Having explored the rule of law concept in general, it is useful to now briefly examine the perceived relationship between rule of law engagement in fragile societies and the promotion of other significant concepts such as democracy, economic growth and statebuilding, since they are often articulated as being linked in political discourse and development policies. Because such linkages influence the thrust and expectations of development policies and programs, they ought to be scrutinized beyond the sterile platitudes one encounters at times.

Exits from fragility: rule before rule of law

To do this meaningfully, one must start by reviewing existing knowledge about what pathways out of fragility have looked and can look like. Although available evidence on the dynamics and characteristics of exits from fragility is partial, provisional and in areas disputed, it is sufficient to paint a broad canvas of how developmental change might happen in the political orders of fragile societies.‍[32] It should be added that while such a canvas is helpful in framing the thinking about fragility and understanding what it may mean for rule of law development, it has little prescriptive value because the weight, composition and interaction of core variables is context-specific. In other words, existing knowledge represents averages with significant deviations from the mean.

Major works suggest that the following elements have been present in a number of successful (emerging) exits from fragility in places such as Ghana, Mozambique, Cambodia, Rwanda, Ethiopia and Vietnam.‍[33] Taking the opposite view is also worthwhile as evidence exists aplenty to suggest that the absence of these elements plays a major role in perpetuating the conflicts that deepen fragility over time.‍[34] In a highly stylised version, they can be presented as follows:

To start with, a dominant group of elite players emerged that gradually managed to establish (control over) a reasonably effective state security apparatus (without necessarily establishing a monopoly on the use of violence), key resources (including rents and aid), the rules for political competition, and a nationally valid narrative on identity and representation that was able to withstand counter-mobilisations. Political parties or political coalitions regularly served as vehicles to acquire power and major shocks tended to play an enabling role by creating opportunities for power consolidation. The resulting control often took the form of hybrid governance and institutional arrangements that merge both personal/bureaucratic and informal/formal aspects of power and authority. The emergence or non-emergence of a dominant elite group or coalition can be viewed as ‘juncture 1’ out of fragility that either branches off into the path of ‘rule by gun’ – reflecting a relapse into fragmentation of power – or into the path of ‘rule’ – reflecting solidifying power consolidation.‍[35] It is useful to note that the persistence of fragility suggests that many countries have not experienced the emergence of a consolidated and dominant group of elite players, but rather face the central problem of fragmented and inconclusive competition between different power centres – sometimes under the guise of patronage-based democracy (Yemen 1990–2016, Mali 1991–today, Lebanon 1990–today), warlordism (Afghanistan in the 1990s, Democratic Republic of Congo (DRC) to today, Somalia 1991–today) or oligopolistic autocracy (Myanmar until 2015, Nepal until 2008; Burundi since 2010).

Where a dominant group of elite players emerged that consolidated both power and rule, it tended to be relatively inclusive of the major contending elites. It was also able to use instruments of rule, administration, security forces and resources to co-opt or coerce individuals and groups within the broader elite to maintain power and enforce discipline in respect of key political decisions, policy directions and rent allocations. The nature and level of executive strength was an important factor in making coherent use of such instruments.‍[36]

Furthermore, dominant elite players used such executive strength to prioritise social and economic progress based on a relatively clear vision (in areas like safety, education, water, infrastructure and investment) through a mix of statist and market economic policies while seeking to retain control of both the political and security sphere.‍[37] In short, they had a reasonably strong development orientation that was premised on staying in power. In many countries, elite behaviour regressed from an initial opening for more development-focused policies to pursue narrower and more material self- and group-interests. The extent to which elites display a development-orientation can be viewed as ‘juncture 2’ of pathways out of fragility. Its different branches lead to continuation of ‘rule’, gradual regression to ‘rule by gun’ – reflecting predation of different kinds – or ‘rule by law’ – reflecting greater predictability with elites continuing to enjoy privileged political and socio-legal status.

Inevitably, socio-economic progress elicited social contestation. As the quality of life improved, new social forces emerged and the legitimising narrative of the ruling elite lost credibility because the demands put upon it changed.‍[38] Such contestation was met by effective repression, ineffective repression, or sociopolitical innovation in which adjustments took place to accommodate new players and power relations.‍[39] The degree of adaptability of the political order can be viewed as ‘juncture 3’, whose different paths lead to continuation of ‘rule by law’, regression to ‘rule by gun’ – reflecting continued elite dominance via more repressive means – or a proto- ‘rule of law’ – reflecting political opening.

This is not to say that the countries whose development followed this trajectory will turn into mature democracies over a few more decades. Rather, it means that they have achieved the impressive accomplishment of avoiding a relapse into violent conflict and making initial development gains. As sustained exits from fragility are rare,‍[40] it is not clear that these exits are replicable on the basis of a generalised narrative. However, their broad trajectory offers a way of thinking about power and the rule of law in the context of fragility. At least two observations can be made on the basis of this brief discussion, which are relevant to thinking about a theory of change for rule of law development in fragile societies:

First, it points to the need for prioritising the creation of the capability and ability to rule as a precondition for being able to develop the law along the lines of the rule of law. This reflects the enduring validity of the classic insight of Thomas Hobbes that some order must exist before a preferred order can be discussed. Or, as Samuel Huntington put it, ‘it is the degree of government that matters’.‍[41] The consequence is that rule of law promotion should focus on the consolidation of power rather than on keeping it in check by fragmenting it. However, this needs to be done in ways that consolidate power as inclusively as possible, and by ensuring that those in charge of whatever order emerges remain incentivised to continue developing and expanding it instead of freezing it to their own advantage.‍[42] Provocatively put, this may mean that a potentially oligopolistic or autocratic state may be required before lasting progress towards the rule of law can be made – without the certitude, or a mechanism in place to ensure, that this step will actually be taken once power is more centralised.

Second, the preceding discussion also suggests that working towards the rule of law is likely to require ‘detours’ that are not in line with current international rule of law prescriptions and preferences. For example, it seems quite likely that output legitimacy (equitability of results) is more important and sustainable than input legitimacy (equitability of opportunity) at certain stages of development. Concretely, this may well mean that elections are either better not held or that it is more clearly recognized they will serve a façade function.

A licentious relationship with democratisation, growth and state building

In speech, declaration and policies, rule of law development in fragile societies is regularly connected with democracy promotion, stimulating economic growth and statebuilding. This raises the question of precisely how the rule of law influences, or is influenced by, such companion meta-concepts. To start with, it is remarkable that statements linking these meta-concepts tend to be either teleological or amorphous in nature. The former suggests a clear line of causality whereas the latter implies an ill-defined relation. Examples of both can be found in the 2012 UNGA declaration on the rule of law – arguably still one of the most recent and most high-profile documents that can be interpreted as expressing some consensus on the rule of law.‍[43] The UNGA posited clear, two-way causality by stating that: ‘We reaffirm that human rights, the rule of law and democracy are interlinked and mutually reinforcing…’ [paragraph 5]. Extrapolating from this statement, general thinking about the linkage between the rule of law and democracy centres on the assumption that, without government being bound by law, the freedom and plurality required for the growth of democratic practice have little chance of emerging.‍[44]

It does not require a great deal of research to cast significant doubts on the validity of this general assumption. A brief look at current affairs suffices. On one side of the rule of law spectrum there are quite a few democracies that face significant rule of law challenges. One can consider, for example, the massive incarceration rates in the United States, where the principle of ‘three strikes and you’re out’ violates both the principle of proportionality and the requirement that each case is judged on its merits.‍[45] The continued discrimination against minorities, such as the Roma in Europe, provides another example. The inaccessibility of justice systems due to e.g. case overload and a lack of translation capacity required for timely and due process – as is the case in Belgium – offers a third.‍[46] In the middle of the spectrum there are many patronage-based democracies, such as the DRC, Mali or Afghanistan, that feature characteristics of democracy but rather fewer of the rule of law.‍[47] Paradoxically, at the far end of the rule of law spectrum there are autocracies such as Uganda that have seen relatively independent judiciaries carve out appreciable scope for autonomous action. In such circumstances, the judiciary will not mount direct attacks on the political or security foundations that keep the regime in power, but instead snipe at the margins – to sometimes consequential effects.‍[48] Even a simple scan suggests that the relationship between the rule of law and democracy is fairly unclear. If anything, available evidence suggests that proto-forms of democracy – or at least pluralist political elites and institutions – have tended to precede the rule of law rather than the reverse.‍[49]

Another direct causal link that is at times advanced in political discourse or development policies is between the rule of law and economic growth. The argument here tends to be that the investment, innovation and entrepreneurial energies needed for economic growth can only flourish in an adequately delineated and properly regulated environment in which private interests can pursue profit freely. Impartial enforcement of laws and regulations is said to be essential, as is keeping state intervention to a minimum.‍[50] Common sense and evidence suggest even more clearly than in the case of democratisation that this claim is problematic in its general form. For example, (semi-) autocracies like Ethiopia, Rwanda and Saudi Arabia have shown steady economic growth for decades while democracies like Greece, Japan and Spain have been moribund. In similar vein, foreign direct investment continues to pour into countries not exactly characterised by the rule of law.‍[51] Moreover, research exists that argues that the absence of the rule of law prevents poor countries from growing faster, while other research suggests that this is not the case, in part because investment in fragile societies with contested rule is influenced more by personal relations and expected profits.‍[52]

More specific to fragile societies is the assumed set of relations between the rule of law and statebuilding. Until recently, the common wisdom used to be that democratisation, liberalisation and rule of law promotion were essential elements of the statebuilding package that could help bring about exits from fragility. This was captured by the dictum ‘all good things go together’, suggesting that working on these three aspects in parallel is mutually reinforcing and beneficial. Such logic informed a fair number of international peacekeeping missions and aid programmes alike.‍[53] It is well exemplified in the 2012 UNGA declaration on the rule of law, which states that: ‘We emphasize the importance of the rule of law as one of the key elements of conflict prevention, peacekeeping, conflict resolution and peacebuilding, stress that justice, including transitional justice, is a fundamental building block of sustainable peace in countries in conflict and post-conflict situations…’ [paragraph 18].‍[54] Yet, research suggests with increasing clarity that there is not much evidence that liberalisation, democratisation, low levels of corruption or the rule of law are in fact developmental inputs.‍[55]

At least two major insights can be inferred from this short discussion of conceptual relationships between democracy, economic growth and statebuilding on the one hand, and the nature of rule of law development in fragile societies on the other.

To start with, rule of law promotion in the operational sense should not be justified by explicit or implicit generalised relations of plausibility or causality with democratisation, economic growth or statebuilding. While there may be some space for doing this at the declaratory level of international discourse, it is dangerous to do so in respect of interventions at the country or programmatic level because the dynamics and relationships between these meta-concepts are unclear and appear to be grounded more in ‘policy-based evidence’ than ‘evidence-based policy’.‍[56] What is required to justify, design and implement rule of law promotion interventions via diplomacy or aid in a responsible fashion is focused examination of local justice ethnographies in the context of a particular (sub)national political economy.

Moreover, if the rule of law is more a development output than a development input, strategies for rule of law promotion should focus on laying its political foundations before working on its justice core. This means addressing the question of how political order can be stabilised and then progressed, as well as engaging particular justice institutions from the perspective of how they can contribute to stimulating a progressive political order.

Day-to-day human security and justice as a practical alternative

The issues highlighted in previous sections suggest a rather different answer to the question of what international engagement – and rule of law promotion in particular – in fragile societies might achieve. It is less likely to realise ambitious objectives such as progressing democracy, enabling economic growth and building states in the image of the liberal peacebuilding paradigm, and more likely to be a practical, modest affair that needs to confront the problem of violence before everything else.

Breaking cycles of violence is the essence of creating a chance for moving out of fragility. Yet, for a variety of reasons such cycles are persistent and resistant to intervention.‍[57] The longer violence persists, the deeper legacies of trauma become, social trust reduced and authority fragmented. Ultimately, this results in degeneration of governance structures. Such regress can be clearly observed in its emergent stages in Syria and Libya or in its advanced stages in Yemen and the DRC.‍[58] Liberia and Afghanistan might serve as examples where structures are rebounding somewhat after prolonged periods of conflict. It is not correct, however, to conceive of degenerate governance structures as ‘voids’ or ‘ungoverned spaces’. Instead, they represent hybrid configurations of informality, authority and legitimacy that emerge out of the interaction between pre-existing institutions, violence and power, as well as customs and social needs. They are skewed in the sense that they amplify rather than correct power differences. This also makes them vulnerable to shocks and disruption.‍[59]

In such a context, the chief purpose of rule of law promotion is to recreate the norms, incentives and institutions for peaceful conflict resolution.‍[60] As the previous sections have suggested, this may require tacit acceptance of power consolidation in the hands of elites that were either involved in the violence or whose interests in progressing the rule of law beyond solidifying their rule are limited. Keeping control over the mechanisms of political competition and the tools of security might be the price for advancing the rule of law on other fronts. The problem here, as discussed, is that there is neither a guarantee nor automaticity of such elites engaging in, or even quietly permitting, further rule of law reform that respects their rule once they feel securely ensconced in power. Instead, they can revert to nepotism, kleptocracy or outright plunder.‍[61] Because the factors that influence the relevant possibilities are decidedly local in nature, this problem cannot be addressed in a general sense. The analysis does suggest, however, two important process pointers for rule of law promotion:

In substantive terms, rule of law promotion can help in breaking cycles of violence in several ways. To start with, there is a need to create and maintain a basic level of security in terms of the absence of violence.‍[64] This points to a need to engage in security sector development to stabilise situations of latent or actual violence. Security sector development initially serves to prevent security organisations, such as militias, state forces, gangs or guerilla groups, from spreading insecurity. Gradually, it can help to strengthen the governance and capabilities of such organisations to maintain order (rather than simply not disrupting it).

In parallel, efforts to promote the rule of law ought to strengthen institutions, processes and habits that offer alternatives to using security organisations for the resolution or mitigation of violent conflict. Usually such practices already exist informally.‍[65] but they tend to have been damaged by conflict or subject to pressures like regress of traditional authority and urbanisation. Nevertheless, as state justice systems are often in a worse state and completely distrusted, rule of law promotion typically has to work with what is available with the aim of gradual improvement. As Amartya Sen has highlighted, the choice is between justice alternatives that are feasible in reality, not between reality and an ideal.‍[66] Given the intractability and magnitude of problematic issues in fragile societies, addressing recognisable and resolvable injustices seems a better focus for rule of law promotion than trying to bring a ‘just society’ about.‍[67]

Finally, a measure of trust must be restored between people and authority (formal or informal; state or customary; hybrid or otherwise) for alternative dispute resolution mechanisms to work. Trust is often a function of prior experience, legitimacy and effectiveness. Both its horizontal (i.e. between individuals/communities) and vertical (i.e. between individuals/communities and institutions of authority) dimensions require attention. It is here that the deconstruction of enemy images, reconciliation and truth-finding initiatives enter the scope of rule of law promotion, as do the more institutional-type confidence-building measures that the 2011 World Development Report points to, such as adequate vetting and appointment procedures. This is arguably the least tangible part of rule of law promotion and the hardest to get right because it requires solid grounding in local customs and norms.

The local nature and dynamics of processes of political contestation ultimately decide how and how far the rule of law can be promoted on such matters. It might be argued that this is the case for any area of development and such an argument would not be wrong. Yet, two issues make the linkages between the dynamics of political contestation and rule of law development stronger than those that connect political contestation with many other development issues.

The first issue is that in every society, customs, rules and laws delimit, express and enable political power, colour its legitimacy and indicate how it can be employed in the form of public authority. Laws and the like provide the procedural framework for substantive contestation over power, rights, duties and identity at the level of both individuals and organisations. The World Bank dubs this the ‘command’ role of the law. However, this framework itself, i.e. rules for making other rules, is also subject to contestation. The World Bank dubs this the ‘constitutive’ and ‘contestation’ roles of the law.‍[68] By its very nature, the rule of law requires that rules with direct effect are derived from legitimate and procedurally correct rules with indirect effect. This means that rule of law promotion can be regressed or advanced by political contestation at several levels at the same time instead of at just one level, as in many other areas.‍[69]

The second issue is that rule of law promotion involves the societal challenge of agreeing impartial criteria for what is ‘just’.‍[70] Because justice is a relative concept that goes to the core of our dignity and humanity as individuals or collectives, it is at the core of the political agenda of any country. Debates about corruption, resource distribution and development are at heart debates about justice. Alignment of views and practices on this matter will happen endogenously, gradually and via iterative rounds of debate.‍[71] The legal pluralism that one can find in many fragile societies, and indeed in some more developed ones, suggests that a number of different procedural and substantive standards for what is considered ‘just’ can co-exist. These will slowly have to be reconciled at least in part if a generally accepted understanding of rule of law promotion is to be created. For example, is equality before the law more important than elite buy-in of rule of law reform? Is the speed of justice more important than its thoroughness? Are individual rights more important than collective rights? Is it more humane to lock someone up for several years or to give him or her 100 lashes?‍[72] Local customs, practices, power structures and international standards guide such choices that lead to imperfect trade-offs in every society. In fragile societies, resource scarcity and limited administrative capacity make such choices even starker.

In short, understanding and influencing the dynamics of political contestation is paramount for contextualising, conceptualising and realising rule of law promotion. Political contestation, in turn, takes place within the boundaries of a given political settlement that manifests a deeper political order at a particular point in time.