The rule of law has become a global ideal. It is supported by people, governments and organizations around the world. It is widely believed to be the cornerstone of national political and legal systems. It is also increasingly thought of as a fundamental principle of international relations and international law. In the 2005 World Summit Outcome document, the heads of states and government of the world agreed to recognize ‘the need for universal adherence to and implementation of the rule of law at both the national and international levels.’ A year later, the United Nations General Assembly adopted a resolution on ‘the rule of law at the national and international levels.’ Few, if any, ideals have achieved such widespread acceptance and broad application.

The rule of law field has come a long way in the last several decades. Yet, given the diversity of competing definitions and conceptions of rule of law, there remain serious doubts about whether there is such a thing as ‘a rule of law field’. Moreover, despite a growing empirical literature, there remain serious doubts about the relationship, and often the causal direction, between rule of law and the ever-increasing list of goodies with which it associated, including economic growth, poverty reduction, democratization, legal empowerment and human rights. In considering where the rule of law field is headed, and the possible contribution of a dedicated journal such as this to the development of the field, I focus on four areas that respond to the preceding concerns (though neither the list of concerns nor the responses are in any way meant to be exhaustive). The first area is conceptual or theoretical, and highlights the need to move beyond attempts to generate a consensus definition, in favor of adopting a more pragmatic perspective that accepts multiple perspectives and conceptions, and takes advantage of the diversity of definitions and measures to test the relationship between rule of law and the increasing list of other social goods. The second is methodological, and highlights the need to switch from increasingly insistent prescriptions based on increasingly comprehensive and specific Euro-American institutions, rules, practices and norms toward a more process oriented approach that recognizes a greater role and responsibility for target countries and is more open-ended and tolerant of institutional innovations and differences in norms, practices and outcomes.The third is empirical, and highlights the need to move beyond the currentbroad empirical studies of rule of law to a more focused study of particular institutions, rules and practices in achieving various desired outcomes, as well as more focus on what works at what level of development and under what socio-political conditions.The fourth is disciplinary, and highlights the need for greater interdisciplinary work given the integral relation of legal reforms to other reforms, as well as the need to bridge the gap between academics and rule of law practitioners so as to provide policy-makers more effective guidance.

Many in the West believe that sharia and rule of law as defined by international law are hard to reconcile. In his think piece, Otto argues that this view ignores developments and trends in many Muslim countries which point to a gradual rapprochement between sharia and rule of law. He also points out that many Western observers are insensitive to the fact that rule of law requirements can be met in non-Western ways. In this connection, Otto reminds his readers of Van Vollenhoven's monumental effort to map out and understand Indonesian adatrecht against the background of a Dutch colonial administration that was arrogant, incompetent and indifferent with respect to local laws and sharia. Otto concludes his piece by formulating an ambitious research-agenda for the Hague Journal on the Rule of Law with respect to rule of law and sharia.

There are at least three sorts of difficulties that hamper successful promotion of the rule of law. Each of these would be lessened by integration of materials which RoL promoters commonly avoid. First, the rule of law depends upon many factors beyond what most lawyers know, or know how to know. These include non-state norms, attitudes, beliefs, practices and institutions. Secondly, this is not a peculiarity of societies where the rule of law is weak and in need of promotion, but true of all societies, including those of rule of law promoters. Recognition of this requires reconceptualization of what is required for law to rule. And that, in turn, would benefit from integration of thought from domains and disciplines that RoL promoters have hitherto tended to consider other people's business. Such disciplinary ecumenism might make them more alive to the ends of what they are trying to promote; less aimlessly tied to particular institutional means.

The continuation of a major role for the state in developing economies, and the emergence of forms of intervention not employed in the past, suggests that we may be seeing the emergence of a ‘new developmental state’ that is inspired by a new political economy.

This paper reflects on questions as to whether legal empowerment projects have been able to strike a balance between competing aspects of rights and social justice and change prevalent structural inequalities and power relations that essentially perpetuate disempowerment of the poor and disadvantaged groups in the first place. In other words, do the strategies simply provide ‘quick-fix’ solutions and promote a politically disengaged model of empowerment or do they assist beneficiaries in developing an intrinsic understanding of the issues at hand and the capacity to deal with them in effective ways? Additionally, the paper addresses the problem of impact assessment and sustainability of legal empowerment strategies.

The international rule of law movement focuses too often on countries that many of its professionals know less well than their own. As a result, rule of law assistance has suffered from lack of legitimacy, shortage of competence, and insufficient attention to its transnational relevance. But in a globalized age, the rule of law enterprise increasingly blurs traditional boundaries – between north and south, national and international, and capacity-building and implementing. Rule of law problems are too vast, complex and inter-related not to draw upon the experience and expertise of actors from all corners of the globe. But for that to happen, we must begin to think about rule of law reform as something that happens, not only ‘there’ but ‘here’ as well.

Despite a voluminous ‘lessons learned’ literature, there is much that we do not understand about rule of law assistance. Conceptually it lacks clarity and in practice seems to proceed in the absence of rigorous empirical research and ‘thick’ descriptions of the institutional histories, reform politics and the legal and social cultures of the countries it targets. Many academic colleagues, development practitioners, lawyers and policy-makersand students are troubled by the knowledge vacuum in rule of law assistance. Here I consider some of the genuine and persistent questions about its scope and effect. I suggest that we need to find better answers, for our own intellectual and practical purposes, but also for the citizens of developing and transitional economies, who are the intended ‘beneficiaries’ of much rule of law assistance.

The private sector has traditionally had a strong concern for monitoring and improving the quality of its goods and services. This tradition became clearly visible in the 1950s when Japanese enterprises were criticized for the poor quality of their products. In response to these critics, measures were taken in the form of ‘total quality control’ (TQC). During the past decades, many other general quality models have been developed. Can the same be said of the judiciary? Does it also use quality principles and quality systems or is the judiciary still at the beginning of its journey towards ‘court excellence’?

This paper argues that the concept of justice represents a broader and more effective organizing principle than the rule of law for international efforts to alleviate poverty. The current focus on the rule of law by international development agencies features a concentration on courts, other legal institutions, judges, laws and lawyers. But justice is about far more than the rule of law. The prescriptive portion of the paper argues that justice is about fair treatment and fair results regarding a whole host of priorities that, if supported by the international community, can better address the rights and needs of the poor. It includes organizing the disadvantaged and advocacy by and for them. The paper concludes on a predictive note that is far from optimistic about a shift from the rule of law to justice. It sketches two pessimistic scenarios for how relevant international efforts will look ten years down the line, but holds out some slight hope for two more positive scenarios emerging involving legal empowerment.

Frequent agreement on the rule of law in theory is possible in large part because of divergent views on what it means in practice. This essay briefly addresses the content of the rule of law at the international level before discussing the challenge to this idea presently posed by the United Nations Security Council – the one international body with the power to enforce the law, but which is nevertheless loath to submit to it.

In Resolution 62/70 of 8 January 2008, the UN General Assembly speaks about the rule of law at the international level and the rule of law at the national level. While these two phrases have framed the practical and scholarly debate on the rule of the law over the past years, this bifurcation hampers our understanding of, as well as effective policy formulation for, the rule of law problems that unfold in the 21st century. The rule of law increasingly is implicated at the interaction and interface between international and national law. We do not only speak about the rule of law at international level and the rule of law at domestic level. We also, and increasingly, have to speak of an internationalized rule of law. This is the rule of law as it applies to the overlapping sphere of domestic and international law.

This article is based on the proposition that the International Criminal Court (ICC) will need to become less ‘international’ and more ‘domestic’ if international justice is to stay relevant over the next ten years. The legal basis for this shift is already embodied in the ICC's core principle of complementarity that gives nation states jurisdiction over international crimes when conditions of judicial competency have been met. However, this jurisdictional shift from the ICC to domestic courts will have significant and far-reaching consequences. Building the capacity of national judicial systems will become increasingly important in the years ahead. The challenges will be daunting. The article maintains that it is paramount that the international community provide some discernible assistance to these new domestic courts to ensure that domestic proceedings are consistent with international norms. It sets out an effective mechanism that could be created to assist in this endeavour.

The article also looks at the challenges faced by the ICC and nation states in determining a state's inability to prosecute. Obviously, when there is total or substantial collapse of the judicial system, it is not difficult to determine that a state is incapable of undertaking trials. However, in more nuanced situations, the idea that the ICC will pass judgment on state courts is highly controversial. The inherent ambiguity and subjectivity in defining what constitutes inability to prosecute could easily place the court in a ‘stand-off’ with a nation state. The article sets out an approach for an objective, impartial and non-political evaluation regarding a state's ability to carry out judicial proceedings consistent with international standards. Such an evaluation would not be binding on the ICC, but would offer guidance in rendering a fair decision and impart valuable legitimacy.

The author examines how developments in international criminal law – including creation of the International Criminal Court and various hybrid tribunals – can have an impact on rule-of-law building efforts in post-conflict societies. Although trials of atrocity perpetrators primarily and appropriately focus on fairly trying the accused individuals, these processes also have a wider impact on public perceptions of justice and potentially can influence a society's ability to embrace rule of law norms. The quality of outreach and capacity-building accompanying these trials may well have a decisive effect on whether these proceedings, on balance, strengthen or undermine public confidence in justice and justice institutions in societies recovering from atrocities. This piece stresses the need to supplement international and hybrid criminal trials with more meaningful outreach to the affected populations, and with more systematic domestic capacity-building and empowerment aimed at both formal justice systems and civil society.

In 2008, the Commission on Legal Empowerment of the Poor (CLEP), chaired by Madeleine K. Albright and Hernando de Soto, published its report Making the Law Work for Everyone. In this report, the CLEP argues ‘… that four billion people around the world are robbed of the chance to better their lives and climb out of poverty, because they are excluded from the rule of law’. The CLEP also develops ‘… a comprehensive agenda for legal empowerment encompassing four pillars that must be central in national and international efforts to give the poor protection and opportunities…: access to justice and the rule of law, property rights, labour rights and business rights’. In this special section, which is edited and introduced by Stephen Golub, the idea of legal empowerment of the poor in general, and the report in particular, is discussed by Dan Banik, Julio Faundez, Jan Michiel Otto and Matthew Stephens.

The Commission on Legal Empowerment of the Poor has made a considerable contribution to the international development community by focusing attention on concrete legal needs of impoverished populations. As such, it constitutes a fine start for international, regional and domestic efforts to pull together a legal empowerment agenda that will directly benefit such groups. Nevertheless, the Commission's report falls short in key respects. It displays an inordinate faith in employing rational persuasion to grapple with a widespread problem it highlights – how to get self-interested politicians and other elites to forfeit their own advantage for the well-being of society. It is similarly stumbles in addressing how to best implement ambitious legal reforms, so that they have actual impact and do not simply exist on paper. And it does not reconcile the Commission's fundamentally top-down approach with an area of development that is bottom-up in nature. Going forward, it is important to build on the Commission's good start, but depart from its false and even counterproductive steps; the international community should instead draw on successful country-specific legal empowerment experience from diverse contexts. This features increased investment in civil society efforts to make the rule of law a reality, since such initiatives have a better track record than government-centered programs that mainly rely on elite good will. It more specifically involves enhanced long-term funding for domestic and international NGO efforts, both in the form of legal services for the disadvantaged and by integrating such services into broader socioeconomic development programs. The international community should also support impact-oriented applied research and move toward establishing a Millennium Development Goal for legal empowerment

Legal Empowerment of the Poor (LEP), which has recently been launched as a new conceptual and operational tool for poverty eradication, has attracted considerable attention in the face of claims that poverty persists partly because the poor do not enjoy legal rights or the power to exercise those rights. This essay provides a brief overview of the conceptual foundations of the LEP approach as reflected primarily in the main report of the Commission of Legal Empowerment of the Poor (CLEP). It thereafter critically examines the LEP's potential of promoting pro-poor governance and strengthening the protection and promotion of basic socio-economic and political rights of the poor. It argues that it is not only crucial to strengthen the theoretical underpinnings of the concept by recognizing the links between legal and political empowerment, but to also closely link the LEP with the general development experience so far.

With a constellation of high profile global thinkers and leaders, the Commission on Legal Empowerment of the Poor promised to reposition law and justice concerns at the centre of thinking on poverty alleviation. The Commission has succeeded in generating greater interest in the nexus between poverty, injustice and legal exclusion and is a welcome addition to the battle of ideas and concomitant battle over resources over how to raise the living standards of the poor and disadvantaged. However, this article, which analyzes the Commission's final report from the perspective of a legal empowerment practitioner, concludes that the Commission is an opportunity missed. The Commission's failure to properly tackle the political economy of reform and to justify its policy agenda with empirical data limits its value to the practitioner and will curtail its impact with policymakers.

The Commission on Legal Empowerment of the Poor (CLEP) states that workers in the informal economy can be legally empowered by bringing them within the framework of effective legal regulation, in particular, international labour standards. This paper acknowledges the value of extending rights to workers in the informal economy, but argues that CLEP's recommendations are impractical and unrealistic. It shows that neither international standards nor recent national legislation designed to promote the legalization of informal enterprises offers unqualified positive answers to resolve the plight of workers in the informal economy. Given the poverty of prevailing regulatory structures and the pervasive impact of inadequate structures of governance, workers in the informal economy justifiably distrust legal institutions and, as a consequence, do not, in the first instance, resort to legal institutions in their quest for empowerment. This paper offers examples of strategies that have successfully enhanced the social, political and economic power of workers in the informal economy. It concludes, however, that although the legal system has a role to play in consolidating the gains achieved by these strategies, law and legal institutions do not necessarily offer the best point of departure towards effectively empowering workers in the informal economy.

In this article I will first present the main thrust of Hernando de Soto's design, and then summarize praise and criticisms of his work. Next, I will address the question of to what extent De Soto's design is innovative. To this end I present a brief overview of past experience. I will then introduce some preliminary results of an international Leiden-based research project that has addressed the general causal relations between legalization, tenure security and poverty alleviation which constitute the basis of De Soto's argument. Most case studies of this project found that for De Soto's plans to be effective, a range of conditions had to be fulfilled. As long as these conditions are not fulfilled – which happens to be the unfortunate reality throughout the developing world – his plans will not work. Unfortunately, his proposals then are based on a whole set of unrealistic assumptions. Finally, in order to place De Soto's work in the context of today's development policies, with their emphasis on good governance and rule of law promotion, I will present a conceptual scheme which unpacks the key concepts of development, governance and the rule of law. In the concluding part I speculate on what we can learn from the success of De Soto's compelling theories, and from various criticisms of and responses to them How can these lessons be beneficial for a realistic rule of law promotion?