Introduction
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The term ‘rule of law’ inspires by evoking the idea that accessible, equitable and transparent justice is necessary, possible and capable of giving human interaction greater moral depth, whether such interaction takes place between states, organisations or individuals, in private or in public spheres. This is an attractive proposition because it makes the ‘rule of law’ a global rallying call that offers a stark and positive contrast with the realities of life for many people in many countries. The concept also resonates with basic human values such as equality and fairness.‍[1]

At the same time, it is problematic to position the rule of law as a concept with a universally clear, agreed and relatively fixed meaning because many of the concepts that give substance to it, such as human rights, good governance and religion, are both globally and locally contested.‍[2] Societies have debated the scope and meaning of such notions passionately for decades – sometimes fighting over them – before settling on provisional answers.‍[3] The debate never really stops. The provisional answers, including the associated principles, laws and regulations, therefore emerge from processes of local political contestation in which the interests of different social forces clash.‍[4] These processes are grounded in norms and culture. It is the strength of these social forces and the relative weight of their interests that determine what goes by the name of justice, whether this takes the form of regulations, laws, customary justice or high constitutional principles.

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 – much more so than the international imperatives of a fairly abstract concept with universal ambition. It also means that domestic politics and culture are the primary entry point for rule of law development. This reality often appears to be downplayed in international policy discourse. In part, this is a consequence of the tension between the United Nations (UN), which, as an organisation, aspires to push global norms, and some of its members that resist such intrusion into their domestic affairs. This tends to lead to a more technical, state-centric approach to the rule of law – as opposed to a more political, human-centric approach.‍[5]

A complicating factor here is that a number of UN member states are represented by elites that lack domestic legitimacy and/or abuse their positions of public authority, and yet are considered representative interlocutors at the global stage.‍[6] This puts a double bind on the rule of law in the sense that it suffers internationally from sanitisation and ‘evasive implementation’, while domestically it often does not enjoy substantive or procedural legitimacy.‍[7]

It is from this perspective that this paper examines implications of political order in fragile societies for rule of law development.‍[8] It focuses on fragile societies because it is here that the tensions between the reality of rule and the aspiration of the rule of law are greatest due to legacies of violence, contested legitimacy and purposeful political exclusion.‍[9] Such tensions are magnified by the universal claims of the international rule of law and human rights agendas that contrast sharply with national political, social and cultural idiosyncrasies in fragile societies.‍[10] The paper takes a pragmatic approach and seeks to identify practical entry points for how rule of law development can be stimulated in the political orders of fragile societies. It develops these entry points into an outline of a theory of change that can help improve (inter)national rule of law policy development and programming efforts. Admittedly, this is a vast endeavour, to which it is hoped this paper will make a modest contribution.

Although the first draft of this paper dates from May 2016 (it was written as a discussion piece for a workshop on global rule of law programming), it now follows the publication of the 2017 World Development Report on ‘Governance and the law’. The paper has gratefully made use of parts of this report’s research and expands on it in relation to the specific topic of rule of law development in fragile political orders.‍[11]

The paper goes about this inquiry as follows. Section 2 discusses the concept of the rule of law in its various ‘degrees of thickness’ and ‘shades of grey’ between reality and aspiration. Section 3 subsequently examines the (im)possibilities of rule of law promotion in the context of the general development trajectories of fragile societies. It aims to provide a realistic general starting point for thinking about what sort of broad effects may be expected from rule of law development and how the concept relates to other meta-concepts like democracy, economic growth, statebuilding and political settlements. Using a simple model of political contestation, Section 4 subsequently analyses how political order in fragile societies shapes the rule of law. The aim here is to create more clarity on how rule of law prospects derive from broader processes of political contestation and dynamics of power. Section 5 argues for a practical shift in rule of law promotion that is both normatively and practically more recognisant of the realities of the political order of fragile societies. Such a shift requires shifting international discourse away from its present false consensus on the meaning of rule of law development into the realm of political dispute, and putting programs that seek to promote the rule of law on a more adaptive footing. Annex 1 provides working definitions of key terms used in the paper.

See for example the Universal Declaration of Human Rights: link (accessed 2 March 2017), Sen, A., The Idea of Justice, London: Penguin Books, 2010; Bingham, T., The Rule of Law, London: Allen Lane, 2010.
The findings and arguments of the 2011 and 2017 World Development Reports are illustrative: World Bank, Conflict, Security and Development, Washington DC: World Bank, 2011; World Bank, Governance and the law, Washington DC: World Bank, 2017.
The quest for equal rights for black citizens in the United States offers a remarkable illustration of the duration and violence that can characterise such contestation: 100 years separated the end of its civil war in 1865 and the march on Selma in 1965 by Martin Luther King and his followers. Heifetz, A., Leadership without easy answers, Cambridge: Harvard University Press, 1994.
Samuel Huntington argued that political institutions arise out of the clash between social interests. In a sense, laws can be considered as political institutions if the latter are seen as mediating different sociopolitical interests. See: Huntington, S., Political Order in Changing Societies, New Haven: Yale University Press, 1968.
For instance: Kavanagh, C. and B. Jones, Shaky foundations: An assessment of the UN’s rule of law support agenda, New York: New York University CIC, 2011.
See also World Bank (2017), op.cit., p. 90.
Political order is the extent to which political institutions manage to resolve disputes between different social forces and adapt in response to the changing nature of such social forces. See: Huntington (1968), op.cit.; Fukuyama, F., The Origins of Political Order: From Prehuman Times to the French Revolution, New York: Farrer, Straus and Ginoux, 2012; Fukuyama, F., Political order and political decay, New York: Farrer, Straus and Ginoux, 2014. A political system refers to the system of government in place.
For a good introduction to the thinking and phenomenon of fragility: Di John, J., Conceptualising the causes and consequences of failed states: A critical review of the literature, London: LSE (Crisis States Research Centre), Working paper no. 2, 2008. To get a sense of ‘justice differentials’ between fragile societies and their more peaceful cousins, consider the ratings of the World Justice Project’s Rule of Law Index 2015: link (accessed 31 May 2016).
The supremacy of law as proclaimed by the ‘rule of law’ has an Anglo-Saxon slant to it. Terms like ‘Rechtsstaat’ (German) or ‘État de droit’ (French) are more specific by referring to the desire (or need) to bind the state to the law, thus solving the problem created by Hobbes’ Leviathan – which in turns solves the problem of violent anarchy.
Richard Sannerholm offers interesting reflections on the ‘role of law’ vs. ‘rule of law’ terminology of the 2017 World Development Report here: link (accessed 27 March 2017).
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Problematising the ‘rule of law’ as a concept