Hope for a Rule of Law Future

By Elizabeth Andersen

Director, ABA Rule of Law Initiative

“Democracy in Crisis.” “A Global Civic Space Emergency.” “Fragility Impacts World’s Richest and Most Developed Countries.” The headlines for this year’s measures of rule of law, human rights, and good governance are a sobering read. According to the World Justice Project’s (WJP’s) 2017 Rule of Law Index, “a majority of countries worldwide saw their scores decline in the areas of human rights, checks on government powers, and civil and criminal justice.”

This is my last column for ABA ROLI, as in June I will hand the reins to a terrific new leader in Alberto Mora as I take on a new opportunity as Executive Director of WJP. As I reflect on four years leading the ABA Rule of Law Initiative, these recent reports give our movement a less than stellar report card and might even invite despair. These are indeed challenging times, characterized by growing restrictions on and threats to civil society, seemingly intractable conflict, and a populist (and popular) backlash against the rule of law in many countries. Nonetheless, I am by nature (and professional necessity) an optimist, and I find in this global landscape important reasons for hope, renewed focus, and a redoubling of efforts to advance the rule of law.

Certainly the global rule of law movement faces significant challenges around the world. The indices do not lie. In my four years at ABA ROLI, growing restrictions on civil society space have shuttered three of our offices.  We have had staff detained and harassed, an office raided and closed, and spurious legal actions taken against our organization. But at the same time, we are also poised to open new offices in four countries previously either too hostile to civil society organizations or too conflict-ridden and dangerous in which to operate. Just week before last, I joined ABA President-Elect Bob Carlson in a very fruitful discussion with Uzbek Minister of Justice Ruslanbek Davletov about the new government’s ambitious reforms and ways the ABA might support the effort, something that was inconceivable just a few years ago. Last Wednesday’s conviction of Guatemalan senior military officers in the Molina Theissen case for crimes against humanity committed 37 years ago underscores that the arc of the moral universe does indeed bend toward justice.

Reckoning with these seemingly divergent trends underscores important dimensions of rule of law development and provides lessons to inform our efforts going forward.

Lose the forest, focus on the trees.

First, rule of law development is intensely context-specific. Even when global or national trends are bleak, there is progress to be made in particular jurisdictions, on specific legal issues, in partnership with specific institutions, and on behalf of specific individuals and communities.The challenge in the face of a backlash against rule of law and human rights is to identify those areas in which change is possible, to find the change-makers, and to devise strategies to support them.This does not obviate the otherwise negative developments but provides a mitigating course that sows the seeds of long-term change.

“Plan for sailboats, not trains.”

Second, recent trends underscore Rachel Kleinfeld’s memorable admonition about rule of law development. It is a long-term project that does not proceed on a linear path. This is a difficult reality for development organizations with donors demanding results on three-year time horizons. An imperative for our movement is to devise evaluative tools that can account for this aspect of our work, that can identify progress and value even when the prevailing winds dictate a zigzag course, and that can help us make the case for the long-term investments that promise meaningful rule of law reform.

It's the people, stupid.

Years ago, when I was running ABA ROLI’s Europe and Eurasia division, then ABA CEELI, preparing for a speech on what works in rule of law development, I undertook a little survey of our 26 country directors, asking them what was the single most important factor affecting their work. I expected a mix of answers largely relating to external forces--EU integration demands, donor support, diplomatic pressure, and the like. Instead, to a one, they pointed to a factor I had discounted. Their response, which I summed up at the time as “it's the people, stupid,” has stayed with me and been borne out during my current tenure at ROLI.

We often speak about rule of law in abstract terms--as “a government of laws not men.” But the rule of law is fundamentally a system that relies on individual men and women, and their principled, diligent or courageous acts--to forego a bribe, issue an unpopular but just decision, or push through a change-making reform to make government work well for all its citizens. For this reason, of the many programs ROLI implements, I am particularly excited by the impact we are seeing from our International Justice Sector Education and Training (IJET) program. With support from the U.S. State Department’s Bureau of International Narcotics and Law Enforcement Affairs, this relatively modest program packs a significant change-making punch by supporting individual fellows, competitively selected from among government official applicants. Each IJET fellow has a proposed area of reform she aims to advance, and ABA ROLI develops a tailor-made program of support, including intensive study of relevant standards and best practices, mentorship by ABA pro bono experts, and assistance in the development and implementation of their specific change plans.It is still early days and the program will certainly see its zigs and zags, but these investments in individual change-makers are already yielding increased accountability for grand corruption in Croatia and Bosnia, measures to strengthen protection of children’s rights in the Kyrgyz justice system, this month’s launch of court-annexed mediation in the Nigerian Court of Appeals, and nationwide working groups to coordinate a multi-sector, victim-centered approach to fighting human trafficking in Mozambique.

Indeed, it is the significant role that individuals play in rule of law development that makes this work so context specific and progress possible even in the face of countervailing trends. It is also people who sometimes take reforms off course, and still other people who steer them back again. And it is people, especially lawyers, who can provide our movement’s response to the populist backlash, who understand why the rule of law matters--not just to lawyers but to all citizens--and can build constituencies for it. This is, I think, the fundamental challenge for the rule of law movement today: that we not take as self-evident the benefits of the rule of law, that even as we work to advocate for and develop laws and institutions that deliver, we also take the time to connect the dots for a diversity of stakeholders, to explain and demonstrate the relationship between the rule of law and other social goods people care about, be it economic development or security, a healthy environment or peace. 

The good news is that in the sustainable development goals we have the framework for doing so--a roadmap for pursuing, evaluating, and perfecting good governance as a critical element of global efforts to improve human well-being. And in lawyers, bar associations and other legal organizations we have the front-line foot soldiers for this effort--change-making people who are making justice and rule of law accessible, meaningful and impactful for ordinary citizens around the world. The power of these people, even in the face of today’s headline-grabbing challenges, should not be underestimated.

It has been an incredible privilege for me to support the global rule of law community through the work of ROLI these past four years. I have cherished the opportunity to come to know so many people committed to this cause, on the staff and in the volunteer ranks of the ABA and in our partner organizations and institutions around the world. It is this community that fills me with confidence in a rule of law future, and I look forward to being its biggest booster from a new perch at the WJP.

Disclaimer: The views and opinions expressed in this article are the author’s own and do not necessarily reflect the views of ABA ROLI.