By Elizabeth Andersen
Director, ABA Rule of Law Initiative
As the development community gears up for the final round of negotiations to set the post–2015 development goals, there is much debate about whether the goals should include governance targets and what they should be. For those of us who care about the rule of law, the debate poses three significant questions: What is the rule of law? Can we, as development actors, do anything to advance it? And, how do we measure progress? This is an important conversation for us to have, and I invite Update readers to join in. Here is my quick take on these questions.
What is the rule of law?
I had the privilege this month to participate in a panel discussion on the role of rule of law in the emerging development agenda, organized by the ABA Section of International Law at the World Bank Law, Justice, and Development Week. Styled as a series of “opening statements” making the case for including the rule of law in the post–2015 development goals, the panel itself illustrated a significant challenge we face in ensuring that rule of law figures in the final goals. With nine of us on the panel, the audience heard almost as many different takes on what “the rule of law” means for these purposes. For the speakers, “rule of law” meant everything from a regulatory environment that can protect the environment to adherence to international legal obligations on issues such as nuclear disarmament, with human rights, women’s rights and an enabling environment for commercial investment in-between.
Setting aside all of the potential political challenges to including rule of law in the post–2015 goals, we obviously have a preliminary challenge of developing consensus on what such a goal encompasses. The rule of law has, as a concept, a broad reach. Indeed, that’s part of its appeal and importance, and it doesn’t really distinguish it from some of the other categories of development goals, such as health, decent work or sustainable use of our natural resources. Meaningful goals don’t require that we define, let alone achieve, perfect rule of law—in all its dimensions—in 15 years. Next year, we celebrate the 800th anniversary of Magna Carta, a rule of law promise that is still a work in progress, and our understanding of what it means continues to evolve from an original deal with a handful of landed barons to a set of principles that guarantees fundamental rights for peoples not even recognized as such in 1215.
Although rule of law is an evolving long-term challenge, that shouldn’t prevent us from defining what we can and should do in the short term to improve governance. What is important for the post–2015 debate is that we pinpoint some critical, identifiable elements of the rule of law to prioritize and work toward. We already begin to see these crystallizing in discussion of the post–2015 goals. What is emerging in various forms from the High Level Panel on the Post–2015 Development Agenda, the Open Working Group on Sustainable Development Goals and other civil society commentators is an important focus on certain critical building blocks of the rule of law, elements of good governance that can empower citizens to make the most of all of our other development interventions—steps such as securing identity for all; prohibiting discrimination of all kinds; guaranteeing access to information and participatory governmental decision-making; prohibiting and ensuring accountability for torture and police abuse; and prohibiting and ensuring accountability for public and private corruption, to name a few. We need not agree on all aspects of the rule of law, or on the ideal legal system, structure and process, in order to identify such goals and paths to achieving them. This is an essential conversation that needs to take place, that is taking place, yielding valuable input from the world over regarding our rule of law priorities.
What can we do to advance the rule of law?
Once we define our rule of law goals, we face a second challenge of identifying effective strategies to reach them. Nobody wants to set a goal that we cannot achieve. Critics argue that rule of law assistance is ineffective, that reform is illusory and fleeting, that promoting it from without is a waste of time and resources. They are right to insist on development effectiveness, in rule of law as in all areas. And it is true that it can be exceedingly difficult to design effective interventions to advance the rule of law. But we should not confuse these difficulties with futility. Indeed, over the past several decades, the rule of law development community has come a long way in terms of its understanding of the factors of change. We know that the rule of law is more than skin deep. Just as we will not resolve hunger by delivering food, we will not establish the rule of law with shiny new laws and courthouses. We have honed proven strategies that help ensure that reform is locally owned and matched with capacity of public and private actors to implement and enforce it—in short, to make it sustainable. See for example, ABA ROLI programs described in this Update, such as the new clinic and paralegal network to provide legal services to rural women and girls in Guinea; or the ABA ROLI-sponsored Balkan Regional Rule of Law Network, supporting regional bar leaders in setting and implementing their own agenda for criminal justice reform. We should not be satisfied, we need to continue to innovate and learn, but today, we, as a rule of law development community, have the tools to realize this agenda.
How do we measure progress?
Related to the challenges of defining the rule of law and identifying effective strategies to build it, is the challenge of measuring it. Much of the effectiveness of the Millennium Development Goals has been chalked up to the fact that they were measurable benchmarks that held development actors accountable. Critics of inclusion of the rule of law in the post–2015 development agenda suggest we should skip goals that we can’t measure. On this score, they are sadly off-target. Sources like the World Justice Project’s Rule of Law Index and the World Bank Group’s Worldwide Governance Indicators are very useful when it comes to finding indicia for measuring rule of law development. Moreover, monitoring and evaluation of rule of law should not be, and increasingly are not, limited purely to engagement in a ‘numbers game’. Increasingly, we partner with local organizations to conduct surveys in order to evaluate whether people trust institutions of governance, to give them a voice and stake in reform, to identify interventions that can make a difference, and to measure their effectiveness. Evaluating progress in this realm is tricky and expensive but doable and essential.
Given that the world will spend 2.5 trillion dollars on development aid in the next 15 years, we—as a global community, speaking with one voice—need to think carefully about which goals will be included. For those of us in the rule of law development community, this is an important opportunity to think hard about our rule of law priorities, the specific, attainable rule of law building blocks that we know are essential to realizing good governance and all of our development objectives, and to use all that we have learned in the rule of law development field over recent decades to develop strategies to advance them, measure the progress we make and hold ourselves accountable. I look forward to working with the friends and partners of ABA ROLI to bring all that our organization has to bear on this critical process of development policy making.
Director, ABA Rule of Law Initiative