A major problem that arises from promoting the rule of law in the political order of fragile societies is that the normative and practical demands of the concept are generally too exacting, perhaps biased, and certainly too aspirational. Depending on how these demands are pursued, effects might be produced that are not actually productive. For example, resistance, tension and loss of confidence will inevitably result from efforts that seek to realise aspects of the rule of law in fragile societies exactly as they prevail in other parts of the world. Resistance arises from the lack of respect that copy-paste efforts show for traditions, histories, norms and sociopolitical realities elsewhere. Tension is generated by the ideological clash between modern justice systems in developed countries and the patchwork of semi-legal systems in fragile societies. Loss of confidence occurs both domestically and internationally when the ambitious objectives and practical realities of rule of law promotion efforts continue to diverge after sustained implementation efforts.

Towards a practical shift in rule of law promotion

A practical shift in rule of law promotion would therefore seem desirable: from normative form to practical function. Its aim is to take better account of the state of development of fragile societies, and to work on the basis of a more gradual approach to change without losing a moral compass.‍[135] However, this compass cannot be calibrated to the more classic ‘end-state’ thinking of rule of law development. Instead, it should take much greater account of practical realities and local norms. For example, it will have to be accepted that the laws and legal institutions of many fragile societies will purposefully not be equally accessible, functional and useful for a long time. Rule of law promotion efforts need to engage with this reality by exploring political boundaries to scout for reform possibilities, or to prevent regress. Moreover, under the logic of the political order of fragile societies, the passage of new laws or institutional performance improvement initiatives will not necessarily represent effective ways of improving this situation. Instead, a much greater focus on culture and the norms that guide behaviour might be appropriate.

This means that both the substantive focus and procedural approach of many existing rule of law promotion efforts are likely to need rethinking so that it becomes less moral in its universal ambitions and more local in the practical difference it makes. Pivotal to achieving such a practical shift is focusing on processes of political contestation. The durability and orientation of the political settlement that demarcates the playing field for political contestation in fragile societies is particularly relevant to promoting the rule of law. Durability results in part from the institutionalisation of peaceful relations and workable rules between elites. Durability-related aspects amenable to rule of law interventions include strengthening executive authority, establishing ‘rule of law for elites’, and increasing intra-constituency voice to support greater elite accountability.

As at least the partial consent of elites is essential to achieve these three points, their interests need to be respected while, at the same time, possibilities for social progress are created. This generates an evident dilemma. Resolving it amounts to the art of political reform. Tried-and-tested methods include strategic use of time (e.g. windows of opportunity and appropriate time horizons) to instigate reforms, creating composite reform packages from which key political decision makers benefit more than they lose (this optimises the leverage that differences in intensity preferences can generate) and increasing the pressure on elites to take painful decisions because the alternative might be worse.‍[136]

An additional problem is that political settlements are generally not very amenable to external influence as processes of political contestation are highly endogenous in nature. Evidence to date suggests no other way of addressing this hard-to-stomach observation than a corresponding lowering of expectations of the influence of externally sponsored rule of law promotion efforts.

Building blocks for such a shift

Suggesting that a practical shift in rule of law promotion is desirable obliges one to make a number of propositions as to what this could look like. The table below seeks to capture potential elements succinctly with the aim of stimulating further debate. It provides a basis for thinking about a more general ‘theory of change’ on rule of law development in the political order of fragile societies in the 21^st century.‍[137] Developing such a theory would obviously require much more research and consultation. Yet, it is a vital exercise given the current poor track record of rule of law interventions. A modest contribution such as this paper could help.

Barriers that will need to be overcome

Rule of law development is in large part about political contestation. Not only does the rule of law arise from processes of political contestation, it also represents a way of engaging in such processes and can help resolve contested issues. This makes it a highly disputed, divisive, sensitive and, therefore, politicised area in every society. On the basis of this insight, the paper argued for a practical shift in rule of law promotion that is more pragmatic and function-oriented. However, a number of significant barriers will need to be overcome to change the way in which rule of law development in fragile societies is being thought of and practised today.

The first barrier is that a false impression of consensus prevails in the international discourse on what the rule of law amounts to and how it should be implemented. One way of viewing this problem is to argue that a highly political concept, which has important values and ideals to offer, has been smothered by layers of declaratory rhetoric and a quasi-halo of normative superiority based on form instead of function. Supporting evidence for such a frame is the incredibly conceptual and operational diversity among the statements of member states in response to the 2012 UNGA declaration on the rule of law, the contrast between their statements and their national realities, as well as the reduction of the rule of law to a sub-element of Sustainable Development Goal 16 (about peaceful and inclusive societies) in the recently adopted 2030 UN Agenda for Sustainable Development, which succeeded the Millennium Development Goals.‍[138]

Part of the difficulty in taking a more practical approach to rule of law promotion is therefore doing so publicly. It goes against the prevailing international discourse, which makes it a hard as well as an inconvenient sell. This also makes it easy for initiatives and programmes not to think through and engage with the fact that the rule of law emerges from processes of political contestation and that the particularities of these processes in fragile societies require a much more sociopolitical approach to rule of law development than what might be the case elsewhere. Concretely, this means that international actors are likely to spend too little time and effort finding out whether their understanding of the rule of law is similar to that of those they seek to engage with and what change in the political order of a particular context is feasible. Generating such understanding requires in-depth political-economy analysis, as well as a design that allows programmes to engage in a process of political contestation.‍[139] For example, rule of law programmes in fragile societies often work to increase the provision of legal aid. If this is done effectively, litigants will inevitably run into existing elite interests. Hence, for such programmes to be effective, they will need to be designed to protect paralegals and litigants when this moment arrives; dispose of mechanism(s) for collectivising and pressing claims where necessary (many claims are likely to centre on land belonging to the same elite members, for instance); and have built or secured social support networks (e.g. religious organisations) with powers of popular mobilisation and social pressure to engage in the associated political contestation.

An associated, more operational, barrier is the fact that international rhetoric about rule of law promotion tends to dominate over practical recognition of the limitations of fragile societies, which makes it difficult for programmes to operate effectively. Programmes are incentivised to err on the side of caution, sticking with the international rhetoric. If they don’t, they might jeopardise sign-off, funding or both. Reducing such negative incentives requires greater tolerance for ambiguity among senior decision makers and donors about the nature of rule of law progress in fragile societies. Where this is absent, programmes are likely to feature overly-ambitious, but ultimately not very realistic, objectives. The resulting structural underperformance makes learning difficult as the causes for failure are sought within contextual parameters rather than in the nature of the discourse and the wishful thinking that drives the process of setting programme objectives.‍[140] From this perspective, the often-invoked lack of ‘political will’ for change is a convenient way to ‘explain’ inconvenient realities and distract from structural problems in conceptualisation and design. Recurrent failure also creates long-term credibility problems for actors supporting rule of law promotion.

A concrete example is the persistence of hardware-oriented train, build and equip efforts as key rule of law promotion strategies. By themselves, such approaches are generally flawed because hardware-oriented capacity-building initiatives assume that the functions of many public institutions in fragile societies are similar to those in more developed countries, i.e. to safeguard rights, deliver on citizen entitlements, keep abuse of political power in check and/or advance the public good. Yet, this is often not the case since their primary function in fragile states tends to be to organise and deliver the political and economic arrangements concluded between the elite groups that are usually in charge.

On a final note, it is no doubt easier to keep working from a concept that is appealing in its aspiration but largely unattainable than it is to come to terms with, and muddle through, the operational realities of bringing about incremental and progressive change in fragile political orders. However, if the ambition is to support long-term, positive development in fragile societies on grounds of solidarity, humanity and self-interest, instead of just providing palliative life support, a more practical approach to rule of law development seems long overdue.