A political settlement is shorthand for the (in)formal agreement between elite groups that encapsulates the key norms, behaviours and ‘rules’ on the basis of which a country is governed at a particular point in time.‍[73] In particular, it contains a set of (in)formal representation, control and distribution rules between national political elites that guide governance and resource allocation. In the process of getting to or revising a political settlement, elite groups are understood to negotiate the extent to which they can pursue their interests on the basis of their relative power and skill within the boundaries of what their constituencies tolerate. Interests can lie at any point on the ‘fully collective’ to ‘fully individual’ spectrum and are likely to vary across issue areas. The (in)formal agreement that results from these elite negotiations, it is argued, influences the type of institutions that can exist and the nature of their performance.‍[74] For example, an informal parameter of Iraq’s political settlement is that, whatever their differences, its main Shi’a parties unite when this is needed to retain their dominance over the central Iraqi state.‍[75] Among other things, this means that presumably ‘independent’ institutions, such as the Independent High Electoral Committee or the Commission for Accountability and Justice (in charge of de-Ba’athification), are likely to be independent only to the degree that their work is aligned with the dominating political logic. At present, there are two key problems associated with the application of the concept of political settlement in studies of conflict and fragility:

It is for these reasons that this section uses a simpler – and arguably more neutral – input-throughout-output model of how power influences political decision making. It applies this model to analyse key dynamics and characteristics of processes of political contestation in fragile societies. Such examination generates vital insights into the possibilities of rule of law development in fragile political orders.

An input-output model for analysing political contestation

A simple yet elegant way of analysing processes of contestation between different interests and ideas that take place in every polity is to examine how power influences political decision-making at its input, throughput and output stages. Political decisions are those that allocate or apply public authority or public resources. Power is their currency.‍[79] In fragile societies, power tends to be distributed very unevenly and to manifest itself fragmentally. Consider, for example, the references throughout the academic literature that describe political order in fragile societies as ‘neo-patrimonial’, ‘limited-access’ or ‘praetorian’.‍[80] The first label refers to the personalised organisation of politics on the basis of patron-client relations, with public authority and public resources largely being seen as the private property of ruling elites as long as these remain legitimate, credible and provide patronage to their clients.‍[81] The second label refers in part to the restrictions that elites intentionally enact to limit access to organisational forms and positions of authority. This keeps competition down and elite permeability low. Both purposely keep power and resources concentrated in the hands of dominant elites.‍[82] The third label refers to the politicisation of social forces that results from the clash between their respective interests in the absence of credible, authoritative and capable mediating institutions.‍[83] This is in part because the very legitimacy to mediate is disputed.

The core elements of a power-based input-throughput-output model of political decision-making are as follows:

While it is theoretically possible for political contestation in fragile societies to be characterised by a (proto-) version of the rule of law – consider variations on Plato’s philosopher-king or even Hobbes’ absolute but moderate sovereign – it is highly improbable. This is because elites in fragile societies are typically much smaller, more powerful, less inclusive and less accountable than in more developed societies. This tends to reduce the level of political competition and increases the concentration of resources or benefits.‍[84]

As a result, the orientation of elite interests becomes an important issue. On the basis of what mix of self-, group- and/or developmentally-articulated interests do elites govern fragile societies?‍[85] A priori, a healthy dose of skepticism seems appropriate. The general history of political practice provides ample evidence for the dictum that ‘power corrupts, and absolute power corrupts absolutely’.‍[86] In short, narrow self-interests feature prominently in elite considerations if left unchecked. In addition, fragile societies are rich in incentives for pursuing self-interest and poor in effective institutional constraints to prevent this.‍[87]

Input: How power is acquired and maintained

In political settlement terms, the question can be framed as to how elites maximise their influence, position and authority in relation to other elites prior to negotiating (in)formal agreements that confirm and perpetuate their status and interests. The existing literature suggests that at least three resources are relevant to the acquisition and maintenance of power: coercive capacity; a reliable support base that provides influence/access, manpower and legitimacy; and adequate financial resources.‍[88]

Coercive capacity

Coercive capacity helps to acquire and maintain power either by virtue of eliminating political rivals entirely (assassination, torture and gaoling are common methods in many fragile societies),‍[89] or by resolving political disputes through (threat of) force when more peaceful methods are absent or perceived as less effective.

In fragile societies, such capacity can be obtained in a number of ways. The most straightforward manner is to co-opt parts of the national security apparatus so that their loyalties shift away from government or state to particular elite members/groups. Such co-optation can be direct or indirect. Direct co-optation is when security forces will not obey their formal line of command in certain situations and instead receive and execute orders from an informal line of command. The armed forces in Yemen under President Saleh and the DRC are examples. Today, the Burundian armed forces present an acute case of gradual disintegration of professional integrity and command loyalty. Indirect co-optation is more passive and happens when elements of the security forces will not respond to orders that go against the interests of their patrons. Lebanon’s factionalised security organisations, which also serve as vehicles for patronage for competing elites, might serve as illustration.‍[90]

Alternatively, elite members can use militias to threaten or exercise violence to strengthen their negotiation position, acquire power directly, enforce order, or maintain the status quo. This effectively creates another security apparatus parallel to the state, usually with the explicit purpose of exerting pressure through political violence. Such capacity does not have to be maintained on a permanent basis, a credible threat of mobilisation may suffice. Examples include the Imbonerakure in Burundi (the youth wing of the ruling party that was not disbanded after the Burundian civil war), which is presently used to intimidate and eliminate opposition figures, independent media and disloyal regime members. It has the implicit and sometimes explicit support of part of the Burundian police force and the national intelligence service.‍[91] In Iraq, the Hashd al-Shaabi (Popular Mobilization Forces) acts as a coercive capacity in parallel with the regular Iraqi security forces. It consists of a broad array of mostly Shi’a militias, a number of which are associated with leading elite members and some with foreign patrons like Iran. Their sectarian bias is generally seen as aggravating the dynamics of the conflict with the Islamic State.

Finally, elite members can develop and maintain ties with organised crime organisations or small groups and individuals in state security forces to provide them with a more modest coercive capacity for targeted intimidation and tailored violence. This can take the form of loose or permanent networks of individuals or groups across legal and illegal organisations to produce hitmen and death squads operating under the guidance of middlemen connected to elite members. For example, elements of the Guatemalan military intelligence and presidential guard worked with small criminals and informants to clandestinely eliminate political opponents.‍[92] The reach of such coercive capacity is, of course, more limited than that provided by control over parts of the state security apparatus or by maintaining militias. Thus, it mostly serves to neutralise or eliminate particular individuals rather than to exercise territorial control or support broader increases in power.

Which type of coercive capacity can be constructed to engage in processes of political contestation will depend on the particularities of the fragile society involved, but in general these capacities have two aspects in common. They will be based on a set of loyalties – typically ethnicity, party affiliation or religious beliefs – that are different from and more important than either professional loyalty or national identity. Secondly, those engaged in the associated coercive activity will tend to operate with near impunity and not be kept in check effectively by regular security forces. This is due to their close association with key elite members who will also tend to hold significant economic and political power.

A reliable support group

Building a reliable support group also helps elites acquire and maintain power.‍[93] Elites do not exist in isolation. They require a support group, or followers, which they can mobilise as a source of influence and that confers legitimacy on both their person and position. The corollary is that elites also face limitations and obligations towards their support group. While the political dynamics between elites and their support groups appear to be in need of further study, a useful distinction has been made between essential and interchangeable support group members.‍[94] Essential members are those whose support is a must-have to acquire or stay in power. This is usually because they control an essential resource (e.g. a set of votes, a particular capability, an organisation or a source of legitimacy). They can be thought of as second-tier elites or even peers in relation to top-level political contenders.‍[95] Consider, for example, the essential role of Yemen’s military chiefs and certain tribal leaders in enabling President Saleh’s rule before 2011.‍[96] In contrast, interchangeable support group members can be regarded as the ‘muscle’ or ‘volume’ of the support base. Among them, there will be bright, up-and-coming individuals who can replace essential members when needed and possible. For an aspiring politician-cum-elite-member, his/her constituency ideally takes the form of a pyramid with a minimal number of essential members at its top and a maximum number of interchangeable members at its bottom.

A particularity of political order in fragile societies is that constituency members hold very few (or none at all) enforceable civil rights that are independent of their constituency membership. This puts them in a situation of dependency that is open to abuse and manipulation. It also reduces their scope for intra-group coordination as it increases the cost of collective action.‍[97] In turn, this means that political decisions and policies can prevail that would lead to rapid loss of political power in a democracy where, for example, the right to vote can be exercised freely and independently.‍[98] The de facto underdevelopment of the bundle of entitlements associated with citizenship in fragile societies, combined with limited access to organisations and elites, ensures that interchangeable constituency members typically have poor mobility and influencing options.

Unsurprisingly, this tends to limit intra-group contestation and political challenge. It also results in longer tenure of smaller elite groups. If these elites are relatively development-oriented, this can generate positive results, while the reverse holds when they behave more self-interestedly.‍[99] In contrast, the power base of essential members of the support group increases their mobility and influencing options (they can afford it). Should these essentials come to suspect that the rewards for their support are no longer secure or that a better offer is available, they can shift sides or renegotiate benefits.

Control over resources

Finally, control over sufficient resources helps elites acquire and maintain power. This holds for all political orders. Yet, what matters is how such resources can be obtained and used, and what purpose they can serve. In a mature democracy, incumbent governments will tend to propose public policies to distribute public resources in ways that resonate with large parts of the electorate. In such a system, the number of essential constituency members is typically too large to enable individual payments. It is therefore in the interests of political leaders to allocate resources to public goods.‍[100] Unsurprisingly, in the autocracies and patronage democracies that characterise many fragile societies, the situation is different.

In autocracies, control over resources for maintaining political power is typically assured through a ‘stationary bandit’ setup.‍[101] This means that a ruler taxes the population and economic activity with the purpose of optimising his profits in the long run, so that he or she can adequately and reliably reward his essential constituency members.‍[102] The ‘ruler’ can be an individual or a coalition. The situation has several important economic and security effects.‍[103] The first is that the maximum tax rate falls short of complete appropriation because this would remove any incentive to produce or invest. The second is that it is rational to provide public goods to the extent that their presence increases production, which the regime can tax. The third is that other actors with coercive capacity will generally be eliminated because maximisation of taxation requires a monopoly on the use of force.‍[104] This creates a basic measure of safety in the sense of the absence of open conflict and at least some enforcement of order. An interesting consequence is that durable autocracies, in which leaders (the stationary bandits) enjoy longer tenures, are associated with higher standards of living and less corruption.‍[105] Stability is not only a requirement, but is often also a characteristic of autocracies. As autocrats generally ensure that they have control over the rules for political competition, the economy and the security apparatus, instability tends to occur as a result of (protracted) external shocks or leadership changes.‍[106] The key point for this paper is, however, that the ruler has incentives to create at least a measure of rule by law. This means that there is some legal predictability and transparency, with the main aim of promoting wealth generation that can in part be appropriated.

In patronage democracies, control over resources for acquiring and maintaining political power is typically obtained through relationships and mechanisms of mutual obligation/reciprocity that connect elites with their popular base.‍[107] Political parties can play a key role in such democracies by effectively representing affiliative structures for patronage distribution and vote collection. Typically, patronage systems feature resource flows that move up (e.g. cuts of, or payments for, favours, goods and services that were obtained thanks to prior intercession by those in positions of authority – such as licences, privileges or jobs) and down (e.g. material goods, jobs, educational opportunities or services). In addition, due to their position of political power or public authority, political leaders at the top of the apex might benefit from rents extracted from natural resources, aid or trade that come with far fewer requirements of reciprocity attached. Such rents can be used for self-enrichment, oiling the wheels of the patronage system, or public policies.

In patronage democracies with vibrant political plurality, clientelism is competitive. Hence, power and resources are more fragmented than in autocracies. It is more difficult for elites to obtain and manage resources in ways that sustain power. As a result, it may not be possible to centralise power to the degree necessary for enabling either long-term rule or pursuing long-term policy objectives. Such political orders can, however, be capable of creating political equilibria in which an appreciable volume of quasi-public goods and services are provided and distributed on the basis of the logic of clientelism. The USA from 1850–1900 is an interesting example, or perhaps present-day Ghana.‍[108]

In patronage democracies that are limited to one or two political parties, it is more straightforward to centralise power. A single party, or a strong executive, is likely to come to dominate a centralised system of rent-seeking and -allocation.‍[109] In such cases, party membership can become a substitute for citizenship in terms of enabling access to services like education, housing and public transport.‍[110]

In short, opportunities for rule of law development in patronage democracies depend on the dynamism of political competition. If several factions compete for power in a more or less pluralistic system, elite rotation is likely to be higher and elite permeability greater. If elites also have ownership of significant economic assets, an incentive arises to develop effective property rights, for example. Elite rotation and permeability mean, after all, that political power can be lost, while effective property rights help ensure that economic power is not lost at the same time.‍[111] In short, property rights for elites seem a realistic prospect in relatively competitive patronage democracies. This is but an example of what has been called ‘rule of law for elites’, i.e. laws with a limited constituency, or laws that allocate different rights depending on a person’s legal class.‍[112] However, while such a construct may initially serve elites, it is not hard to imagine other social groups gradually pressing for expansion once elite-oriented property rights exist. The same process of ‘legalising’ elite privileges into elite rights that can subsequently be broadened or mainstreamed is also imaginable in respect of other privileges, sources of revenue or rent that elites enjoy.

In contrast, patronage democracies with few competing factions or a strong party-dominated executive are closer to autocracies in the sense that incentives for rule of law development are more likely to arise out of the desire to maximise resource appropriation in the long term. This points to the business climate and the regulatory framework for economic competition as potential entry points for rule of law development.

Throughput: How political disputes are resolved

Fragile societies are in part considered fragile because of the incidence and/or likelihood of significant levels of organised violence occurring within and across their borders. This is because the threat or use of violence is necessary, attractive and feasible for many – elites in particular – in pursuing their interests in the political order of fragile societies. In other words, it is a highly rational political strategy.‍[113] It is necessary because elites want to ensure protection of their interests in the absence of reliable, neutral enforcement mechanisms that can do so. Having a capacity for violence also serves as an ‘insurance policy’ should their peers renege on the political settlement that is in place. It is attractive because elites can threaten or use violence instrumentally to increase their control over government, resources or other assets/privileges that generate rents or status. In a fashion, it is also attractive for non-elites because mobilisation of (the threat of) violence represents a means to obtaining greater status or resources in the absence of alternative routes that are blocked through the logic of ‘limited access’. It is feasible because mobilising violence is cheap, while its use is politically and legally relatively unconstrained. In short, threatening or using violence tends to be a profitable elite strategy from a cost/benefit perspective.‍[114]

This does not, however, necessarily lead to a Hobbesian state of nature in which rule by gun is the standard, militias proliferate, and violence is a constant feature of everyday life. While such places exist, as in parts of the eastern DRC, Somalia, Yemen and Afghanistan/Pakistan, they are not the norm because such a situation is intolerable.‍[115] Instead, it is more common for elites to set themselves up as ‘stationary bandits’ and centralise the use of violence as much as possible. This can be done, for example, by keeping capabilities for violence limited to a small group of elite players that restrict political plurality by running a patronage democracy in oligarchic fashion (e.g. Mali or Lebanon), or by keeping capabilities for violence centralised under an autocratic regime (e.g. Syria before 2011).‍[116] These options were discussed in greater detail in previous paragraphs.

An implication from a rule of law perspective is that the creation of a proto-form of rule of law for elites is likely to be an important first step. This effectively means that different rules will apply to different social groups for a significant amount of time. In its most simplistic form, there could be rules that guide elite behaviour that are more flexible and not necessarily enforceable all the time, laws that guide the actions of the many that are more rigid and enforceable most of the time, and connective tissue between the few and the many, which consists of social prerogatives and partial institutions that influence how cases will be decided, or laws applied, which have litigants of different social classes.‍[117]

Reality is likely to be more complex, with different degrees of legal certainty and enforceability across both social groups (the wealthier, more powerful and more influential will enjoy greater rights and security) and types of cases (those that touch on key power or economic interests will tend to progress slower or be decided in favour of those that are socially more prestigious). To avoid misunderstanding, this is not a desirable state of affairs, but reflective of the reality of many fragile societies.‍[118]

Such a situation offers two pathways for rule of law development. The first pathway takes the form of efforts to stimulate deeper institutionalisation and progressive expansion of ‘rules-for-elites’ to include a greater part of the population over time. Before such a dynamic can take hold, the underlying political settlement has to be fairly stable and feature some resilience against internal and external shocks. In turn, this points to the importance of the predictability, acceptance and enforcement of a settlement – and in particular to the set of institutions necessary to imbue it with these characteristics – before a rule of law for elites can replace violence as a key method for resolving differences.‍[119]

Existing research suggests that factors contributing to the durability of a political settlement include the extent to which it is inclusive of the major contending elites; the degree of balance it achieves between available resources and elite interests; the level of executive ability available to maintain this balance in the face of fragmentation, competition and shocks; and the degree of legitimacy the settlement can establish over time (e.g. in the form of ‘developmental legitimacy’ that results from achieving economic progress).‍[120] The recurrent nature of violence over past decades has made it abundantly clear that achieving a durable political settlement is no small task and that the role of external actors in this process is typically very limited.‍[121]

The second pathway for rule of law development takes the form of increasing the accessibility, transparency and fairness of the laws and rules that are valid for the ‘many’. In all likelihood, appreciable progress can be made in areas that are relatively unrelated to elite interests, such as family matters. Further rule of law development might then use such entry points to expand into adjacent areas of law and create a type of snowball effect. From a sociopolitical perspective, this could lead to the purposeful creation of a growing imbalance between the reliability of rules in certain areas as opposed to the unreliability of rules in other areas that can, in turn, promote further reform as it mobilises new social forces.

Output: How governance is exercised

Hybrid governance refers to processes in which the application of public authority and the administration of governance is negotiated and constituted between interlocking sets of informal and formal institutions that include the state. More concretely put, the national elites that are nominally in charge of fragile states often have to negotiate the reach and currency of their power with other centres of authority and legitimacy insofar as their local application in fragile societies is concerned.‍[122] Consider, for example, the projection of state authority into the north of Mali via proxies and informal relations (a territorial example),‍[123] or clerical ‘consultation’ on government policy in Saudi Arabia (a more ‘spiritual’ example).‍[124] While negotiations about the implementation of political decisions are also normal practice in mature democracies, especially in those of the federal kind, political contestation about the business of governance in fragile societies features several significant differences.

To start with, in fragile societies the state faces rival sets of loyalties and (informal) rules that can be as strong or stronger than its own.‍[125] In this sense, the state is just one competitor among several. In addition, and in reflection of such diverse loyalties and rules, fragile societies also typically feature a patchwork of informal and formal institutions that are not necessarily bound to the state and which enjoy substantial legitimacy as a consequence of the loyalties and rules that sustain them, as well as appreciable autonomy and capability.‍[126] In narrower rule of law terms, this is visible in the legal pluralism typical of many fragile societies. It points to the need to consider how elements of their existing colonial, state and customary legal systems can be reconciled or innovated towards locally-grounded legal systems that can meet the ‘justice demands’ of the 21st century. In this process, the state justice system should not ‘automatically’ enjoy pre-eminence because several sets of rules and loyalties exist in parallel. Bestowing superiority upon it might contribute to conflict and is likely to serve particular groups at the expense of others.

Moreover, whether the consequences of such parallel or ‘institutional multiplicity’ are negative or positive from the perspective of effective administration largely depends on whether these institutions compete, collaborate, co-exist with or substitute for each other, including with or for the state.‍[127] The history of the Western world shows that the dominance of a single set of loyalties and formalised rules has tended to emerge out of protracted periods of conflict over political power.‍[128] A number of researchers of contemporary processes of state formation have argued, however, that the co-existence of parallel and intertwined layers of informal/formal and state/non-state institutions is likely to be a permanent feature of the structure of political order in the 21^st century, especially in fragile societies.‍[129]

Finally, an important aspect of hybrid governance in fragile societies is the significance of informal economies that can be captured or ‘regulated’ by those with the wherewithal to impose themselves (be it criminal gangs or business-connected politicians), who tend to appropriate their surpluses. From this perspective, informal economies are a source of revenue that facilitates the continued existence of alternative power bases and the emergence of new ones. They have a symbiotic relation with clientelist politics. Expanding an informal economy can therefore be a risky development, despite the merits it might also have.‍[130]

In short, having political power at the national level represents only part of the ability to rule in fragile societies, since public authority and public administration often have to be effectuated via interwoven power centres and their intermediaries. These layers are infused by the logic of patronage and the threat of violence. This has several consequences for rule of law development.

The most obvious consequence is that even if elites could somehow be induced to improve the quality of political decisions, public policies and laws/rules from a collective goods-type perspective, they would still face difficulties in having their decisions, policies and laws administered due to the fragmented nature of governance and administration.‍[131] The less obvious corollary of this situation is that the seemingly neutral area of public administration is likely to be as contentious as the political arena itself.‍[132] This makes it of vital importance that international initiatives promoting local governance and the rule of law treat the ‘aftermath’ of political decision-making (i.e. actual implementation) as part of the main act.‍[133] It is here that the actual business of governing comes to life.

Another consequence is that hybrid governance facilitates transnational connections between foreign sponsors and domestic centres of authority that operate in parallel to the state because such institutional multiplicity creates a range of meaningful entry points for external agendas and interests to exercise influence. Consider, for example, Saudi sponsorship of Wahabi centres of religious belief and advocacy throughout the Sahel, or Rwandan funding for militias in the eastern DRC. Such transnational connections reflect and perpetuate the limited reach of the state in terms of both its legitimacy and its administrative penetration, something that rule of law promotion efforts should more consciously take into account.‍[134]