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August 09, 2022

A Discussion with Scott Carlson on USAID’s New ROL Policy

Eman Elshrafi, Intern for ABA ROLI's LAC Division

What is the rule of law? This three-word phrase, simple yet powerful, conjures a perception of complexity. The problem with this, however, is that instead of embracing that complexity, we often want to wrap it up in a perfectly square box ready to relegate to specialized professionals. While in some instances that may be appropriate, in the case of the rule of law, it is not. The rule of law not only touches all aspects of the human experience, but it is also the foundational framework upon which societies are built. And still, despite its manifest significance, the rule of law remains little understood.

Earlier this year, the United States Agency for International Development (USAID)’s Center for Democracy, Human Rights and Governance published a rule of law policy draft for external notice and comment with the final version set to be released at the end of the fiscal year. This policy, affirming USAID’s commitment to rule of law promotion, sets forth to remedy the knowledge gap by adopting a common definition and outlining a new rule of law paradigm; an effort applauded by Scott Carlson, Associate Executive Director of Global Programs at ABA, as a step towards “demystifying the rule of law.”

Perhaps most notably, the policy takes a system-oriented approach. And in this system, the people are at the center. This new people-centered justice methodology shifts the focus from reforming institutions to transforming them to become more responsive to the justice needs and legal problems of the individuals they are meant to serve. It engages both the formal and the informal, moving away from prescriptive technical approaches to flexible approaches that take into account local contexts. Moreover, it reframes justice as a service that is solution-focused, user-friendly, prevention-oriented, data-driven and provides for multiple pathways. 

At ABA ROLI, where programmatic efforts are driven by rule of law promotion, there is a sense that this policy has been a long time coming. According to Scott Carlson, 

The lack of recent emphasis—amongst, particularly, the Western democracies—about the importance of rule of law and the struggle to articulate why it’s so important to have these institutions and processes in place has been really a bit shocking. I feel fortunate that the ABA has one of its core goals, Goal IV, to promote the rule of law. That’s why we gravitated so quickly towards this new rule of law policy - in part because it elevates the conversation, and it makes it more in the space for everyone to look at.

However, he notes that,

Since the Administration announced the Summit for Democracy, we have been suggesting that it is important to make rule of law a cross cutting issue, elevating that in the conversation. So, we have been dialoguing with USAID and the State Department about creating a Rule of Law Cohort to help elevate this as we come up for another Summit for Democracy. This conversation has been ongoing, and I think this USAID rule of law policy will help. I have witnessed some really good conversations…If you have a meeting of the minds that we need to start talking about it, that’s step one, but then step two is fleshing out some of these policies and allocating resources to buttress the rule of law.

When asked why he believes that the rule of law has been poorly understood, Carlson explained, 

One of the things is that the systems part scares people. Unless you’re someone who has actually studied this, you go oh my gosh yeah, but rule of law is so complicated. How are we going to really do anything about that? That’s one reason why I liked the way the rule of law policy laid out the issues. They intentionally made it non-prescriptive, and they said ‘hey, here are the issues. Here’s how you unpack them, and remember its different in each context, but here are some common themes that you should look for and see how they get expressed.’ One of the comments we gave was the importance of demystifying the rule of law because when people hear that phrase, there’s a certain “I’m not a lawyer, and I can’t understand what you’re saying.” And that’s absolutely the wrong reaction. We want the common citizen to say, “yeah I know what the rule of law is.” There’re all these different expressions of it that are so valuable to tackling both local problems, as well as larger global ones.

An aspect that has been lacking but is critical to rule of law promotion, is recognition of its role in development. During the recent DRG conference, Carlson emphasized that there is a fundamental truth that the rule of law is essential to sustainable development because “if the recipient government cannot provide rule of law, the assistance will be more akin to humanitarian relief efforts, not true development. 

When asked about this comment, Carlson clarified, 

There hasn’t been a proper distinction between development and humanitarian assistance. So, for example, we spend a significant amount of money on international health. If we can’t guarantee, that the money that we’re contributing for AIDS retrovirals is actually resulting in real, quality retrovirals reaching the people and that there are systems in place to ensure that nobody is skimming that off or introducing counterfeits into the supply chain, are we really engaged in ‘development’, as opposed to humanitarian relief?  So, I think we blur those lines a bit, and one of the things that was talked about a few years ago, and I think the rule of law policy tries to bring it back to some degree, is the idea of rule of law integration. So anytime you think about a programming, if you don’t set up the structure so that the citizens can help police whether or not these resources are getting distributed, inevitably, corrupt elites are going to see this as an opportunity to make money and do what they tend to do to skim it off. Then, nobody is happy. And then that turns people off development because they say, see we’re just throwing good money after bad so…if you really think your development assistance is effective, you need to understand whether the systems and processes are in place to make sure it's being used in the way intended.

Ultimately, the rule of law is the chain, which ensures the proper movement of the gears that enable the efficient operation of the machine. If that chain is not working effectively, it will impact not only the individual gears, but the entire system as well.

So now that this policy is tangible, what are the next steps? 

According to Carlson, 

There needs to be education in sectors that aren’t normally thought of as rule of law sectors, and that needs to be thought through…We have work to do on that because you need to be able to show up with this different audience and not have them get frightened by rule of law but think of it as their own systems that they’re frustrated or having problems with. 

Demystification of rule of law is just beginning. Talking about how it applies in these rather ordinary settings that affect people is the next step because that’s when you’ll find that people who have dedicated their lives to agriculture, education, and health, they’ll see that help is on the way if I can incorporate some of these people. They may never be the leader on a rule of law project, but they’ll know enough to say I’m going to keep rolling around on this hamster wheel if I don’t bring in some of these resources to look at these processes and systems and make sure these larger objectives that we have for the sector are being realized. It's going to take a while, but it’s a labor of love. Certainly, the staff at ABA ROLI are up for it and a huge contention at USAID that’s ready for it.

As acknowledged by USAID, 

The rule of law has no finish line; it is an unfolding process defined as much by a joint aspiration between USAID and its partners to improve as it is by a recognition of current imperfections. The outcomes we seek together will necessarily be aspirational and broad. They are the unknowns that are part of every democratic experiment. They outline the destination of and illuminate the core imperative of our programming: to contribute to the continual improvement of the evolving, unfinished construct that is rule of law.

At a time where the rule of law is facing ever-increasing challenges on a global scale, it is more important than ever to join hands in the battle for a more just world. We have to be able to get comfortable with complexity in order to stride for real change. We have to complicate to simplify. While the journey ahead is still a long one, USAID’s new rule of law policy is a good step forward. After all, we have to start somewhere. 

The statements and analysis expressed in this paper are solely those of the authors. The Board of Governors of the American Bar Association (ABA) has neither reviewed nor sanctioned its contents. Accordingly, the views expressed herein should not be construed as representing the position or policy of the ABA. Furthermore, nothing contained in this paper is to be considered rendering legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel.