Introduction: Definitions & Conceptual Issues

Defining rule of law

"A principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency."

Source: Report of the Secretary General on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616 (August 23, 2004), 4, para. 6.

Although the expression "rule of law" in current usage encompasses multiple meanings, in international practice it generally refers to the guaranteeing of the rights and freedoms of citizens or, in other words, of their security and integrity. This includes the equal protection and non-discrimination of citizens, access to justice, due process, police accountability, and judicial independence. It also implies that the government itself is bound to laws that are consistent with international standards.1 Indeed, in contrast with the concept of "rule of man," Aristotle coined the expression "rule of law," the core principle of which was containment of the arbitrary exercise of power.2 This principle also implies a distinction between rule of law and rule by law. Indeed, some may focus more on "the regular, efficient application of law but do not stress the necessity of government subordination to it. In their view, the law exists not to limit the state but to serve its power."3 This is a very narrow conception that may coincide with orders controlled by authoritative regimes. Rule by law means that the law is an instrument of government and that the government is above the law (as exemplified by the Nazi and South African apartheid regimes which were "ruled by law"). By contrast, the rule of law means that everyone in society, including the government, is bound by law.

In academic and policy discourses, portrayal of the "rule of law" is extremely varied. "Some see it as a conceptual political ideal, others as a tangible legal institution.  Some consider it the centerpiece of any viable political system, while others demonize it as the enemy of democracy. For some it is a current reality, for others a distant aspiration...Despite the concept's recent resurgence in academic debate and international practice, and its popularity with aid donors in post-conflict and post-communist states, confusion persists about its meaning and scope among scholars and practitioners alike."4

At an operational level, many practitioners see rule of law as having "a fair amount of overlap with other related concepts, such as security sector reform, judicial sector reform and governance reform."5 As a result, in the peacebuilding arena, these three components of peacebuilding, which are in practice closely inter-related, may be distinguished in various ways, depending on actors, agendas and programs.

"The rule of law can be defined as a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone. They enshrine and uphold the political and civil liberties that have gained status as universal human rights over the last half-century. In particular, anyone accused of a crime has the right to a fair, prompt hearing and is presumed innocent until proved guilty. The central institutions of the legal system, including courts, prosecutions, and police, are reasonably fair, competent, and efficient. Judges are impartial and independent, not subject to political influence or manipulation. Perhaps most important, the government is embedded in a comprehensive legal framework, its officials accept that the law will be applied to their own conduct, and the government seeks to be law-abiding."

Source: Thomas Carothers, "The Rule-of-Law Revival," in Promoting the Rule of Law Abroad: In Search of Knowledge, ed. Thomas Carothers (Washington, D.C.: Carnegie Endowment for International Peace, 2006), 4.

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"Procedural" vs. "substantive" conceptions of the rule of law

There are two conceptions of the rule of law, which often stand in contrast: procedural and substantive rule of law.

"Procedural" or "minimalist" rule of law

According to a "procedural" or "minimalist" conception, the rule of law can be described as a system where laws are generated by some predictable and participatory process, regardless of the content of those laws. The focus of this school of thought is on the formal attributes of the rule of law, namely, predictable and enforceable laws. The chief shortcoming of this conception of the rule of law is that it is "empty" of content. According to its criteria, illiberal political systems where substantial segments of society are disenfranchised (such as in apartheid South Africa) could be considered as being governed by the rule of law.

"Substantive" or "maximalist" rule of law

The substantive conception of rule of law posits that laws should contain normative content, mainly with regard to human rights. The focus of this school of thought is on the substance of laws. Whereas procedural conceptions are open to criticism for being too "thin," substantive conceptions of the rule of law are open to criticism for being too "thick"--that is, the idea that there are universal norms and values that animate the rule of law. This espousal of universal norms and values may be in tension with the notion that norms and values are culture-specific and should be accepted as such.
Go to Key Debates and Implementation Challenges

It is important to note that the UN definition of the rule of law, which is perhaps the most oft-cited one, combines both procedural and substantive elements.6

The implications for peacebuilding

The implications of these definitional and conceptual disagreements are important for peacebuilding. A procedural/minimalist understanding of the rule of law connotes what peacebuilders call "negative peace"--meaning, the absence of violent conflict; a substantive/maximalist understanding, on the other hand, is closely associated with the concept of "positive peace" or "sustainable peace"--that is, the presence of durable foundations/conditions of peace, which implies the transformation of the conditions that give rise to violent conflict. Scholar Rama Mani notes: "The outstanding difference between the maximalist and minimalist views concerns not the form of the rule of law but its fundamental ethos. The crux is whether the substantive and moral content of the laws is and should be a determinant or rather a peripheral feature of the rule of law, and whether the concern should be with form or substance. This apparently minor conceptual divergence has major practical implications. In the absence of a single clear, dominant conception of the rule of law, and the absence of debate about divergent views, practitioners remain confused as to whether rebuilding the rule of law requires rehabilitating its structures or reconstituting its substance."7

In post-conflict settings, the difference is noticeable. "For ordinary people, restoring the rule of law will be meaningful only if it is synonymous with justice, with protecting their rights and dignity so that they can live safe from humiliation and fear. The demand of people in post-conflict societies, in effect, is not just for order and 'negative peace' which national and international governments have their sights focused on, but simultaneously for legal justice and 'positive peace' to cement and consolidate it."8 If the rule of law is formally restored but its substantive content is devoid of justice, "it may succeed temporarily in underpinning order and preserving negative peace, but it will provide an insubstantial foundation for consolidating a just peace."9 Unfortunately, rule of law programs implemented in peacebuilding operations do not necessarily answer local citizens' demands for justice. Indeed, there is "a conundrum between the need for a normative ambitious concept of the rule of law that delivers justice and protection to people, and the reality of programs that are unable to deliver on these ambitious objectives. The choice is between downsizing definitions of the rule of law to fit the minimalist reality of current rule of law programs, or significantly upsizing programs--effectively radically overhauling them--to meet at least some of the high aspirations and declared objectives of definitions like the one put forth by the UN Secretary-General Kori Annan in 2004."10
Go to Introduction to Peacebuilding: Negative and positive peace

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"Institutional" attribute versus "ends-based" definitions of the rule of law

The field of rule of law assistance is characterized by two competing definitions that shape how practitioners conceive of and carry out their activities in post-conflict settings.

"Institutional attributes" definition

As the term suggests, this definition emphasizes the formal institutional attributes that are thought to embody the rule of law. This institutional approach is most widespread among practitioners and policymakers. "Modern rule-of-law practitioners still define the rule of law as a state that contains these three primary institutions:

  • Laws themselves, which are publicly known and relatively settled;
  • A judiciary schooled in legal reasoning, knowledgeable about the law, reasonably efficient, and independent of political manipulation and corruption; and
  • A force able to enforce laws, execute judgments, and maintain public peace and safety: usually police, bailiffs, and other law enforcement bodies."11

Ends-based definition

By contrast to an "institutional attributes" approach, practitioner Rachel Kleinfeld proposes an ends-based definition of the rule of law, referring to the ends, or societal goals, that the rule of law is meant to serve. This definitional approach distinguishes between institutions and the rule of law, arguing that the two are not synonymous. The five goals of an ends-based definition include:12

1)Government bound by law;

2)Equality before the law;

3)Law and Order;

4)Predictable, Efficient Justice;

5)Lack of State Violations of Human Rights;

The implications on rule of law assistance

Discussing these competing definitions and conceptions of the rule if law is not simply an intellectual endeavor; rather, it has serious implications for how rule of law assistance is carried out in post-conflict settings.

The principal implication of an institutionalist conception and definition of the rule of law is that institutional reform, or reforming formal institutions such as the judiciary, police, etc., may become the end goal of, rather than the means to, peacebuilding. Although reforming or (re)building institutions is essential, it may not have a direct and tangible impact on the state of rule of law in a given society; it does not say anything about the nature of the "order" these institutions are meant to uphold. As a result, a focus on institutional reform tends to be primarily technical in nature, directing assistance at the symptoms rather than the causes of the problem.
Go to Judicial and Legal Reform/(Re)Construction - Key Debates and Implementation Challenges

The implications of an ends-based definition are the following: 13
  • For any rule-of-law end, all institutions must be reformed.
  • Achieving rule of law ends requires political and cultural, not only institutional, change.In that perspective, the political dimensions of reform are crucial; it includes outreach to the public to involve them, explain what is going on and give them a role in oversight. Paying attention to these matters will help avoid making reform a mere technical exercise.
  • Not every program aiming at reforming legal institutions is qualified as rule-of-law reform;
  • Rule-of-law ends are in tension--particularly in poor societies or societies with a weak rule of law. Improvements in one end goal can decrease success in others.
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Defining justice

Justice is a universal principle that has been debated for millennia by philosophers across all civilizations, and that finds diverse expressions in all cultural, religious and spiritual traditions. In a seminal report on the rule of law and transitional justice, the Secretary-General of the United Nations defines justice as "An ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs.  Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large."14 This definition highlights two particular dimensions that are often debated in the transitional justice field: the retributive justice (punishing perpetrators) and the restorative justice (focusing on the needs of victims and on restoring relations between victims and perpetrators).

"An ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs.  Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large.  It is a concept rooted in all national cultures and traditions and, while its administration usually implies formal judicial mechanisms, traditional dispute mechanisms are equally relevant."

Source: Report of the Secretary General on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616 (August 23, 2004), 4, para. 6.

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The different types of justice

In the literature, one can find a variety of typologies of justice. Aristotle differentiated between three related dimensions of justice: legal justice (or rule of law), rectificatory justice (or righting wrongs) and distributive justice (addressing socio-economic inequalities).  Scholar Rama Mani has built on this categorization to explore the three dimensions of justice in post-conflict societies:

  • Rectificatory justice: rectifying the injustices that are direct consequences of conflict  a term most closely associated with what is commonly referred to as transitional justice;
  • Legal justice: addressing legal injustices, such as  political manipulation of the legal system, corruption of the judiciary, lack of access to justice; and
  • Distributive justice: structural and systematic injustices and distributive inequalities whether political, economic, or social, that are frequently at the root of violent conflict.15
According to this multidimensional framework, justice is beyond that which is judicial or non-judicial. Rather, it touches upon a vast range of issues which relate to other dimensions of the peacebuilding agenda, such as security sector reform, democratization and civil society development, reconciliation and recovery from trauma. In line with such a framework, some scholars who work on justice issues in post-conflict societies argue that it is virtually impossible (and conceptually unhelpful and policy-wise dangerous) to separate justice and peacebuilding in post-conflict settings, and instead call for a holistic approach to justice in such contexts.16 However, others caution against too broad a definition, as broadening the meaning of justice to encompass the building of a just and peaceful society may make it so broad as to become meaningless.17It is worth noting that this debate is not specific to the area of justice and rule of law; it is reflected in many dimensions of peacebuilding.

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Backward-looking versus forward-looking conceptions of justice

Narrow conceptions of justice tend to emphasize legal approaches and also espouse a backward-looking understanding of justice--that is, judicial and non-judicial measures that mete out justice for past violations and abuses. By contrast, a forward-looking understanding of justice places emphasis on approaches that seek to prevent the recurrence of human rights violations in the future, primarily through institutional reform and societal change. A narrow view can also be criticized for "ignoring root causes and privileging civil and political rights over economic, social and cultural rights and by so doing marginalizing the needs of women and the poor."18Of course, in reality, the distinction is not so strong; for instance, prosecutions also display important forward looking aims in terms of deterrence of future violations and contribution to building the rule of law.19

1. Beatrice Pouligny, "UN peace operations, INGOs, NGOs, and promoting the rule of law: exploring the intersection of international and local norms in different postwar contexts," Journal of Human Rights 2, no. 3 (September 2003): 359. International organizations usually refer to these different elements; see the UN definition above and also the one used by the World Bank: Legal Vice Presidency, World Bank, Legal and Judicial Reform: Strategic Directions (Washington, D.C.: January 2003), 1-2.
2. Charles T. Call, ed., Constructing Justice and Security After War (Washington, D.C.: United States Institute of Peace Press, 2007), 6; Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Cambridge, UK: Polity Press, 2002), 25.
3. Thomas Carothers, "The Rule-of-Law Revival," in Promoting the Rule of Law Abroad: In Search of Knowledge, ed. Thomas Carothers (Washington, D.C.: Carnegie Endowment for International Peace, 2006), 5.
4. Mani, Beyond Retribution: Seeking Justice in the Shadows of War, 25.
5. Report of the Secretary General on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies,UN Doc. S/2004/616 (August 23, 2004), 4, para. 5 [hereafter the 'Rule of Law" report].
6. See above: "A principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency." Report of the Secretary General on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616 (August 23, 2004), 4, para. 6.
7. Mani, Beyond Retribution: Seeking Justice in the Shadows of War, 29.
8. Ibid., 85.
9. Ibid., 86.
10. Rama Mani, "Exploring the Rule of Law in Theory and Practice," in Civil War and the Rule of Law: Toward Security, Development, and HumanRights, eds. Agnes Hurwitz and Reyko Huang (Boulder and London: Lynne Rienner, 2008), 22.
11. Rachel Kleinfeld, "Competing Definitions of the Rule of Law," in Promoting the Rule of Law Abroad: In Search of Knowledge,  47.
12. Ibid., 34-47
13. Kleinfeld, "Competing Definitions of the Rule of Law," 54-63 and comments by Bill ONeil, 3 June 2008.
14. Rule of Law Report, 4, para. 8.
15. Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War, 5-11.
16. Ibid., 173-178; see also Rama Mani, "Rebuilding an Inclusive Political Community After War," Security Dialogue 36, no 4 (December 2005): 511-526.
17. See for instance Naomi Roht-Arriaza, "The New Landscape of Transitional Justice," in Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice, eds. Naomi Roht-Arriaza  and Javier Mariezcurrena (Cambridge: Cambridge University Press, 2006), 2.
18. Ibid., 2.
19. Personal communication with Ana Patel, 24 November 2008.
20. Roht-Arriaza, "The New Landscape of Transitional Justice," 2.

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