleinfeld explains that Rule of Law (ROL) programming, generally, supports legal, judicial, and law enforcement reform efforts. (5) However, what makes Dr. Kleinfeld's book so informative is not how she defines ROL, but her understanding and articulation of the core elements of ROL. Dr. Kleinfeld explains that ROL is primarily about power and the existence (and ability) of structures to check and balance that power. (6) Additionally, and perhaps secondarily, it is about cultural norms and habits. (7)

   Therefore, according to Dr. Kleinfeld, ROL programming should fundamentally be about constraining power in a society--both the power of the government and the power of individuals. Her definition of a society that follows the ROL is one in which: (1) the government is bound by, and governs through, pre-existing laws; (2) citizens are treated equally before the law; (3) human rights are respected; (4) law and order prevails; and (5) citizens have access to efficient means to settle disputes. (8)

   It is important to note that there is no consensus on the definition of ROL. (9) This is partially due to the fact that development agencies (10) often approach ROL programming with different objectives (e.g., economic, political, human rights, human security, democracy). Dr. Kleinfeld's definition is in line with both the U.S. Agency for International Development (USAID) and the United Nations (UN) definition of ROL. USAID identifies five areas of ROL programming--order and security; legitimacy; checks and balances; fairness; and effective application (11)--in its framework, which was developed in 2010 following the completion of case studies in multiple countries over a period of several years. (12) According to the UN, the ROL:

   refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. (13) II. WHY ROL PROJECTS FAIL AND CHALLENGES TO ROL REFORM

   According to Dr. Kleinfeld, all ROL programming is conducted in four focus areas: laws, institutions, power structures, and cultural and social norms. (14) Dr. Kleinfeld explains that, historically, laws and institutions have been the main targets of ROL reforms. (15) However, programs focused on laws and institutions often do not address the fundamental popular and professional norms that must be altered to affect meaningful change. Instead, ROL reform efforts need to focus on the role of power structures and culture. (16) ROL programs can do this by: (1) creating horizontal and vertical checks and balances on power; and (2) using researched techniques, based on country-context, that change cultural behaviors, whether in the society as a whole or among ROL professions (e.g., judges, lawyers, law enforcement).

   The goal of ROL reform is to help restore the relationship between the state and society. (17) Dr. Kleinfeld believes that when ROL projects fail, it is because the ROL practitioner set shortsighted, narrow goals. Instead of focusing on the reform needs and constraints as seen by locals (e.g., an anti-corruption initiative), outside ROL practitioners tend to focus on building ROL institutions (e.g., court houses, case management tracking systems) that mirror those in the West. (18)

   A changed institution should not necessarily be a goal in and of itself. Such programming often does not address the root causes of challenge within the ROL system, such as distrust, systemic corruption, or a lack of capacity--root causes that are all associated with power and culture.

   While mirroring Western constructs in programming is an issue, Dr. Kleinfeld may overstate its existence. U.S. Government (USG) programs in the past often emulated Western systems with little in-country context. (19) However, in recent years, the USG development principles have pushed programs to be more focused on hiring local experts and finding best-fit programs instead of using one-size-fits-all approaches. Country context programming is evident through the USG's recent work with the informal justice sector, although more country context programming could be done both in this sector and in other areas of areas of ROL generally. (20)

   Liberia provides a strong example of how USAID studied a state's cultural norms and country context to link the informal (i.e., non-state) and formal justice systems. According to a 2008 Oxford University survey, rural citizens use the formal court system in Liberia less than 5 percent of the time for both criminal and civil matters. (21) Liberia is trying to build citizen trust in its formal justice system while at the same time remedying some non-state approaches that run counter to basic human rights, gender rights, and Liberia national law. However, most Liberians prefer the non-state system because it is seen as: (1) having lower fees; (2) less arbitrary; (3) more transparent; and (4) less susceptible to bribery. (22)

   Through ROL programming, the Ministry of Internal Affairs and the Ministry of Justice (MOJ) have signed several Resolutions/Memoranda of Understanding with informal justice sector leaders. The Carter Center ROL program, supported by USAID, (23) is developing trust and a linkage between the two systems. It is hosting consensus building participatory meetings that, while time-consuming, are effectively building community buy-in for a dual court system with checks and balances. (24) The Carter Center also created community plays, community forums, radio commercials, and music that focused on: (1) how to use the formal system; and (2) important new laws that the nonstate system was required to adhere too (e.g., inheritance rights, sexual assault protections, land dispute laws). (25) In Liberia, the MOJ and Carter Center's focus on specifically educating rural people about their rights was an important component to the overall non-state ROL program. (26) While the program had challenges, (27) it has proved successful.

   Similar to Dr. Kleinfeld's approach, USAID's Guide to Rule of Law Country Analysis also suggests caution before using cookie-cutter ROL programs as avenues to explore. Specifically, it states that "[o]bvious flaws in the legal system (such as lack of judicial independence...) are only symptoms. The underlying malady is the power of entrenched political and economic elites who benefit from a compliant legal system or ethnic or regional domination." (28)

   ROL practitioners face great substantive challenges, which include: (1) getting political actors to give up power to allow for more accountability and internal controls; (2) changing cultural norms; (3) battling institutional and societal corruption; (4) unanticipated consequences of resource allocation; and (5) strengthening civil society to advocate for change. To succeed despite these and other challenges, ROL programs must incentivize political actors to give up power and change cultural norms, whether by offering motives (e.g., financial rewards, nonfinancial rewards, media oversight, punishments) or by helping civil society actors on the ground push for change. By giving up some power and control, (29)...