Getting Rule of Law Reform Right

By Frank Richardson

Published on May 22, 2014

To all free men of our kingdom we have ….. granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs:

Article 38 – In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it

Article 39 – No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land

Article 40 – To no one will we sell, to no one deny or delay right or justice

This, of course, comes from the Magna Carta of 1215, by which feudal barons limited the power of King John of England. The Charter provided for the establishment of a committee of 25 barons who could meet at any time and overrule the will of the King if he defied its provisions. They reserved the right to seize the castles and possessions of the monarch, should he not comply. However, the Magna Carta was, in fact, a subterfuge, for the barons really wanted the overthrow of the King. Conveniently, he died, probably from dysentery, in the subsequent year.

Nevertheless, according to Lord Bingham – who was successively Master of the Rolls, Lord Chief Justice of England and Wales and Senior Law Lord of the United Kingdom – “the Charter was important because it represented and expressed a clear rejection of unbridled, unaccountable royal power, an assertion that even the supreme power in the state must be subject to certain overriding rules.”

What Lord Bingham is describing, in essence, is an embryonic change in the balance of power. Very perceptively, Thomas Carothers of the Carnegie Endowment for International Peace in Washington, writes: “[Achieving the rule of law] is a transformative process that changes how power is both exercised and distributed in a society and thus a process inherently threatening to existing power-holders.” Those in the rule of law industry who fail to acknowledge that such changes in the balance of power in societies are likely to meet with very stiff resistance, are either disingenuous or grossly naïve.

Accordingly, the Magna Carta, did not bring the rule of law to England, albeit it was an important part of the process. For centuries after the Magna Carta, the power of the monarch was subject to few constraints and injustice for the ordinary person remained pervasive, with frequent hangings taking place for even minor felonies and on the flimsiest of evidence. In any case, the Magna Carta applied to freemen, of whom there were few in feudal England at the time, and it was also in Latin and, therefore, incomprehensible to the ordinary person, assuming they could even read.

“The rule of law is the foundation of a civilised society,” affirms the International Bar Association. “It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect’. Since the rule of law is recognised as a panacea for so many of the ills of society, one has to ask: why is it not more mainstream and global in being aspired to, particularly by those mired in exploitation, abuse and poverty?

Why, since it tackles the same issues, does it have none of the appeal of the Save the Children Fund or Oxfam? It seems that even the average person in countries where the rule of law subsists, is unlikely to know what the rule of law is, let alone those in developing countries and who must deal daily with the factors ranged against it; that is, in Bertolt Brecht’s words, the exploited “who don’t understand [the law], or are prevented by naked misery from obeying it.” Is this because it has become the preserve of so-called experts and, through being such, is doomed to failure?

For the rule of law to take hold in a country certain conditions must exist internally and, in this globalised world where the influence of foreign powers can be brought to bear, externally too. The requisite conditions in which the rule of law can be nurtured, will vary from country to country and from era to era; but by looking at the features of the milieu in England as the rule of law developed from the 15th to the 18th century – particularly at changes in civil society (that is, individuals and organisations in society that are independent of government) – many of them can be deduced:

(1) mid-15th-century Europe, Gutenberg’s printing press played a pivotal role in the renaissance of literature, the spread of education, the dissemination of non-establishment ways of thinking and advances in the administration of justice and the promulgation of legal principles and statutes;

(2) 15th century England saw improvements in metalworking and shipbuilding and the growth of the English cloth industry, which helped establish a mercantile class trading internationally;

(3) between the late 16th and early 18th centuries, the extension of coastal and river freight and advances in sailing technology brought an expansion in empire and trade. With the growth of the mercantile class, attitudes towards business, religion, community and social stratification changed;

(4) abuses of power by the Stuart monarchy led to the adoption of the Petition of Grievances in 1610, which established the right of citizens to petition government to seek redress for abuses of power;

(5) from about 1650 to 1700 saw the commencement of the Enlightenment or Age of Reason, which promoted scientific thought, scepticism and intellectual interchange and opposed superstition, intolerance and some abuses of power by the church and the state;

(6) from mid-17th century non-conformist Protestant groups were breaking away from the establishment’s Church of England;

(7) the Habeas Corpus Act of 1679 was passed to define the ancient prerogative writ of habeas corpus, forcing courts to examine the lawfulness of a prisoner’s detention;

(8) in 1689 the Bill of Rights reinforced the Habeas Corpus Act, the Petition of Right, the Petition of Grievances and set out, amongst other things, that there should be:

a. No royal interference with the law. Though the sovereign remains the fount of justice, he or she cannot unilaterally establish new courts or act as a judge.

b. The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament,

c. No excessive bail or “cruel and unusual” punishments may be imposed.

d. The right to trial by jury.

(9) partly because of the expansion of empire and trade (particularly cotton from the slave plantations of the US), as well as the the creation of private companies, between 1700 and 1850 the economy of England was transformed from agricultural to mostly industrial;

(10) the industrial revolution brought improved transport and communication and, from 1700: roads were improved, canals built, sailing technology advanced and, in the 19th century, railways developed. This greatly aided Britain’s trade; providing a means of transporting goods, as well as distributing mail and news;

(11) by the 1720s, after the earlier lifting of controls, there were twelve London newspapers and 24 provincial papers;

(12) from the 18th century trades unions were established;

(13) in the 1780s, the formation of the Society for Constitutional Information, as well as other organisations, exemplified the reform activity of the up and coming mercantile class:

(14) around 1775 the industrial revolution began to create demand for mass education and in 1807 Parliament made provision for the education of ‘the labouring classes’;

(15) by the early 19th century, there were 52 London papers and over 100 other titles.

This would seem to suggest that education, the dissemination of information, private enterprise, class-structure changes, the challenging of conventional ideas and the development of civil society, play an important part in the strengthening of the rule of law.

For example, with regard to civil society’s development, with the exception of communist and former communist countries where unions were state controlled, there is some correlation between the density of trades unions in a country and that country’s adherence to the rule of law: at the top we have: Iceland 88%, Sweden 71%, Finland 70% and Denmark 69%, and at the bottom: Nigeria 10%, Turkey 8%, Morocco 5%, Tanzania 5%, Oman 0%, Qatar 0%, Saudi Arabia 0%, United Arab Emirates 0%. The same is likely to hold true for other non-government civil society organisations. Perhaps it was out of such recognition that Lelia Mooney, who serves as the Rule of Law Officer of the American Bar Association, International Law Section and is a former Chief of Mission of the USAID-funded Democracy and Governance project in Paraguay, went about creating a network of more than two hundred civil society organisations in the Latin American region committed to fostering governance reform. It remains to be seen whether such organisations that are not primarily domestically driven can be effective and sustainable.

I’ve mentioned some of the features that are conducive to the rule of law; but where one country has been dominated by another, the justice sector is likely to display features which are not amenable to the rule of law at all. Colonialism, for example, meant that the legal systems of many developing countries were often little more than culturally inappropriate transplants from erstwhile European colonisers (often with laws in a foreign language, unintelligible to most of the populace), aimed at keeping the native population in check. Moving from such a system of rule by law that was bequeathed to these states on gaining independence, to rule of law, domestically driven, is a tall order, fraught with difficulties.

Cognisant of the need for reform, in the Democratic Republic of Congo in 1960, for example, Patrice Lumumba, the country’s first legally elected prime minister, advocated the full revision of the Belgian colonial legal system and its laws, stating in his Independence Day speech, ‘We [the Congolese people] have had our lands despoiled under the terms of what was supposedly the law of the land, but was only a recognition of the right of the strongest… We are [now] going to see to it that the soil of our country really benefits its children. We are going to review all the old laws and make new ones that will be just and noble.’

Unfortunately, the levelling of the playing field, which the rule of law effects, may be the last thing a foreign hegemonial power seeks, as it conspires to put a certain person or coterie in power that is amenable to it and compliant. If so, such a power is likely to take all possible steps to subvert the rule of law. In the Congo in 1960s, the shift in the balance of power was, for some that included Britain, Belgium and the US, too much to bear and, inevitably, a few weeks after his Independence Day speech Lumumba was deposed, tortured and murdered. Unfortunately for him, to obtain support in order to rid the Congo of colonial rule, Lumumba was perceived to be gravitating toward the Soviet Union, despite his declaration that he found colonialism and communism equally deplorable, and his personal preference for neutrality between the East and West.

Another post-colonial leader of similar ilk and time as Lumumba, was Sukarno of Indonesia. As one of the founding fathers of the Non-Aligned Movement, Sukarno, who had also managed to raise the hackles of the British by launching cross-border raids into Malaysian territory in early 1963, met an early death after his toppling in 1965 and the slaughter of one million or more of his countrymen in which the US was complicit. That slaughter produced a deep national trauma that, in all likelihood, set justice and the rule of law in Indonesia back for decades, particularly since, to protect those in the elite and overseas who were complicit, the elephant in the room, namely the truth about the past, is even now being allowed to die along with its ageing survivors. Indeed, Colette Rausch, director of United States Institute of Peace’s (USIP) Rule of Law Center of Innovation, confirms that, “Rule of law reform is affected by history and unresolved aspirations and abuses on a war-torn population.”

Thus, the power vacuums left behind when colonial powers withdrew often came to be filled by aspiring elites that would collaborate with the former imperial master or other foreign power. Such indigenous coteries would usurp the transplanted colonial legal systems to tyrannically oppress, not only to continue to enjoy life in the privileged manner to which they had become accustomed, but also to ensure impunity for past and future misdeeds. To the judges, police and prosecutors who came to be in the thrall of such despotic, post-independence regimes, the quintessential qualities required for the rule of law to subsist – namely: integrity, independence, diligence, equality and impartiality – were seen as mere encumbrances. Since concepts such as equality before the law and serving the public were entirely alien to such officials, in any later phases of transition to democracy, their roles could well transmute into serving a tyranny of the corrupt.

The consequence of all this is that in many developing countries today, detainees are routinely tortured for confessions, sexual favours are extracted from female suspects, and bribes are regularly demanded by corrupt judges, prosecutors and police. Furthermore, the judiciaries of such countries are often highly dependent on and, therefore, inappropriately influenced by government authorities and political parties, frequently advancing the interests of the ruling elite, instead of protecting individual rights and freedoms and promoting access to justice. Exacerbating the problem of lack of independence and endemic corruption and violence, is the fact that justice sectors in such countries are entrenched and resistant to change.

Where, however, throwing off the yoke of a foreign power had been effected by a war of independence as, for example, happened in Indonesia, the kudos, stature and resources acquired by the country’s military, coupled in some cases with naive faith in benevolent dictators, tends to even further entrench rule by law, making the transition to the rule of law that much harder.

Thomas Carothers notes that over the past decade, as more authoritarian and semi-authoritarian governments publicly embraced a rule-of-law agenda, they tended to prefer, what he terms, “the more reductive, proceduralist conception of it”, often on the very doubtful pretext of sequentially proceeding to democracy. These features, says Carothers, “risk sending rule-of-law promoters down wrong paths that can result in wasted efforts and bad policy decisions.”

Beneath the veneers in some emerging economies, such as Brazil and Indonesia, that do appear to be “sequentially proceeding to democracy” and to foster the rule of law, the constitution is being violated, corruption is rampant, government abuse is pervasive and civic rights – such as freedom of speech and the press that help reinforce the rule of law – are being undermined.

Intervention against post-independence regimes was very much part of American overseas realpolitik during the Cold War. That most infamous of interventions – the Vietnam War – which the North Vietnamese government viewed as a colonial war against a peasant society, is estimated to have left between one million and 3.5 million Vietnamese, Cambodians and Laotians dead. But anarchic, Cold War bloodbaths did not only occur in Asia at that time.

From 1961 the US Army School of the Americas was assigned the specific goal of teaching “anti-communist counter-insurgency training”. It also trained several Latin American dictators and, during the 1980s, taught methods of torture, which, of course, is entirely at odds with the rule of law. Furthermore, in the 1970s, America provided technical support and military aid to the participants of Operation Condor, a campaign of political repression, assassination and terror, mainly in Argentina, Chile, Uruguay, Paraguay, Bolivia and Brazil. Extra-ordinary rendition, indefinite detention without trial at Guantanamo and water-boarding are, therefore, merely the US’s modern-day derogations from the rule of law, but directed at a new perceived threat conveniently lumped together and labelled ‘Islamic extremists’.

Therefore, given the Cold War milieu of the 1960s and 1970s, and the abiding paranoia in relation to the Soviet Union by the West, some ambivalence was inevitable as the US’s Law and Development Movement – backed by USAID, the Ford Foundation and other private American donors – set about reforming the judicial and legal systems of various countries in Africa, Asia, and Latin America in the 1960s. The dominant view of the movement’s law and development practitioners and theorists alike, was that law reform could lead social change, and that law itself was an engine of change. It was also believed that the huge gap between statute law and the law in practice in developing countries could be closed by educating lawyers – oddly enough, particularly in commercial law – and turning them into legal activists. The focus later shifted to legal aid; but, with foreign legal consultants dictating the content and pace of reform, the effort was deemed a failure, even by its main supporters, on the grounds of lack of local ownership, a focus on the formal legal system to the detriment of traditional and informal mechanisms and the ideologically premised belief that the American legal system could be transplanted into developing countries.

Reform later shifted to include the creation of new criminal justice institutions, such as the prosecution service and public defence, restructuring and the professionalising of institutions such as the police, as well as the provision of new equipment and infrastructure.

By the end of the 1980s there was increasing emphasis placed on judge training, judicial independence, constitutionalism, the promotion of civil and political liberties, reforming criminal law, and an overall systemic approach to the development of formal legal systems. Since the end of the Cold War the focus has frequently been on wholesale changes to criminal procedural law, as well as constitutional, commercial and administrative law.

At the same time, efforts were made to make courts, prosecution services, the police, public defender institutions, prison administrations and law schools “more competent, efficient, and accountable.” Attempts were also made to harness the domestic political, economic and social elite to press for government to be subject to the law and, thus, for judicial independence.

Yet, despite the best of intentions, copious amounts of money (in 2009 alone, according to OECD data, $2.6 billion was spent on judicial and legal reform by the OECD’s Development Assistance Committee – oddly, figures are hard to come by) and, seemingly, the best advice available, top-down, rule of law building by prominent players in the field – such 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. All to often, rule of law reform smacks of trying to force-grow orchids in permafrost on Svarlbard. Without the right ambient conditions it simply will not work.

“Despite massive ongoing investment in both judicial reform and evaluative endeavours, we remain unable to demonstrate success,” writes a specialist in judicial and legal reform, Dr. Livingston Armytage, in his book titled ‘Reforming Justice – A Journey to Fairness in Asia’. “Deep down we do not know what we are doing,” he quotes a rule-of-law practitioner as saying.

The 2006 World Bank Report, ‘Rule of Law Reform in Post Conflict Countries – operational initiatives and lessons learnt’ elaborates further on this unhappy state of affairs. The Report gives the reasons for failure as: lack of coherent strategy and expertise; insufficient knowledge of how to bring about change; form over function; formal over informal and traditional mechanisms; tangible short term reforms over long term strategies; wholesale over incremental and context-determined change; the need for local ‘agents of change’; the paradox of local ownership; rushed and compromised constitution-making; poorly designed training and legal education programmes; and sequencing and prioritizing difficulties.

Two concurring prominent protagonists in this 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”. Colette Rausch concurs: “For those who have worked in the rule of law field over the years,” she writes, “the one thing they have learned is how little they really know.” “The reality hit us that it is not just about fixing a set of static systems in a technical and mechanical way. The fact is, humans are involved in the equation, and that very dimension changes the game.”

“The rapidly growing field of rule-of-law assistance is operating from a disturbingly thin base of knowledge at every level.” confirms Thomas Carothers . “[Diverse national and international actors],” writes Carothers in his excellent 2009 paper titled ‘Rule of Law Temptations’, “may all proceed with a putatively common rule-of-law agenda, but in practice pursue quite different preoccupations, either in relative isolation from one another or sometimes at cross purposes.” He also asserts that: “Relatively few citizens of countries in the former Soviet Union, South America, sub-Saharan Africa, South Asia, and elsewhere would say that the apparent global consensus on the importance of the rule of law has translated into actual marked improvement of the state of law in their societies.” Indeed, he points out that: “Even established democracies can fall short on the rule of law”, and, by way of example mentions Italy and the US, where in recent years the rule of law in the latter has been seriously eroded in the name of the so-called War on Drugs, the War on Crime, and the War on Terror.

Thomas Carothers attributes one of the causes of the failure of rule-of-law programmes to the ideological differences of conservatives, centrists and socialists with regard to what the rule of law means, as well as the different focus of the different professions involved with ‘the law’. He rightly asserts that, “achieving the rule of law involves far more than getting judges trained, putting modern police equipment in place, and reprinting and distributing legal texts.” But these options and others, such as passing a few laws, training a few prosecutors and defence lawyers, setting up some courts, are often jumped at because they are easier to implement than options that actually work.

The rule-of-law industry resembles a schooner of old whose sails are filled with wind, yet that finds itself without destination, rudder, chart, compass or sextant. The industry appears not to know what it is trying to achieve, cannot decide on the methods to achieve what it might want to achieve, nor how to measure whether what it might want to achieve has been achieved. Certainly, in the unforgiving business and military worlds, such an approach would be a recipe for disaster.

“As for the people involved,” writes Colette Rausch, “time and again, practitioners have seen that there are actors (national and international) who are more interested in enhancing their own financial or career interests and are not focused on service to the broader goal of enhancing rule of law toward establishing a peaceful society.” Some such careerists have rendered the industry anodyne and sanitised it, thus taking the humanity and, therefore, the passion out of lifting billions out of exploitation, abuse and poverty.

Furthermore, rule-of-law organisations are accused of being more interested in the next project than learning lessons from their previous ones; participating lawyers of not being particularly interested in development; and university professors of not being much bothered with applied policy research. Few organisations could survive such an amorphousness, let alone an entire industry.

However, by having an understanding of and sensitivity to the history, culture and social dynamics of the country concerned; participating in dialogue; and treating people fairly and with respect to gain trust; international reformers can facilitate the process towards the rule of law. Practitioners need, in particular, to ensure the assumptions underlying their efforts are based on rigorous questioning, theorising, and testing, for currently the dearth of well-developed conceptual and empirical underpinnings is a major concern. Lelia Mooney writes in a paper titled ‘Promoting the rule of law abroad’ that, practitioners and the rule of law community “need to step back from merely engaging in designing and implementing projects in a reactionary mood and begin engaging in a different conversation among those engaged in this process.”

Rule of law practitioners, asserts Lelia Mooney, must “evolve and develop more creative, holistic, multi-disciplinary, cross-sector, demand driven and coordinated interventions. This requires creative, strategic, and tactical thinking and acting that needs technical expertise combined with a multi-disciplinary framework that explores what is the role of rule of law promotion efforts within a particular context.”

A common sense way of coming up with effective strategies to strengthening the rule of law, is to look at what colonial and tyrannical post-colonial regimes and their patrons did to weaken it and do the opposite, namely: provide information that furthers transparency with regard to how police, prosecutors and the judiciary function; make justice sector officials accountable; strengthen civil society and engage it with the drafting and practice of the law; and nurture and encourage outspokenness and action against injustice. Computers, the internet, online social networking and broadband make this possible like never before.

The Atlanta Declaration and Plan of Action for the Advancement of the Right of Access to Information of 2008, proclaims that the right of access to information is ‘fundamental to human dignity, equity and peace with justice’. “Withholding information is the essence of tyranny. Control of the flow of information is the tool of the dictatorship,” affirms the author, Bruce Coville. Apparently in agreement, Kofi Annan, a former Secretary-General of the United Nations, asserts that, “Knowledge is power. Information is liberating.” Even Ronald Reagan concurred with: “Information is the oxygen of the modern age. It seeps through the walls topped by barbed wire, it wafts across the electrified borders.” What is more, there appears to be a consensus across the political divide, for Hillary Clinton reminds us that, “There are 4 billion cell phones in use today. Many of them are in the hands of market vendors, rickshaw drivers, and others who’ve historically lacked access to education and opportunity. Information networks have become a great leveller, and we should use them together to help lift people out of poverty and give them a freedom from want.”

The spread of information as a result of the Gutenberg press constituted a catalyst for change; but broadband and Web 2.0 – which allows for interactive information sharing and collaboration on the web – is a far more powerful tool for advancing human development. Furthermore, the popularity of Facebook and Twitter in the developing world show that internet access is widespread, and the fact that Information and Computer Technology (ICT) played a pivotal role in toppling North African dictators in the ‘Arab Spring’ – by, for instance, exposing torture by the authorities and bringing about prosecutions of the police responsible – indicates that it could have a major part to play in advancing the rule of law. Rule of law strategies ought, therefore, to take into account that modern technology can have a considerable impact on the distribution of power in a society.

Indeed, today’s advances in technology and communication have enormous potential to improve access to justice, advance legal system capacity, and facilitate legal system transparency and accountability. Even in the generally fuddy-duddy legal world, those such as the current Lord Chief Justice and President of the Courts of England and Wales, Sir Igor Judge, can appreciate that ICT will (in his words) ‘have as dramatic an impact on society as a whole as the invention of the printing press itself, and its impact will be much more rapid’.

He also affirmed as follows: ‘It is my personal belief that in any society which embraces the rule of law it is an essential requisite of the criminal justice system that it should be administered in public and subject to public scrutiny.’ Many of his fellow judges concur and expand on just why it is an essential requisite: “Public awareness of what happens in our courts serves to bolster public confidence in the administration of justice,” says Lord Neuberger of Abbotsbury, Master of the Rolls for England & Wales. “Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the value of the rule of law,” said Lord Steyn in 2004. “The general acceptance of judicial decisions, by citizens and by governments, which is essential for the peace, welfare and good government of the community, rests, not upon coercion, but upon public confidence,” confirmed Australian Chief Justice Anthony Gleeson.

“The ultimate measure of success …..” writes Lelia Mooney, “is very personal and it has a human face. It is based on whether the average citizen, the folk on the ground, has the certainty he or she can trust justice sector institutions while at the same time feels confident his or her human rights, civil liberties, and political freedoms are respected and enforced in an inclusive, fair, secure, stable, and peaceful environment, promoted and defended by the government and that there are effective, responsive and accountable systems of governance.”

So, it is clear, if we are to successfully advance the rule of law, we must also earn public confidence in the administration of justice. With the advent of optical fibre cabling, mobile phone technology and broadband; computer and internet literacy, e-commerce and e-government have come to thrive in many countries, leading to demands that the shroud of mystique that traditionally envelopes legal systems also be lifted. Indeed, ICT has a vital role to play in making inadequate legal systems far more accessible, timely, transparent, accountable and effective. Access to justice can, for example, be improved through in-court kiosks and websites that improve access to court information, legislation, court decisions and research, which can do much to enhance the transparency of the system and instil user confidence. But ICT can go even further and help bring legal systems to account as never before.

Based on the perceptions of those over whom they hold sway, in 2007, Transparency International’s ‘Global Corruption Report’ named the legal systems of Paraguay, Peru, Cameroon, Macedonia, Bolivia, Mexico, Croatia, India, Bulgaria, Nigeria and Gabon as the ten most corrupt. That same report recommended that to combat corruption in judicial systems, four key problem areas need to be addressed: judicial appointments; terms and conditions; accountability and discipline; and transparency. The report went on to urge that the appointment processes, promotion, salary awards, training, complaints, codes of conduct, wealth audits, conflicts of interest and dismissal of judges be made publicly transparent.

The report also advocated the publication of annual reports on: judicial activities and spending; reliable public access to information pertaining to laws and due process rights; proposed changes in legislation; and such matters as court procedures and judgements. In addition to this considerably enhanced degree of transparency, civil society engagement, research, monitoring and reporting were also recommended. Needless to say, much of what can be done to bring judiciaries to account, can also be done in respect of the police and prosecution service too. Exposure of this type, when done online, helps improve the likelihood of justice being done; but, equally significantly, social networking itself has the potential to strengthen the pro-justice elements in civil society.

It is essential to understand that establishing the rule of law requires deep societal changes that change the distribution of power and that, because it impacts on what may be a finely balanced mollification of powerful individuals and factions in society, it can only come into being if civil society is also instrumental in implementing the changes.

Thus, key stakeholders, such as NGOs and religious, press, business, legal and labour organisations, must be seen to embrace the outcomes sought. For this reason, the process of designing a new constitution should be seen as an opportunity to negotiate divisive issues and bring factions together to determine a future vision for the state. An inclusive and participatory national dialogue of this type adds legitimacy and local ownership and is more likely to result in the rule of law. The role of the media in this process, through facilitating dialogue, changing expectations and norms, and making public the abuses of those in power, can go a long way to help reinforce the rule of law.

Lelia Mooney, affirms that “any outside intervention, particularly one aiming at fostering the rule of law in any particular setting, cannot avoid exploring what the political arrangements of a particular society are and how different political, civil society and human rights stakeholders can have and should have a stake in this discussion.” “Designing rule of law reform and programming,” she writes, “without taking into consideration the different political arrangements of any particular society …. may not generate the expected results and would probably lead to failure.”

Based on Freedom House’s ‘Freedom in the World’ survey – which includes the rule of law as measured by the degree of independence of the judiciary, of civilian control of the security forces, of protection from unjustified imprisonment and torture or other abuse (including war and insurgencies) and of equitable treatment of all – rule-of-law advancement lags behind other ‘freedom’ factors. In the view of Jennifer Windsor, Executive Director of Freedom House, this is because “the most important political actors within the country have not adequately backed reform.” “In the end,” she says, “a rule of law system is a reflection of the underlying socio-political contract that exists within a society.”

Thus, in building the rule of law in a nation, the law’s interface with society is vital, and one ignores it, not only at the peril of the rule-of-law programme in question; but, more importantly, at the peril of the nation’s citizens’ too. There is, therefore, a moral imperative, if nothing else, to get things right.

The Author

Frank Richardson

Frank Richardson, the author of this article, trained as a lawyer in London after university, and later went on to set up quality schools in Indonesia. However, weak rule of law in the country resulted in him being gaoled and deported on false charges, before he was entirely dispossessed and torn from his children.

In his absence, his schools were milked to destruction and closed. Realising the deleterious effects, that he was experiencing directly, were also being visited on the country on a macro-level, he set up OpenTrial aimed at harnessing modern technology to advance legal system transparency in the cause of justice.

To learn more about OpenTrial, please visit:

Article picture: Pixabay.


Law & Philosophy