The limits of, and opportunities for, rule of law development emerge from processes of political contestation. It is through such processes that individuals and groups with resources compete to influence and establish the formal and informal rules for how power can be distributed, exercised, enforced and constrained in a society at a particular point in time. This means that the characteristics of the process of local political contestation matter a great deal for the meaning and shape of the rule of law. It also means that domestic politics and culture are the primary entry points for rule of law development. There is evident tension between this observation and the imperatives of the rule of law concept in its universal and abstract version. The universal claims of the international rule of law and human rights agendas contrast particularly sharply with national political, social and cultural idiosyncrasies in fragile societies because of their legacies of violence, contested legitimacy and intentional political exclusion. This situation has three major implications for international support for rule of law development.

To start with, rule of law development in fragile societies must be understood and conceptualised as a contested change management effort situated primarily in the political – not judicial – realm that starts from a very modest basis. Early exits from violence and fragility have tended to be fairly autocratic in nature, with elites capturing both key political and security institutions. They have typically allocated significant resources to a development-oriented strategy while also engaging in inclusive elite buy-in and patronage practices. In terms of the rule of law, this suggests that power needs to be consolidated before it can be regulated more impartially. If that is the case, the chief purpose of rule of law promotion is to recreate the norms, incentives and institutions for peaceful conflict resolution in ways that are compatible with such power consolidation. This suggests a quite different focus and logic than the generally assumed positive correlations between rule of law promotion and democratisation, economic growth or statebuilding do. In fact, there is little evidence to support any such correlations in the first place.

Moreover, the ambitions for, and approaches to, rule of law development in fragile societies need to become much more realistic by taking greater account of practical limitations 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 what limited reform is possible and/or what regress can be prevented. Under the logic of the political order of fragile societies, the passage of new laws or judicial institutional performance improvement initiatives will not necessarily represent effective ways of improving the quality of the rule of law. Instead, three areas of focus deserve greater attention than they currently receive:

Finally, the false impression of consensus that prevails in the international discourse on what the rule of law amounts to, and how it should be implemented, must be called into question. 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. In consequence, international actors spend too little time and effort, in particular in fragile societies, on 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 processes of political contestation. This is the case for sensitive constitutional redesign as much as it is for innocuous-looking efforts to improve legal aid. Many legal aid claims will, for example, centre on land belonging to powerful elite members.

On a closing 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.